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Oregon Appellate Ct - March 29, 2017

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by: Sara Werboff • March 31, 2017 • no comments


Search and Seizure - Police Lacked Reasonable Suspicion to Extend Traffic Stop

The court concludes that the trial court erred in denying defendant’s motion to suppress marijuana and statements because it determined that police had reasonable suspicion when they extended a traffic stop. Defendant and codefendant were traveling together in a car, and defendant’s mother was traveling in her car behind them. A patrol officer saw them and thought the mother’s car was traveling too close and decided to pull her over, when he then observed her car weaving in her lane. The officer concluded that she was weaving deliberately and perhaps “baiting” him to pull her over and allow defendant’s car to travel freely. The officer was aware of this practice from other officers but had never observed it himself or had any training on it. The officer requested assistance. The officer, while waiting for another officer, followed the cars for about 20 minutes. The officers pulled over both cars after observing defendant change lanes without signaling.

After pulling over defendant, the officer observed that defendant’s car was messy and smelled of cigarettes and that defendant was nervous. Defendant explained that his mother was driving the second car. The officer confronted defendant about the “baiting” activity. The officer pursued a drug investigation, ultimately finding marijuana in the mother’s car. On appeal, the court concludes that the officer did not have reasonable suspicion of drug activity when he began his criminal investigation. The court notes that although the parties did not argue about the officer’s subjective belief, the officer did not say he suspected defendant of committing a specific crime but rather that defendant was engaged in criminal activity generally. But even assuming he did have a subjective belief, it was not objectively reasonable. In particular, the court explains that the “baiting” evidence does not amount to reasonable suspicion.

In a per curiam opinion, the court concludes that codefendant is also entitled to a reversal.

State v. Tapp, 284 Or App 583 (2017) (Lagesen, J.)

State v. Peterson, 284 Or App 618 (2017) (per curiam)


Challenges to Uncharged Sexual Abuse Unpreserved and Restitution Award Supported by the Record

The court concludes that the trial court did not err in admitting prior uncharged sexual conduct evidence and imposing restitution. Defendant was convicted of sexual abuse of his stepson, M. At trial, the state sought to introduce evidence from M’s uncle that he had seen defendant put his hands down M’s pants. The trial court admitted the evidence because it was relevant for the nonpropensity purpose of showing defendant’s sexual inclination toward the victim. The court concludes that, on appeal, defendant’s arguments that the evidence was not relevant or its prejudicial effect outweighed the probative value are all unpreserved. With respect to defendant’s arguments against restitution, the court concludes that the record was sufficient to support a restitution award for M’s outpatient drug and alcohol treatment and residential mental health treatment because there was a causal relationship between the abuse and M’s need for treatment.

State v. Woods, 284 Or App 559 (2017) (Ortega, P.J.)


DNA Testing - Defendant Did Not Make a Prima Facie Showing of Actual Innocence

The court concludes that the trial court properly denied defendant’s motion for DNA testing because his affidavit did not establish a prima facie showing of actual innocence. Defendant sought DNA testing for a jacket that was worn during the robberies for which he was convicted. The state had tested the jacket and found DNA for three individuals, one of whom was defendant. In his affidavit, defendant swore that the jacket was not his and he had never worn it, and that retesting would reveal as much. Defendant further swore that the retesting then would reveal that the state’s original results were “fabricated evidence.”

The court explains that defendant must establish a logical relationship between the presumption that independent testing would not find his DNA on the jacket and his theory of defense, in such a way as would lead to a finding of actual innocence. The court concludes that defendant has not done so, because he included only bare allegations that the DNA test results were wrong or fabricated and failed to substantiate that claim with evidence.

State v. Jenkins, 284 Or App 567 (2017) (Ortega, P.J.)


Juvenile Dependency - No Error in Maintaining Permanency Plan of Reunification

The court upholds the juvenile court’s decision not to change a child, M’s, permanency plan to adoption. M appealed the juvenile court’s decision, arguing that there was an insufficient showing that with further efforts she could be returned to her mother’s care within a reasonable period of time. The juvenile court took jurisdiction over M in light of mother’s mental health and substance abuse issues. Between the first and second permanency hearings in this case, mother had made substantial, though imperfect, progress on those issues, particularly her substance abuse issues. DHS determined that it was not yet time to return M to her mother’s care but supported continuing the reunification plan. The court agrees with mother’s argument that the juvenile court needed to find “no compelling reasons not to file a termination petition” and here M did not prove that element for a change in plan.

DHS v. M.S. 284 Or App 604 (2017) (Lagesen, J.)


Per Curiam - OEC 403 Balancing Challenge is Unpreserved

The court affirms defendant’s convictions concluding that defendant’s challenge to the admission of prior acts of child sexual abuse under OEC 403 is unpreserved.

State v. Louden, 284 Or App 611 (2017) (per curiam)