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Oregon Appellate Ct - March 8, 2017

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by: Sara Werboff • March 10, 2017 • no comments

Evidence - Victim's Statements Were Admissible as Evidence of His State of Mind

In this aggravated murder case, the court reverses defendant's convictions, concluding that the trial court erred when it excluded statements contained in the victim's emails. The court concludes that those statements were relevant to the victim's state of mind and were not hearsay. The court further concludes that the error was not harmless because the statements contained in the emails were qualitatively different than other evidence that was admitted. Defendant was convicted of murdering G. Both men were enmeshed in the drug-dealing world, but G had the outward appearance of being a successful naturopathic physician. G was an investor in defendant's drug operation, supplying defendant with money to purchase drugs for resale. On the morning when G was shot, the two men were transporting $20,000. Defendant admitted to shooting G and taking the money when he fled, but contended that G had pulled the gun on him first, tried to take the money that he believed defendant owed him, and was shot in self-defense. In support of the defense, defendant sought to introduce evidence that G was losing money rapidly and was becoming increasingly paranoid that his employees were stealing from him. Defendant in particular sought to introduce emails that G wrote to various people that would be probative of G's state of mind. The trial court admitted some statements in the emails but excluded emails that were written several months before the shooting or because they were about "facts" and therefore "not really a state of mind."

The court concludes that the emails were relevant as direct or circumstantial evidence that G was concerned about his finances. To the extent that the emails contained factual details about G's finances, those were relevant to provide factual context for his other statements that were evidence of his state of mind. And, the evidence that G's desperation over money increased over time made it more likely that G had a motive to act desperately and violently towards defendant. The court also concludes that the evidence is admissible under OEC 803(3) as evidence of G's state of mind and the factual statements providing context are not hearsay. To the extent that the trial court's decision was discretionary under OEC 403, the court concludes that the trial court improperly weighed the probative value of the evidence. Finally, the error excluding the emails was not harmless. The emails went to a central issue in the case and were qualitatively different than other evidence of G's behavior.

State v. Bement, 284 Or App 276 (2017) (Flynn, J.)


Expert Testimony - Trial Court Did Not Err In Limiting Expert's Testimony

The court concludes that the trial court did not err in limiting testimony from defendant's expert witness. Defendant was accused of child sexual abuse by the five-year-old victim. Defendant wanted to present testimony from a neuropsychologist, Dr. Stanulis, about brain development in young children and false memory. Following a pretrial hearing where Stanulis testified, the trial court held that he could testify to several general principles. Stanulis ultimately did testify at trial but to less than he had at the pretrial hearing. Defendant first challenged the trial court's exclusion of testimony that children confuse fantasy and reality. The court concludes that the trial court properly excluded that statement as being too conclusory and exceeding the scope of permissible opinion testimony. Defendant next contended that the trial court erred in excluding his testimony that the forensic interviewer failed to establish that the child could reliably answer questions as a comment on credibility. The court concludes this claim of error is unpreserved, because defendant failed to clarify whether Stanulis was offering a permissible opinion about the deficiencies of the interview or impermissible credibility testimony. Finally, the court rejects defendant's argument that Stanulis was improperly barred from offering evidence about scientific studies. The court concludes that part of defendant's argument was unpreserved because defendant failed to make an offer of proof. The court also concludes that defendant misunderstood the trial court's ruling as being categorical. Instead, defendant was permitted to introduce evidence of some of the studies, provided he did not discuss their use in appellate case law.

State v. Clark, 284 Or App 197 (2017) (Ortega, P.J.)


Juvenile Dependency - DHS Made Reasonable Efforts to Ameliorate Mother's Mental Health Issues

The court affirms the juvenile court's order changing the permanency plan for mother's three children from reunification to adoption. Mother contended that DHS failed to make reasonable efforts to ameliorate mother's mental health issues, that were one basis, out of several, for the juvenile court's jurisdiction. This case has a complicated procedural history. At one point, the juvenile court had terminated mother's parental rights, and DHS then stopped providing services to her, but that decision was later vacated as the result of a successful appeal. DHS then resumed its contact with mother. The juvenile court then held the permanency hearing at issue here and mother contended that DHS had not made reasonable efforts. The court concludes that there is sufficient evidence to support the juvenile court's finding that DHS made reasonable efforts to ameliorate mother's mental health issues, including multiple referrals for counseling and ongoing contact with mother's mental health provider. DHS's failure to make efforts for a three-month period was not dispositive of the issue when viewing DHS's efforts over the duration of the case.

DHS v. M.A.H., 284 Or App 215 (2017) (Ortega, P.J.)


Parole - Rejecting Petitioner's Challenges to Denial of Parole

The court affirms the board's decision denying petitioner parole and deferring his parole eligibility date for five years on the basis that petitioner has a mental or emotional condition predisposing him to the commission of a crime that renders him a danger to others and that petitioner remained "a danger or a menace." The court summarily rejects petitioner's argument that the board obstructed his right to subpoena witnesses to his parole hearing. The court also rejects petitioner's argument that the board erred by relying on an examination by a psychologist employed by the board rather than a psychiatrist employed by the state hospital because that argument is foreclosed by the court's case law. The court also rejects petitioner's argument that the board violated ex post facto provisions when it did not rely exclusively on the conclusion of the mental health examiner when making its parole determination. The board was not required to do so under the statutes operative at the time of petitioner's crime. Finally the court rejects petitioner's argument that the board's order is not supported by substantial evidence and that the board's order was premised on the unlawful retroactive application of newly enacted laws.

Smith v. Board of Parole and Post-Prison Supervision, 284 Or App 226 (2017) (Duncan, P.J.)


Search and Seizure - Officer's Pat-Down of Defendant Not Justified on Officer Safety Grounds

The court concludes that evidence obtained during a pat-down of defendant should have been suppressed because it was not justified by the officer safety exception. Police were called about a vehicle that had run off the road. The vehicle was stolen from a dealership. When the officer arrived, the vehicle was empty and witnesses described two men who had run from the scene. While the officer was waiting for a tow truck, defendant walked up the road in the direction of the officer and the witnesses and the witnesses identified him as one of the men who fled. The officer drew his weapon and ordered defendant to get on his knees and put his hands on his head. Defendant was about 30 feet away. He remained in that position until a second officer arrived and then the first officer conducted a pat-down, finding a switchblade knife. The state contended that the pat-down was lawful on officer safety grounds because the officer suspected defendant of being a car thief, he knew from training and experience that car thieves can be armed, defendant was walking directly towards him, the cover officer was several minutes away, and defendant had an associate whose whereabouts were unknown. The court acknowledges that the foregoing could lead a reasonable officer to be apprehensive of defendant, however, it concludes that there was no objectively reasonable belief that defendant presented an immediate safety threat at the time the officer actually conducted the pat-down. At that time, defendant had demonstrated that he was being cooperative and submissive and the second officer had arrived and the scene was under control.

State v. Kennedy, 284 Or App 268 (2017) (Garrett, J.)