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Oregon Appellate Ct - May 10, 2017

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by: Sara Werboff • May 12, 2017 • no comments

Miranda Warnings Were Not Required During Traffic Stop and DUII Investigation

The court concludes that defendant was not in compelling circumstances during a DUII investigation that took place on defendant’s driveway and he was not entitled to suppression of his statements. Defendant was stopped for a traffic violation on his own driveway. The officer then developed suspicion that defendant was driving while intoxicated. Defendant made several incriminating statements to the officer. The court rejects defendant’s argument that the stop went beyond a routine investigatory stop into compelling circumstances. In particular, the court notes that defendant was in his own driveway. And, although the officer told defendant he was not free to leave and did not allow him to walk into his house, the restrictions on his movements were not so significant to create compelling circumstances. Further, the duration of the encounter – 32 minutes – was also not so lengthy to create compelling circumstances. Finally, the officer’s statement to defendant that he believed defendant was too impaired to be driving did not convey to defendant that the officer had probable cause to arrest defendant.

State v. Nelson, 285 Or App 345 (2017) (Ortega, P.J.)

Defendant Could Not Invoke Right to Counsel in Non-Compelling Circumstances

The court rejects defendant’s argument that she invoked her right to counsel by handing an officer a preprinted care asserting her rights at the beginning of a traffic stop. Additionally, after consenting to performing FSTs, defendant twice asked to talk to her attorney, and the officer said she could talk to her attorney in the event she was arrested. The court rejects without discussion defendant’s argument that the circumstances were compelling. The court then explains that in non-compelling circumstances, officers were permitted to question defendant even after she invoked her rights and her statements were not involuntary.

State v. Anderson, 285 Or App 355 (2017) (Ortega, P.J.)

Defendant Entitled to Acquittal on Manufacture of a Destructive Device

The court concludes that the trial court applied an incorrect definition of pyrotechnic device and the trial court’s express factual findings established that the device at issue met that definition. Manufacture of a “destructive device” excludes “pyrotechnic devices.” Here, defendant had two devices that he said were fireworks or firecrackers and he wanted to hear them “go boom.” The court explains that a pyrotechnic device is a “firework” and “fireworks” are “combustible or explosive substances, including ‘bombs’ that are ‘prepared for the purpose of providing a visible or audible effect.’” The trial court expressly found that defendant’s primary purpose in designing the devices was to provide a visual or audible effect, and therefore he should have been acquitted of the offense.

State v. Bluel, 285 Or App 358 (2017) (Duncan, P.J.)

Termination of Parental Rights – Juvenile Court Erred in Excluding Evidence but Termination was Proper

The court concludes that evidence offered to establish grandfather’s suitability as a guardian was relevant to whether termination of father’s rights was in the best interest of his children, but, after considering that evidence on de novo review, concludes that DHS established the requirements for terminating father’s rights. Grandfather took steps to become a guardian for the children. The juvenile court excluded that evidence from the TPR trial. The court explains that alternatives to termination, such as guardianship, are relevant in a TPR trial when the parent contends that termination is not in the best interest of the child. The court then, reviewing de novo and considering that evidence, concludes that due to father’s personality disorders and the children’s special needs, father could not become a suitable parent in a reasonable amount of time. Grandfather also would not be a suitable placement because of his inability to draw boundaries with the children’s parents and the children’s special needs.

DHS v. C.P., 285 Or App 371 (2017) (Duncan, P.J.)

Computer Crime – Providing False Info to Banks Not Sufficient Proof of “Use” of a Computer

The court concludes that defendant was entitled to an acquittal on counts of computer crime. Defendant gave fraudulent information to bank employees, who then entered that information into the bank’s computer system. The state alleged computer crime, arguing that defendant “used” the computers. The court considers the text, context, and legislative history and concludes that “use” is not as broad as the state suggests. Where defendant did not directly access the computer system, he did not use a computer within the meaning of the computer crime statute.

State v. Tecle, 285 Or App 384 (2017) (DeVore, J.)

Post-Conviction Relief – PCR Court Did Not Err in Denying Petitioner’s Claim

The court affirms the PCR court’s denial of petitioner’s PCR petition contending that trial counsel was ineffective, in his underlying sex abuse case, for not objecting to evidence that the abuse of the victim started in Tennessee and continued in Oregon. On appeal, petitioner contends that that evidence was inadmissible under OEC 404 and 403. The court concludes that that argument is unpreserved. Petitioner also contends on appeal that trial counsel was ineffective for failing to request a limiting instruction, but the court also declines to consider that issue because petitioner only alleged that counsel was ineffective for failing to object to the evidence, which is a different claim.

Johnson v. Myrick, 285 Or App 395 (2017) (Lagesen, J.)

Juvenile Dependency – Judgments Not Appealable Because of Lack of Adverse Affect

The court concludes that the review judgments in a juvenile proceeding subject to the Indian Child Welfare Act (ICWA) are not appealable because the judgments maintain the existing conditions of the wardship and as a result, the children have not be adversely affected by any unfavorable ruling.

In a per curiam opinion, the court concludes that for substantially the same reasons, father’s judgment is also unappealable.

DHS v. A.B.B., 285 Or App 409 (2017) (Lagesen, J.)

DHS v. T.J.D.J., 285 Or App 503 (2017) (per curiam)

Juvenile Dependency – Juvenile Court Did Not Err in Changing Permanency Plan

The court concludes that there is sufficient evidence that DHS made reasonable efforts and mother had not made sufficient progress for the children to return safely home. Mother contended that DHS had not made reasonable efforts because it did not facilitate therapeutic visitation with her children after the children refused to participate. The court explains that DHS provided numerous other services to mother and that it was not unreasonable for DHS to conclude that it would harm the children to have visits when they adamantly refused them. The court also concludes that the record supports the juvenile court’s conclusion that despite the services she did complete, mother continued to engage in harmful behaviors.

DHS v. M.K., 285 Or App 448 (2017) (Garrett, J.)

Post-Conviction Relief – Petitioner Attached Sufficient Support of PCR Claim

The court concludes that the PCR court erred in dismissing petitioner’s petition with respect to one of his claims. The PCR court concluded that petitioner failed to attach sufficient materials to address each element of his claim and, if substantiated, would permit the PCR court to provide relief. Petitioner alleged that trial counsel failed to adequately investigate and present a self-defense claim in his murder trial. Petitioner attached the trial and sentencing transcript. Petitioner later supplemented with two of his own affidavits. The state argued that the transcript precluded petitioner from winning his claim but the court disagrees. The transcript does not directly refute petitioner’s claim that trial counsel failed to present self-defense.

Judge DeVore dissents on the basis that a “focus on the facts and proceedings shows that petitioner’s averments do not withstand comparison with the underlying trial record.” In short, Judge DeVore argues that the facts of the case foreclosed any argument of self-defense.

Holcomb v. Taylor, 285 Or App 462 (2017) (Flynn, J.) (DeVore, J. dissenting)

Per Curiam - Stalking – State Concedes Communications Were Not Contacts

The court accepts the state’s concession that communications from defendant were not threats of imminent and serious personal violence and could not constitute a contact as required by the stalking statute.

State v. Hilde, 285 Or App 498 (2017) (per curiam)

Per Curiam - Juvenile Dependency – Jurisdictional Judgment Affirmed but Two Grounds Reversed

The court remands for entry of an order striking two bases for jurisdiction that DHS failed to establish, but finding jurisdiction on other bases alleged in the petition. DHS v. S.A.S., 285 Or App 500 (2017) (per curiam)

Per Curiam – Claim of Error is Unreviewable

The court affirms defendant’s probation revocation and 24-month prison sentence, finding that the claim of error is unreviewable under ORS 138.222(2)(d) because it was a result of a stipulated sentencing agreement.

State v. Suitter, 285 Or App 506 (2017) (per curiam)