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Oregon Appellate Ct - May 17, 2017

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by: Sara Werboff • May 22, 2017 • no comments

Kidnapping – Trial Court Did Not Plainly Err in Entering Conviction for Kidnapping

The court rejects defendant’s argument that there was insufficient evidence to convict him for first-degree kidnapping. Defendant resided with his parents in a remote cabin. The cabin was eight to 10 miles from the nearest neighbor and not visible from the road. Late one morning, while defendant’s father was at work, defendant and his mother were both outside. Defendant went inside, got a shotgun, and went back outside and pointed the shotgun at his mother. After about 20 minutes, defendant put the gun down and went back inside. Defendant’s mother took the gun, got into her car, and went to a neighbor’s house. Mother called father and left a message, which father did not get until he returned to the cabin around 1:30 pm. Defendant argued that there was insufficient evidence that he held his mother in a place she was not likely to be found. The court explains that defendant failed to preserve this claim. The court concludes that defendant failed to establish that the trial court plainly erred by not sua sponte acquitting him of kidnapping. A reasonable factfinder could conclude, based on the cabin’s remote location and the timing of the offense, that defendant kidnapped his mother.

State v. Litscher, 285 Or App 508 (2017) (Hadlock, C.J.)

Sentencing – Trial Court Erred in Failing to Merge Guilty Verdicts and Remand for Resentencing is Required

The court concludes that the trial court plainly erred when it failed to merge the guilty verdicts for delivery of methamphetamine to a minor with delivery of methamphetamine. The court further concludes that that error requires it to remand defendant’s cases for resentencing. In this appeal, defendant challenged sentences imposed in four cases that were consolidated for trial. After conceding that the trial court erred in failing to merge the guilty verdicts, the state argued that remand in only that case was required. Defendant argued that when the trial court sentenced all of the consolidated cases together, they became “the case” for purposes of ORS 138.222(5)(b), the remand statute. The court analyzes the text, context, and legislative history of ORS 138.222(5)(b) and concludes that defendant is correct, all cases tried together constitute “the case” for purposes of resentencing. That applies to cases that were filed separately but sentenced together.

State v. Sheikh-Nur, 285 Or App 529 (2017) (Armstrong, P.J.)

Post-Conviction Relief – PCR Court Applied Incorrect Brady Standard and Remand Required

The court concludes that the post-conviction court committed legal error when it denied petitioner’s Brady claim because there was no “prosecutorial misconduct.” That is not a requirement of a Brady claim. The court further rejects the state’s proffered alternative bases for affirming the post-conviction court’s decision because the state did not raise them below. The court also concludes that the post-conviction judgment does not meet the requirements of ORS 138.640(1) on petitioner’s ineffective assistance claim and that remand is required because it is unclear whether the post-conviction court explicitly reached and decided that claim. The factual issues pertinent to that claim must be decided by the post-conviction court in the first instance.

Fisher v. Angelozzi, 285 Or App 541 (2017) (Ortega, J.)

Post-Conviction Relief – PCR Court Did Not Err in Dismissing Successive Petition

The court upholds the post-conviction court’s dismissal of his successive petition arguing that his sentence is unlawful under Miller v. Alabama, 567 US 460 (2012). Petitioner was a juvenile when convicted and given an indeterminate life sentence for aggravated murder, as well as a lengthy concurrent sentences for other crimes, including an 800-month sentence. As it did in recent cases, the court concludes that petitioner’s successive petition did not meet the requirements of the escape clause because petitioner had previously challenged the constitutionality of his sentence. The court also rejects petitioner’s vertical proportionality challenge to his 800-month sentence because petitioner could have raised that issue before. Finally, the court rejects petitioner’s claim that his procedural default should be excused based on ineffective assistance of counsel in his original post-conviction proceeding.

White v. Premo, 285 Or App 570 (2017) (Sercombe, P.J.)

Evidence – Interpreter’s Translation of Defendant’s Confession was Inadmissible Hearsay

The court concludes that the trial court erred in admitting a police interpreter’s translation of defendant’s confession, given in Spanish, in this sexual abuse case. During a police interrogation, defendant admitted to sexual abuse of the victim. At trial, defendant acknowledged that his Spanish statements were admissible as a party opponent, but that the interpreter’s translation was an extra layer of hearsay that needed a separate exception. The trial court admitted the statements. On appeal, the state takes a different approach, arguing that the statements are nonhearsay because they were made by the party’s agent, but the court does not consider that argument because it was not raised below.

Judge Sercombe dissents, arguing that the translation was offered as nonhearsay to show that a translation was made and not offered to show the correctness of the translation.

State v. Ambriz-Arguello, 285 Or App 583 (2017) (Tookey, J.) (Sercombe, J., dissenting)

Post-Conviction Relief – Counsel Ineffective for Failing to Object to Trial Court’s Improper Comments

The court concludes that petitioner’s trial counsel rendered inadequate assistance of counsel when counsel failed to take action to address the trial court’s repeated interruptions and comments on the trial. In the underlying case, petitioner was accused of assault against his daughter. The trial court repeatedly interrupted defense counsel and certain witnesses. The effect of the trial court’s interruptions was to convey to the jury that the trial court was biased against petitioner and his counsel, risking his right to a fair trial. The court explains that it is not an acceptable tactical or strategic choice to fail to take action in response. Further counsel’s inaction prejudiced petitioner. Even if the trial court was unlikely to grant a motion for mistrial, its response would nonetheless have a tendency to affect the proceedings. The trial court would either cure its behavior or petitioner would have a meritorious appellate claim.

Maney v. Angelozzi, 285 Or App 596 (2017) (DeHoog, J.)

Restraining Orders – Sufficient Evidence in Record to Support FAPA Order

The court rejects respondent’s challenge that there was insufficient evidence to support a FAPA restraining order obtained by his wife. The court also concludes that respondent’s other challenges to the order are unpreserved. Respondent and petitioner presented different versions of a heated argument that preceded petitioner obtaining a restraining order. The trial court credited petitioner’s version of events, which were sufficient to support the order.

M.D.D. v. Alonso, 285 Or App 620 (2017) (DeHoog, J.)

Stalking Protective Orders – Insufficient Evidence to Support SPO

The court agrees with respondent that the petitioner failed to prove that two incidents constituted impermissible “contacts” under the civil stalking statute. Respondent and petitioner were high school classmates. During the first incident, petitioner overheard respondent say to a group of friends “wouldn’t it be funny if I maced her” and believed the statement was directed at her. The second incident occurred when respondent directed another student to smear sardines on petitioner’s car. The court concludes that the first incident does not qualify as a contact because it was speech and it was not an unequivocal and unambiguous threat. The court concludes that the second incident did not qualify because it did not give rise to subjectively or objectively reasonable alarm or coercion.

D.M.G. v. Tepper, 285 Or App 646 (2017) (Flynn, J.)