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Oregon Appellate Ct - May 24, 2017

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by: Sara Werboff • May 26, 2017 • no comments

Telephonic Harassment Requires Proof that Caller Caused Phone to Make Audible Sound

The court reverses defendant’s telephonic harassment conviction, concluding that the state was required to prove that defendant caused the victim’s phone to emit an audible sound. The state charged defendant with telephonic harassment under ORS 166.090(1)(b), which provides that a caller intentionally harasses or annoys another person by causing that person’s telephone to ring. The state established that defendant left voicemails for the victim after being told not to call. Defendant moved for a judgment of acquittal arguing that there was no proof that defendant caused the phone to emit an audible sound. The court explains that the plain meaning of the text – “to ring” – requires proof of an audible sound. The state relied on legislative history to argue that the legislature intended to criminalize “trespasses” onto a person’s phone, but the court concludes that the support for that proposition in the legislative history does not overcome other aspects of that history and the plain meaning. Notably, there is another subsection of the harassment statute that likely would capture defendant’s conduct here, but the state charged the case under ORS 166.090(1)(b) only.

State v. Shifflett, 285 Or App 654 (2017) (Ortega, P.J.)

Sentencing – Trial Court Plainly Erred in Imposing Two 60-Month Firearm Minimums but Defendant was Not Prejudiced by Error

The court accepts the state’s concession that the trial court plainly erred when it imposed a 60-month firearm minimum on more than one of defendant’s convictions, but declines to exercise its discretion to correct the error because defendant was not prejudiced by it. Defendant was not prejudiced by the error because, if the court were to remand the case for resentencing, the trial court would resentence defendant in a way that left his total prison time undisturbed. Defendant was serving a 90-month mandatory minimum sentence for attempted murder and the firearm minimums were imposed concurrently with that sentence. Because the trial court already imposed the least onerous sentence allowed, there would be no practical effect in remanding for resentencing. The court also rejects defendant’s argument that in a future case, a trial court may miscalculate the number of firearm minimum sentences defendant received as two rather than one. The court explains that it is not the number of “sentences” that is relevant to that calculation but rather whether the defendant has previously be “punished or imprisoned.” Although defendant was given two sentences, he was only “punished” under ORS 161.610(4)(a) because he was given five-year terms.

State v. Allen, 285 Or App 667 (2017) (Ortega, P.J.)

Evidence – Defendant’s Prior Convictions Were Inadmissible

The court concludes that defendant’s prior robbery convictions were irrelevant to any theory advanced by the state and their admission was not harmless. Defendant was charged with robbery, and the state anticipated that defendant would present a defense that he did not intend to commit robbery. The state moved in limine to introduce prior robbery convictions to prove intent, motive, plan, absence of mistake or accident. The state did not argue that the convictions would otherwise be admissible as propensity evidence. Notably, the state sought to introduce the fact of the convictions but not the underlying circumstances of the robberies. The court explains that by introducing only the convictions, the state was relying on a propensity inference – because defendant had been previously convicted of committing robberies, he had a propensity to commit robberies. In order to establish relevance under the non-propensity theories, the state would have had to introduce more evidence about the prior conduct. The court declines to consider the admissibility of the convictions as propensity evidence because it is raised for the first time on appeal.

State v. Jones, 285 Or App 680 (2017) (Duncan, P.J.)

Juvenile Dependency – Permanency Judgment Supported by Sufficient Evidence

The court concludes that the juvenile court did not err in concluding that parents had not made sufficient progress to allow the children to return safely home, and changing the permanency plan from reunification to guardianship. Parents contended that their participation in services as well as their success in caring for an infant without state intervention was proof of sufficient progress. The court explains that, although parents had participated in a number of services, there was sufficient evidence that they had not made sufficient progress because they failed to comply with a number of recommendations from their mental health providers. The court also disagrees that parents’ ability to care for an infant is determinative of their ability to care for their older children.

DHS v. M.D.P., 285 Or App 707 (2017) (Duncan, P.J.)

Restitution – Wildlife Valuation Statute Did Not Establish Economic Damages

The court reverses a restitution award. Defendant was charged with unlawful possession of a raptor after a dead red-tailed hawk was found in her freezer. The trial court ordered defendant to pay $2,000 in restitution based on ORS 496.705, which establishes statutorily-prescribed “damages” that the state may obtain in a civil suit for the unlawful taking or killing of wildlife. The state did not present any other evidence of the hawk’s value. The court concludes that the statutory damages in ORS 496.705 do not establish the value of wildlife for the purposes of restitution. First, the court explains, the restitution statute permits recovery for only “economic damages” and statutory damages may serve other purposes than compensating for economic losses. Second, the restitution statute requires proof of the damages sought and requires the state to present evidence to support the restitution claimed. But statutory values are not evidence. Finally, the restitution statute provides no exception to the requirement that the state prove an economic loss through evidence, and the legislature did not say that the statutory values in ORS 496.705 provide the economic value of wildlife for purposes of restitution.

State v. Shockey, 285 Or App 718 (2017) (Lagesen, J.)

Per Curiam – Reversing Attorney Fees

The court concludes that the trial court plainly erred in imposing $80 in attorney fees. The court rejects the state’s argument that because the record shows defendant owned a truck, there was at least a reasonable dispute as to whether he could pay the small amount of fees. The court explains that there is no affirmative indication in the record that the trial court made the required findings and exercises its discretion to correct the error in light of defendant’s other fines and the fact that defendant would be required to pay collection penalties if he did not pay his fines and fees.

State v. Noyce, 285 Or App 741 (2017) (per curiam)

Per Curiam - Juvenile Dependency – Remanding for Entry of Judgment on Other Jurisdictional Grounds

The court agrees with DHS that the evidence at the jurisdictional hearing was insufficient to prove that mother had a substance abuse problem but was otherwise sufficient to support jurisdiction on the basis of mother’s mental health issues.

DHS v. V.I.M., 285 Or App 744 (2017) (per curiam)