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Oregon Appellate Ct - May 3, 2017

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by: Sara Werboff • May 8, 2017 • no comments

Defendant Entitled to Acquittal For Failure to Perform Duties of Driver When Unaware of Accident Until Later

The court concludes that defendant was entitled to an acquittal for failing to perform the duties of a driver because there was no evidence that defendant knew or had reason to know of the accident when she was still at the scene of the accident. Defendant was driving her boyfriend’s car, and her boyfriend urged her to drive through a leaf pile at the side of the road. Defendant did so and felt a bump. Defendant continued driving home. Later, defendant’s brother, who was also in the car, learned that defendant had driven over two small girls who were hiding in the leaf pile. Both girls succumbed to their injuries. The brother told defendant and defendant was distraught, but did not return to the scene of the accident.

At trial, defendant moved for a judgment of acquittal and the trial court denied that motion, concluding that it was implicit under the facts that defendant was required to return to the scene. The court rejects that reading of the statute, ORS 811.705. The statute does not contain an implicit requirement that a driver return to the scene of an accident upon learning of the accident some time later.

State v. Garcia-Cisneros, 285 Or App 252 (2017) (Egan, J.)


Attorney Fees – Plain Error to Impose Attorney Fees – Defendant Did Not Invite the Error

The court concludes that the trial court plainly erred in imposing attorney fees and defendant did not assent to the imposition of fees. When counsel was appointed, the trial court determined that defendant could pay an approximately $1700 contribution fee. Defendant later executed a plea agreement with the state but each party submitted their own sentencing recommendation to the court. The state recommended an additional $1664 in attorney fees, and defendant’s recommendation was silent as to fees. The trial court imposed the fees and defendant did not object. The court concludes that the record does not support defendant’s ability to pay fees above the amount imposed as a contribution. Additionally, the record does not show that defendant agreed to the state’s recommendation, instead he submitted his own. The court further concludes that it should exercise its discretion to correct the error.

State v. Willis, 285 Or App 261 (2017) (Lagesen, J.)


Search and Seizure – Police Did Not Unlawfully Trespass on Defendant’s Private Drive

The court rejects defendant’s challenge to the denial of his motion to suppress, arguing that police trespassed on his property. Defendant lived on a private drive, which was marked by two signs saying “No Trespassing” and “Private Drive.” The police did not see those signs on the drive before turning onto defendant’s driveway. The court concludes that defendant did not objectively manifest an intention to exclude the public from using the drive to access his residence. The signs were not sufficient because they could mean that the owners were trying to exclude those who might put the property to their own uses but not visitors who desired to contact the residence. Additionally, “private drive” could mean that the road was privately owned but it was acceptable for visitors to approach. And there were no barriers to defendant’s property itself.

State v. Wilson, 285 Or App 296 (2017) (Garrett, J.)


Miranda Warnings – Warnings Were Not Rendered Inadequate by Officer’s Subsequent Statements and Defendant Knowingly and Voluntarily Waived Rights

The court concludes that defendant knowingly and voluntarily waived her Miranda rights. Defendant was arrested for DUII and given Miranda warnings. Defendant told the officer to stop talking to her, but the officer asked her questions related to her hair and eye color and where she lived. Defendant asked for an attorney and the officer said, “Well these aren’t the questions that you can really avoid by using, you would like an attorney.” Defendant continued to engage in off-topic conversation with the officer, eventually saying that she drove drunk. On appeal, defendant conceded that she initiated a discussion of the crime and that the officer’s statement was reasonably referring to “booking questions” that are excepted from Miranda. However, under the totality, she argued that the officer’s comment undermined the Miranda warnings and there was no valid waiver. The court rejects that argument. Defendant’s initial warnings were adequate and it was clear from the record that she understood her rights. Nothing occurred between the warnings and her re-engagement in conversation that would have required the officer to give new warnings.

State v. Fink, 285 Or App 302 (2017) (Garrett, J.)


Search and Seizure –Emergency Aid Exception Did Not Justify Warrantless Search of Defendant’s Home

The court concludes that police were not justified in conducting a warrantless search of defendant’s home under the emergency aid exception after they removed defendant and his roommate. The roommate had called 911 saying that defendant was threatening him, and defendant could be overheard yelling at the roommate on the call. The roommate told the officers on the call that he had barricaded himself in his room with a baseball bat. The officers entered the house, arrested defendant and removed the roommate. They asked if there were other people in the house and defendant said no and the roommate said, “I don’t know.” Police could not hear signs of other people, but searched the house to see if there were other unconscious or dead people, ultimately finding marijuana plants. The court concludes that police improperly relied on the emergency aid exception because they were searching to discover if anyone needed assistance, and not to respond to an immediate need to assist someone.

State v. Hamilton, 285 Or App 315 (2017) (Shorr, J.)


Per Curiam – Trial Court Erred in Imposing Restitution When Not Part of Plea Agreement

The court concludes that the trial court erred when it imposed restitution pursuant to defendant’s guilty plea. The plea agreement contained specific sentencing terms that did not include restitution. Nonetheless, the trial court held a restitution hearing where the parties disputed whether defendant agreed to restitution. The trial court offered that defendant could withdraw his plea but defendant requested that the plea agreement be enforced without restitution. The court agrees that defendant was entitled to specific performance of the plea agreement without restitution.

State v. Kendrick, 285 Or App 328 (2017) (per curiam)


Per Curiam – Trial Court Erred in Denying Plaintiff’s Fee Waiver Request

The court accepts the state’s concession that the trial court erred in denying plaintiff, a pro se inmate, a fee waiver for his action against DOC and other state employees. Under ORS 30.645(1), the court may not grant a fee waiver request when an inmate has three or more prior cases dismissed on the grounds that the case was frivolous or failed to state a claim. The state concedes that only two of plaintiff’s prior six cases qualified.

Thunderbird v. Dept. of Corrections, 285 Or App 331 (2017) (per curiam)


Per Curiam – Civil Commitment – Trial Court Did Not Have Authority to Commit when Prior Commitment Order Still in Place

The state concedes that the trial court erred in entering an order committing appellant when there was a prior commitment order that was not about to expire. Appellant was committed in Yamhill County. During the commitment period, she was sent to Lane County for a “trial visit.” Based on appellant’s conduct there, Lane County sought a new commitment order. Lane County did not abide by the requirements for trial visits under ORS 426.275. Additionally, the trial court lacked authority to enter the new commitment order.

State v. K.A.L., 285 Or App 333 (2017) (per curiam)


Per Curiam – Trial Court Plainly Erred in Imposing Attorney Fees

The court accepts the state’s concession that the trial court plainly erred in imposing $16,640 in attorney fees and exercises its discretion to correct the error.

State v. Lytsell, 285 Or App 336 (2017) (per curiam)


Per Curiam – Search Warrant Did Not Establish Nexus Between Illegal Activity and Defendant’s Trailer

The court accepts the state’s concession that the trial court erred in denying defendant’s motion to suppress because the search warrant affidavit failed to establish a nexus between the objects sought and defendant’s camp trailer.

State v. Murphy, 285 Or App 338 (2017) (per curiam)


Per Curiam – Court Cannot Review Defendant’s Claim Due to Lack of Trial Court Ruling

The court concludes that it cannot review defendant’s claim that the trial court erred when it failed to suppress defendant’s pre-Miranda statements because defendant failed to secure a ruling on that issue. The trial court denied defendant’s motion to suppress his post-Miranda statements but never made a ruling granting or denying defendant’s motion to suppress his pre-Miranda statements.

State v. Schmidke, 285 Or App 340 (2017) (per curiam)