Oregon Appellate Ct - May 4th, 2016
by: Aalvarez and Cmaloney • May 5, 2016 • no comments
Traffic Stop – Not a Show of Authority to Walk a Drug Dog Around the Car But Still A Violation of the 4th Amendment Where no Reasonable Suspicion to Justify Initial Stop
Under Article I, section 9, of the Oregon Constitution, for a passenger to be seized, the police must have made a “show of authority” after the initial traffic stop that was constitutionally significant as directed at the passenger. Here, defendant was a passenger in a stopped car that she owned. Both the defendant and driver refused consent to search the car with a drug dog. The officer did not further pressure either occupant of the vehicle for consent, or engage them in further conversation. However, the officer proceeded to walk around the car where the dog alerted to the odor of drugs. The officer did not direct the defendant to stay in the car (or to leave), never had the dog in front of the door that defendant would have used to leave, and at all times, was moving the dog further away from where the defendant was seated in the car. The Court of Appeals found that nothing in the record suggested that any of the officers’ tone, manner, or conduct was threating or coercive toward the defendant or otherwise elevated the encounter to the level of a seizure by conveying to the defendant that the officers would not allow her to leave. The Court of Appeals held that under the totality of the circumstances, the officer’s conduct did not constitute a seizure under Article I, section 9. However, under the Fourth Amendment to the United States Constitution, defendant was seized for the duration of the stop when the officer stopped the car in which she was a passenger. The Court of Appeals held that because the officers failed to articulate facts to establish objective, reasonable suspicion to justify the initial stop of the car, the defendant was unlawfully seized under the Fourth Amendment, and the evidence obtained as a result of the stop of the car must be suppressed. Reversed and remanded. State v. Sexton, 278 Or App 1 (2016)
PCR – No Prejudice Results From Counsel's Failure to Seek Dismissal of Counts When the Trial Court Could Have and Would Have Imposed the Same Sentence Regardless
No prejudice results from counsel’s failure to seek dismissal of counts when the trial court could have legally imposed the same sentence in the absence of those counts and there is evidence the trial court would have imposed the same sentence regardless. In this case, the post-conviction court held that the trial attorney was constitutionally ineffective for failing argue in a stipulated facts trial that the facts did not constitute kidnapping in the first degree under State v. Wolleat. However, the post-conviction court held petitioner was not prejudiced by counsel’s inadequate assistance because even if the kidnaping counts had been dismissed there record indicated that the judge would still have sentenced the defendant to 265 months in prison for the remaining counts. The Court of Appeals held that the post-conviction court did not err in concluding that the trial court could have legally sentenced petitioner to the same sentence in the absence of the two kidnapping counts or in finding that the trial court would have imposed the same sentence. Affirmed. Rubi v. Nooth, 278 Or App 16 (2016)]
Eyewitness Identification – No Abuse of Discretion to Admit an in Court ID After Witness Remembers the Defendant Only After Being Shown a Photograph in Court
Once the proponent of the evidence has produced evidence sufficient for the factfinder to find that the witness has personal knowledge and that the identification is rationally based in the witness’s perception, and the court has determined that the identification is helpful to the fact finder, the decision whether to exclude an identification as unfairly prejudicial is committed to the discretion of the trial court. In this case, the witness was unable to identify anyone in the courtroom, including the defendant, as the person who committed the assault. However, the witness testified she was told the defendant’s name before trial. The state then showed the witness a photograph of defendant’s face. A small portion of the collar of defendant’s jail-issued shirt and sweatshirt were also visible in the photograph. The witness then identified the person in the photograph as the person who committed the assault. When the court asked the witness how she was able to make that identification, the witness stated, “Because I remember.” The trial court then admitted the photograph. The Court of Appeals was troubled by the witness’s sudden “improvement” in memory. However, the court held that the trial court did not abuse its discretion when it admitted the photograph. The trial court reasoned that the clothing of the defendant wore in the photograph was “not particularly identifying” and that defendant’s cross-examination could adequately address issues raised by the witness’s testimony identifying the person in the photograph as the perpetrator – testimony that included the witness’s admission that her caseworker had given her the name of the defendant. The trial court did not abuse its discretion in so reasoning. Affirmed. State v. Engle, 278 Or App 54 (2016)
Luring a Minor – “Explicit Verbal Description”
In a prosecution for Luring a Minor, the term “explicit verbal description * * * of sexual conduct” means the “explicit identification of sexual conduct when that identification is intended to bring a graphic sexual image to the mind of the recipient.” Here, the Court of Appeals affirms the defendant’s conviction for Luring a Minor by concluding that the trial court did not err in finding that a reasonable fact finder could find that the defendant used an “explicit verbal description * * * of sexual conduct,” when he texted the victim “I really wanna bang [you].” The court disagreed with the defendant’s contention that the message, although explicit, was not a description for the purposes of the Luring of a Minor statute. According to the Court of Appeals, a “description” can be accomplished “with few or many words, as long as the words chosen are intended to bring a graphic sexual image to the mind of the recipient, that is, the words themselves are not necessarily required to be graphic.” In this case, a reasonable fact-finder could find that the defendant intended to bring a graphic sexual image in the mind of the victim by communicating to her the sexual act he wanted to perform with her (i.e. “I want to bang you.”)
Judge Armstrong dissents, concluding that the statute only reaches communications that “convey to minors certain types of sexually explicit information for the purpose of inducing them to sexual conduct.” In analyzing the context and legislative history of the statute, passed to prevent the grooming of victim’s in child sex abuse cases, Judge Armstrong explained that:
"The legislature chose the terms that it did to identify the communicative materials that it intended to prevent people from giving to children to induce them to engage in sexual conduct. Contrary to the majority’s view, the text message that defendant sent to the victim to induce her to engage in sexual conduct did not contain an explicit verbal description of sexual conduct." State v. King, 278 Or. App. 60 (2016)
Resentencing a Defendant to a Longer Sentence After a Successful Appeal
The trial court did not err in resentencing the defendant to a longer sentence than previously imposed after his successful appeal because the trial court followed the procedure for doing so set forth in Partain. First, the trial court stated its reasons for doing so on the record. Second, the trial court’s sentencing was based on facts which the initial sentencing court was unaware. The resentencing court was able to hear testimony from some of defendant’s victims about the long-term effects the crime had on them and also learned about evidence of the defendant’s misconduct while incarcerated. Lastly, the court explained that the newly heard evidence caused it to think about the case “a little bit differently” from the original sentencing judge and to think the sentence was warranted for non-vindictive reasons. "In terms of procedure, that is all that Partain requires[.]”278 Or. App. 91, State v. Sierra (2016)
Modification of a Felony Sentence on Remand
ORS 138.222(5)(b) authorizes a resentencing court to modify a defendant’s sentence on certain felony convictions even though the defendant had already completed the previously imposed sentences for those charges. Here, the defendant was originally convicted of nine offenses, including five counts of UUW and two counts of kidnapping, and sentenced to 250 months in prison. The Oregon Supreme Court later reversed the kidnapping convictions and remanded the case for resentencing on the seven remaining convictions. On remand, the trial court sentenced the defendant to 276 months in prison, in part, by imposing longer sentences on three of the UUW convictions and by ordering that those sentences run consecutively, even though the defendant had already completed the previously imposed sentences for UUW. The defendant appealed this additional 26-month sentence on the grounds that the resentencing court lacked the authority to modify his sentences on the UUW convictions. The Court of Appeals affirms the additional 26 months imposed during resentencing under ORS 138.222(5)(b). ORS 138.222(5)(b) gives the trial court unqualified authority to resentence a defendant on all convictions, even those convictions where the defendant’s sentence has already been executed, where the appellate court “in a case involving multiple counts of which at least one is a felony, reverses the judgment of conviction on any count and affirms other counts.” The defendant’s case met all of the requirements of ORS 138.222(5)(b). Thus, the resentencing court was not prohibited from modifying the sentences on the UUW convictions. State v. Sierra, 278 Or. App. 91 (2016)
PCR – Procedural Default – “Escape Clause”
ORS 138.550(3) bars successive petitions for post-conviction relief unless petitioner’s claims fall under the “escape clause,” which requires that the court find that the grounds for relief asserted in the new petition could not reasonably have been raised in the original or amended petition. Here, the Court of Appeals upholds the post-conviction court’s ruling barring the defendant’s third petition for post-conviction relief because the defendant’s claim for relief could reasonably have been brought in an earlier petition. The defendant’s claim, mainly that the state violated Brady by withholding exculpatory evidence, could reasonably have been raised earlier because the defendant possessed, or had reasonable access to, information needed to raise the Brady claim during his first post-conviction proceeding. Evidence that the victim was a prostitute with a somewhat violent criminal history (evidence that was available to the police but had not been disclosed by the prosecution during discovery) was available and discovered by the defendant prior to his first petition for post-conviction relief. The defendant, therefore, possessed information that could have supported a post-conviction claim that the state committed a Brady violation by withholding potentially exculpatory information in his first petition for relief. Because he failed to raise a claim in his initial petition, he was barred for raising it in a successive petition under ORS 138.550(3).
Additionally, the Oregon Court of Appeals rejects the defendant’s contention that his procedural default should be excused based on inadequate assistance of his former post-conviction counsel because the defendant never raised the issue or presented any argument regarding the inadequacy of former counsel in the present petition for post-conviction relief. Cunningham v. Premo, 278 Or. App. 106 (2016)
Search and Seizure – Mere Conversation – Asking a Passenger to Step out of a Car
A defendant, the passenger in a car that was stopped for a traffic infraction, was not “seized” for the purposes of Article I, section 9, when a police officer asked her to step out of the stopped car, asked her to walk back to his patrol car, and questioned her about her criminal history. Nothing about the content or manner of the officer’s questioning could be construed as threatening or coercive, as the officer did not draw his weapon, raise his voice, or otherwise threaten the defendant in any way. Rather, the trial court found, and nothing in the record contradicts the trial court's finding, that the officer was polite and easy going and that the defendant spoke to the officer of her own accord. Because the officer’s actions constituted “mere conversation,” the defendant was not unlawfully seized during the encounter and the evidence discovered during the encounter did not require suppression. State v. Graves, 278 Or. App. 126 (2016)
Attorney’s Fees – Plain Error in Imposing When the Record is Silent on the Defendant’s Ability to Pay
The trial court plainly erred in imposing $1,352 in court appointed attorney fees when the record was silent as to the defendant’s ability to pay them. State v. Graves, 278 Or. App. 126 (2016)
Restitution – Hospital Bill Insufficient to Prove Reasonableness of Medical Bills
The trial court erred in requiring the defendant pay $27,677.50 in restitution to the victim where the victim’s restitution request was based on a single hospital bill. Under ORS 31.710(2)(a), any charges for hospital or medical services must be proven to be “reasonable” before requiring that the defendant be required to pay restitution for those charges. Proof of reasonableness requires more than evidence of the medical charges themselves. Here, the victim merely presented the court with a bill for $27k based on a surgery that followed from the defendant’s assault. Although it was undisputed that the victim was injured by the defendant, incurred the medical bill, and had necessary surgery, Oregon’s restitution statute still required proof beyond the victim’s medical bill that the charges for the hospital services were reasonable. State v. McClelland, 278 Or. App. 138 (2016)
Per Curiam Reversals of $60 “Mandatory State Assessment”
In per curiam opinions, the Court of Appeals reverses the trial court’s imposition of a $60 “mandatory state assessment” on each of the defendant’s convictions because the defendant’s offense occurred after the repeal of the statute that authorized such assessments. , State v. Caro, 278 Or. App. 162 (2016) and , State v. Easton, 278 Or. App. 167 (2016)
Imposition of $60 “Mandatory State Assessment” – Lack of Statutory Authority
The trial court exceeded its statutory authority when it imposed a $60 “Mandatory State Assessment,” because ORS 153.633(1) provides that the first $60 of any fine goes to the state, but does not provide for the imposition of a separate $60 fee. State v. Machado, 278 Or. App. 164 (2016)
