Oregon Appellate Ct - Nov. 12, 2015
by: Abassos, Cmaloney and Alisa Larson-Xu • November 12, 2015 • no comments
Re-Sentencing –Presumption of Vindictiveness Only Applies When the Resentencing Is Harsher Than the Original
The presumption of vindictiveness applies only in a case where the trial court resentences the defendant to a longer or otherwise more severe total sentence. Here, defendant was resentenced to a prison term that was about half the original sentence (from 170 months to 87 months). However, on one count, the defendant received a prison term of 12 months where originally he was only sentenced to probation. As the presumption of vindictiveness does not apply, and the defendant does not argue actual vindictiveness, the sentence on that count was not vindictive. State v. Febuary 74 Or App 820 (2015).
Robbery-II – Other Person Actually Present and Aiding the Theft Does Not Need to Be Aware of the Theft
Second-degree robbery does not require that the “other person actually present” know that the defendant is committing theft. The person does need to be aiding in the commission of the theft, but not necessarily in a way that would create criminal or accomplice liability. Here, defendant’s boyfriend was in the store when defendant shoplifted, he walked with defendant to the car, he was beside her when the security officer identified himself and inquired about the unpaid items, and then he drove her away from the store. A reasonable factfinder could infer that defendant’s boyfriend was within proximity to defendant and the security officers to be an added threat and assisted defendant in her escape. State v. Morgan 274 Or App 792 (2015).
Vouching - State Cannot Ask Defendant Whether State’s Witnesses Were Lying
A prosecutor may not ask a defendant on cross-examination whether other witnesses have lied. Here, defendant testified differently than the state’s witnesses as to the events that led to his arrest. The state, on cross, repeatedly asked the defendant whether the state’s witnesses were lying. Defendant's objections should have been sustained. However, because the state’s inquiries were not aimed to undermine or bolster the credibility of the other witnesses but rather purposed to undermine defendant’s credibility and inconsistencies, which would come out in closing argument, the error was harmless. State v. Abbott 74 Or App 778 (2015). See also, Ryan Scott's article on this case.
Search & Seizure – Unlawful Extension - Blow Torch and Association with Suspected Drug User Not RS of PCS
A lawful stop may endure only for the time it takes an officer to complete an investigation that is reasonably related to the basis for the stop. Here, defendant was seized as a vehicle passenger when the officers directed their investigation of car prowls toward him. After searching the vehicle and finding nothing, any reasonable suspicion related to the car thefts dissipated; however, the officers continued the stop by asking defendant probing questions and never informing defendant he was free to leave. Because the driver was a suspected drug user and a butane torch was found in the car, the officers requested and received defendant’s consent to search his person for drugs. However, at that moment, the facts did not rise to objective reasonable suspicion that defendant possessed drugs and thus it was unlawful for the officers to extend the stop. As the consent resulted from the officers’ illegal seizure, it was not voluntary. Reversed. State v. Sherman 74 Or App 764 (2015).
Theft by Receiving Requires Belief That the Property Is Stolen
In State v. Korelis, the Supreme Court held that notwithstanding the text of ORS 164.095, a finding of either actual knowledge or belief by a defendant that the property was stolen is required for a conviction of theft by receiving. Giving a jury instruction that includes the phrase “having a good reason to know” (which tracks the language of the statute) is an error because it suggests that a jury may decide guilt based on whether a reasonable person would have thought that the property was probably stolen. This legal proposition is no different where the trier of fact is the court. Here, the court erred when it explicitly found that knowledge was lacking but nevertheless found defendant guilty because the defendant “had good reason to know” that the firearm was stolen. Reversed and remanded. State v. Satterfield, 274 Or App 756 (2015).
Impeachment – Failure to Appear II Is Admissible for Impeachment Under OEC 609(1)
Under OEC 609(1), a conviction for failure to appear in the second degree is admissible for impeachment purposes because by its very nature it involves a false statement. Here, defendant sought to introduce evidence that a witness had been convicted of second-degree failure to appear. The court erred in excluding the evidence but the error was harmless because the witness’s credibility was not important to the outcome of the trial. State v. Jones, 274 Or App 723 (2015).
Sentencing – A Criminal History Score Can't Be Elevated by Convictions Arising From the Same Criminal Episode
When a defendant’s multiple convictions stem from the same criminal episode, the criminal history score remains the same for each of the convictions. Here, defendant pointed a handgun at two victims and fired two shots when they ran away. Defendant was convicted of two counts of unlawful use of a weapon. At sentencing, the court classified defendant’s first conviction as a 6B and the second conviction as a 6A. The sentence under the 6A grid block was imposed concurrent with the longer sentence under 6B. On appeal, the state conceded that because the two convictions arose from the same criminal conduct or transaction, the court was not permitted to recalculate the criminal history score. The Court of Appeals agrees but finds that the error was harmless because the erroneous sentence did not add any time to the total sentence. Furthermore, defendant didn’t persuasively identify any adverse consequences of the trial court’s error. State v. Jones, 274 Or App 723 (2015).
Expert Testimony – An Expert May Testify About Personality Traits Independent of a Diagnosis of Personality Disorder
When personality traits are relevant to a defense, expert testimony concerning defendant’s personality traits is admissible independent of a diagnosis of personality disorder. Here, defendant was charged with multiple counts of encouraging child sexual abuse. Her defense was that the child pornography images found on her computer actually belonged to her husband and that, to aid him, she had falsely confessed to downloading the pictures. The defendant offered the expert opinion of a psychologist regarding her personality traits of immaturity, passivity, and submissiveness. These traits were supported by evidence from the psychologist’s testing and independent of a provisional diagnosis that defendant had a personality disorder. The trial court excluded the testimony as lacking foundation because the psychologist made only a “provisional” rather than “firm” diagnosis that defendant had a personality disorder not otherwise specified, listing traits of dependent, avoidant, and borderline personality disorders. The trial court erred in excluding the psychologist’s testimony concerning defendant’s personality traits. The evidence was relevant to and supported defendant’s defense that she confessed falsely; and as the psychologist explained, a firm diagnosis of personality disorder is not a prerequisite for confidently identifying defendant’s personality traits. Reversed and remanded for a new trial. State v. Navaie, 274 Or App 739 (2015).
Admission of a Party Opponent – The Declarant of a Statement Can Be Inferred From Circumstantial Evidence
Circumstantial evidence may be used to determine, under OEC 801(4)(b)(A), that a party-opponent made an admission. Here, child pornography was found on a computer that defendant used, in a folder labeled “Piper’s Stuff” (defendant’s nickname was Piper.) The state argued that the “Piper’s Stuff” label was an admission by Piper that the "stuff" in the folder was hers. Defendant argued that (1) the trial court erred in determining as a preliminary fact that she made the label; and (2) the state needed to make a foundational showing that the testifying witness observed the declarant make the statement. The appellate court finds that in making a preliminary fact determination, a trial court is not bound by the rules of evidence except those with respect to privileges. The record supports a reasonable inference that defendant created the “Piper’s Stuff” folder and was the declarant. Accordingly, the trial court did not err in admitting evidence of the folder label over defendant’s hearsay objection as an admission of a party opponent. State v. Navaie, 274 Or App 739 (2015).
ECSA - Sexually Explicit Conduct – A Photo Can Be a "Lewd Exhibition" Even Though the Subject is Wearing a Shirt and Shorts
Under ORS 163.665(3)(f) (encouraging child sexual abuse II), “sexually explicit conduct” includes a “lewd exhibition of sexual or other intimate parts”. “Lewd exhibition” has been construed to mean an “exhibition with the intent of stimulating the lust or desires of the person who views it." Whether a photograph depicts a “lewd exhibition” depends upon the circumstances of the photograph's creation. When the only evidence of the photographer's intent is the photograph itself, the question is whether the photograph permits a reasonable inference that the photographer intended the photograph to arouse sexual desires in viewers. Here, the Court of Appeals finds that a reasonable inference could be made that the photographer intended to arouse the sexual desires of the viewer. The photograph depicted a young girl wearing a tank top and shorts. Her legs were spread and the photograph was taken below, so the viewer could see up her shorts. While her genitals were partially covered, it appeared that she was not wearing any underwear. Furthermore, the photograph was closely cropped and the girl was the sole subject. The Court of Appeals held that in light of these facts the trial court did not err in denying defendants motion for judgment of acquittal. State v. Navaie, 274 Or App 739 (2015).
Contempt of Court – A Person Cannot Be Convicted of Contempt Because It Is Not a Crime
Contempt of court is not a crime, and, therefore, doesn’t result in a judgment of conviction. Here, the trial court entered a judgment of “conviction” for contempt. The state conceded that the trial court erred, and the Court of Appeals accepts that concession. On remand, the trial court is ordered to correct this error by entering a judgment to reflect that the court found defendant in contempt of court. State v. Navaie, 274 Or App 739 (2015).
