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Oregon Appellate Ct - Nov 16, 2016

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by: Sara Werboff • November 18, 2016 • no comments

Expert Witness Testimony Properly Excluded - Trial Court Did Not Err in Calculating Criminal History Score

Defendant was convicted of multiple counts of first and second-degree encouraging child sexual abuse after police discovered child pornography on his computer. Defendant's defense at trial was that he collected child pornography as a way of coping with his own abuse as a child. In support of that defense, defendant tried to introduce testimony from Dr. Frank Colistro that people may possess child pornography for other than sexual purposes. The trial court agreed that it was relevant, but ultimately excluded the evidence because defendant did not meet the standard for admissibility of scientific evidence. The court agrees. The court first rejects defendant's argument that the evidence was not scientific, and therefore subject to more stringent standards, because it drew its convincing force from scientific principles and had significant increased potential to influence the jury. The court then applies the Brown/O'Key factors and concludes that only Colistro's qualifications and his use of differential diagnosis weighed in favor of admissibility, but much stronger factors weighed against admissibility. Specifically, Colistro's technique of applying differential diagnosis to determine someone's motives for possessing child pornography was a novel, qualitative not quantitative analysis. It was not supported by scientific literature or studies and relied entirely of self-reports from the people he treated.

The court also concludes that the trial court did not err in increasing defendant's criminal history score within a single sentencing proceeding. Defendant argued that the convictions arose out of the same criminal episode because defendant was discovered possessing the pornography at the same time. However, the evidence showed that defendant had downloaded the images at separate times and each offense could be described without recounting the details of his acts of downloading the other images.

State v. Dulfu, 282 Or App 209 (2016) (Hadlock, C.J.)


Parole Board - Board Had Authority to Deny Petitioner Rerelease on Parole

The court affirms a parole board decision setting a new parole release date for petitioner in 2022. Petitioner was convicted of assault and robbery in 1989, and given a combined indeterminate 40 year sentence. Petitioner was first paroled in 2005, but committed new crimes and was reincarcerated. He was released on parole again. In 2012, while he was on parole, petitioner was involved in a car crash, and the parole board held a hearing and determined that petitioner was intoxicated at the time of the crash and there was a firearm in petitioner’s vehicle. The board revoked his parole. The board then held a future disposition hearing to determine what consequence should follow the revocation, and the board set a new parole release date of 2022 and ordered that petitioner would remain on parole until his maximum sentence date of 2032. Petitioner argues that the board was not permitted to defer his re-release date by 10 years.

Petitioner acknowledges that under ORS 144.343(2)(b)(1987), the board was authorized to revoke his parole and require that he serve the remaining balance of his sentence. However, petitioner relies on former OAR 255-75-079 (Apr 19, 1989) to argued that the board was required to impose a more limited incarceration sanction.

The court rejects petitioner’s argument. The court holds that the board was not required to apply limited incarceration sanctions because it was not continuing petitioner’s parole, it was revoking it, denying rerelease on parole, and requiring that petitioner serve the remainder of his sentence.

Ha v. Board of Parole, 282 Or App 227 (2016) (Hadlock, C.J.)


Evidence - Trial Court Did Not Err in Admitting Officer's Testimony About Victim's Identification and Text Messages

Defendant challenged the revocation of his probation for violating a no-contact order with P. P called the police after seeing defendant at a MAX station and receiving text messages from him. P did not appear at the probation hearing. Instead an officer testified that P identified herself and showed him the text messages on her phone. Defendant objected to that evidence as hearsay.

The court concludes that even if the officer's testimony about P's identity was hearsay, any admission was harmless. Defendant testified that he was at the MAX station and saw P and the officer testified that defendant admitted to seeing P at the MAX station. Both of those statements were admissible. With respect to P's text messages, P simply showed the text messages to the officer and did not make any verbal or nonverbal assertions that defendant sent the text messages, and the officer's testimony connecting the messages to defendant was based on his own observations.

State v. Jenkins, 282 Or App 276 (2016) (Devore, J.)


Sentencing - Appeal and Review - Defendant Entitled to a Resentencing Hearing on Remand

The court holds that the trial court erred when it concluded that it could not hold a resentencing hearing and allow defendant to present new arguments on remand. This is defendant’s second appeal. Defendant was convicted of aggravated murder, among other crimes, and a jury imposed a true life sentence. Defendant successfully file a motion in arrest of judgment of the aggravated murder conviction. On the first appeal, the court reversed and remanded, ordering the trial court to reinstate the aggravated murder conviction. On remand, defendant sought a plenary resentencing hearing under ORS 138.222(5) so that he could present arguments against the true life sentence. The trial court concluded that it did not have authority to hold a resentencing hearing, and all it could do was reinstate the aggravated murder conviction and the true life sentence.

The court concludes that the trial court erred. When the trial court granted defendant’s motion in arrest of judgment, it made an error affecting the sentence being imposed under ORS 138.222(4)(a). When the court reversed based on that error, it remanded the entire case for resentencing under ORS 138.222(5)(a). Defendant was therefore entitled to present evidence and argument pertaining to the sentence being imposed.

State v. Tate, 282 Or App 320 (2016) (Tookey, J.)


Evidence - Prior Uncharged Misconduct Evidence Admissible to Prove Motive but Court Erred by Not Conducting 403 Balancing

In this assault case, the court affirms the trial court's admission of an earlier uncharged assault. Defendant was convicted of assaulting his girlfriend on September 21 and October 18. Defendant also assaulted his girlfriend on September 13 because he had a "jealousy issue." The girlfriend left their shared residence, and returned on September 21. When she returned defendant again assaulted his girlfriend while questioning her fidelity. The state filed a motion in limine to admit the September 13 incident to show defendant's motive to assault his girlfriend on the 21st and the trial court admitted the evidence. Defendant request OEC 403 balancing but the trial court did not conduct balancing.

The court concludes that the evidence was admissible to show defendant's motive to assault his girlfriend. There was sufficient evidence to show that the same "jealousy issue" that prompted defendant to assault his girlfriend on September 13 led to the subsequent assaults. The court then concludes that the trial court erred when it failed to conduct balancing under OEC 403, as defendant requested.

State v. Edwards, 282 Or App 328 (2016) (Tookey, J.)


Search & Seizure - Officer Unlawfully Extended Stop Without Reasonable Suspicion

The court concludes that police unlawfully extended a traffic stop when it stopped processing defendant's traffic violation and began an investigation into unlawful use of a vehicle (UUV) without reasonable suspicion. The officer validly stopped defendant. Defendant told the officer that it was not his car, but provided his driver's license and insurance. The insurance card specifically identified the car defendant was driving. The officer became suspicious that defendant did not have permission to drive the car. The officer ran the car's plates and it was not reported stolen, however, he was still suspicious, so he ran defendant's name. The officer could not find any connection between defendant and the registered owner of the car. The officer began questioning defendant again, and defendant said he was borrowing the car from his friend, Doug, which was not the registered owner's name. The officer started runing a "wanted person" inquiry on defendant and his passenger. While that was ongoing, the officer ordered defendant out of the car and defendant ultimately consented to the search.

The court agrees with defendant that the officer unlawfully extended the stop when he questioned defendant after learning the identity of the registered owner. The officer had all the information he needed to process the traffic violation. Additionally, the officer lacked reasonable suspicion of the UUV because defendant's nervous demeanor, defendant's vague statements about his possession of the car, and the fact that the officer could not find a connection between defendant and the registered owner were not suspicious. The court declines to consider the state's alternative basis for affirmance that the defendant's consent was attenuated from the illegal extension of the stop.

State v. Dawson, 282 Or App 335 (2016) (Flynn, J.)


Per Curiam - Disorderly Conduct - Defendant Entitled to Acquittal for Failure to Prove he Created a Public Risk

The court holds that the state failed to prevent sufficient evidence that defendant created a risk of public inconvenience, annoyance, or alarm. Defendant was charged with second-degree disorderly conduct after he got into an altercation with a taxi driver. There was no evidence that anyone other than the taxi driver or the police officers responding to the incident would have been aware of defendant's conduct. The state concedes that it failed to prove that defendant's actions affected the public.

State v. Schell, 282 Or App 364 (2016) (per curiam)


Per Curiam - Civil Commitment - Trial Court Failed to Advise Appellant of his Rights

The court reverses an order civilly committing appellant because the trial court failed to advise appellant of his rights listed in ORS 426.100(1).

State v. P.H.D., 282 Or App 367 (2016) (per curiam)