Oregon Appellate Ct - Nov 2, 2016
by: Sara Werboff • November 4, 2016 • no comments
First-Degree Criminal Mistreatment - "Take" Under Statute Does Not Require Intent to Permanently Deprive
The court holds that for the purposes of the criminal mistreatment statute, "take" applies to the exercise of dominion or control over property for one's own use or for the use of a third person, regardless of whether the dominion or control is intended to be temporary or permanent. Defendant was charged with first-degree criminal mistreatment for taking money from his elderly mother. Defendant contended that the money was a loan, and in fact, had repaid some of it. Before trial, the state moved in limine for a determination that taking can be a temporary or a permanent deprivation. The trial court agreed with the state and defendant entered a conditional guilty plea and appealed the trial court's ruling.
The court analyzes the text, context, and legislative history of the criminal mistreatment statute and concludes that the legislature intended to impose a different requirement than for theft, which does require a permanent deprivation. Instead, criminal mistreatment requires that a person intentionally or knowingly take money or property for a use other than one in the lawful course of the person's responsibilities. To require that taking to be a permanent deprivation would improperly insert terms that were omitted.
State v. Browning, 282 Or App 1 (2016) (Duncan, P.J.)
Sentencing - Court Lacked Authority to Impose No-Contact Order for Incarceration and PPS Sentence
The court concludes that the trial court plainly erred in imposing a no-contact provision of either defendant's incarceration or post-prison supervision sentence. Trial courts lack authority to impose conditions of incarceration or post-prison supervision. The state concedes that the trial court plainly erred in doing so. The court exercises its discretion to correct the error because the ends of justice require a lawful sentence.
State v. Hall, 282 Or App 9 (2016) (Duncan, P.J.)
Juvenile Dependency - Insufficient Evidence of Risk of Harm to Children's Welfare
The court reverses a juvenile dependency judgment against mother and father because the evidence is insufficient to support the juvenile court's determination that there is a current risk of harm to the children. Mother and father are married and have two children. Mother reported to her therapist that father had threatened suicide and homicide. The therapist determined that father was subjecting mother to emotional abuse, which she considered to be a form of domestic abuse, and reported father to DHS. DHS initially filed a dependency petition against father, but then added mother when it determined that mother's wish to reunite the family also created a risk of harm to the children. At the dependency hearing, the DHS caseworker testified generally that domestic abuse is harmful to children.
The court concludes that the evidence was not sufficient for the juvenile court to conclude that the threat of harm to the children was serious and reasonably likely to be realized. A child must be exposed to "danger, that is, conditions or circumstances that involve being threatened with serious loss or injury" and the threat of harm cannot be speculative. Here, while there was evidence of domestic abuse by father of mother, and that conflict has affected the children, there was no evidence of a present risk of serious harm that is reasonably likely to occur.
DHS v. K.C.F., 282 Or App 12 (2016) (Duncan, P.J.)
Appeal and Review - Order Determining that Defendant's Statements are Confessions is Not Appealable
The state sought to appeal an order denying the state's motion in limine to allow defendant's statements to be admitted as admissions, and moved the court for a determination of appealability. The court concludes that the order is not appealable and dismisses the appeal. Defendant is charged with sodomy and sexual abuse. Defendant made many inculpatory statements to his ex-girlfriend concerning the abuse. Before trial, the state moved in limine to have those statements admitted as admissions, which do not require corroboration, instead of confessions, which do require corroboration. The trial court concluded that defendant's statements were confessions.
Under ORS 138.060, the state can appeal only from certain pretrial orders, including when the trial court suppresses evidence. Here, however, the trial court did not suppress the statements, but rather determined that those statements were admissible only if the state produced corroborating evidence. Thus, the order is not appealable.
State v. Wenning, 282 Or App 21 (2016) (Egan, P.J.)
Evidence - Reversal Required Because Record Did Not Establish that Court Conducted 403 Balancing
The court reverses defendant's conviction, determining that the trial court erred in admitting a video of defendant being booked into jail without first balancing the probative value of the video against the danger of unfair prejudice, as required by State v. Mayfield, 302 Or 631 (1987). In this theft and ID theft case, the state had video evidence of a person using an ATM. The state sought to use defendant's jail booking video, for a different offense, to show that defendant wore clothes similar to those worn by the person in the ATM videos. After defendant raised a 403 challenge, the trial court viewed the video, and determined that "it's relevant" and admitted it. After reviewing the record, the court concludes that the record does not show that the trial court engaged in balancing, instead, the trial court determined that the evidence was relevant. Relevance is a threshold inquiry but does not resolve whether the prejudicial effect of the evidence outweighs its probative value. The court further concluded that the error was not harmless, even though the trial court offered (but did not ultimately give) a curative instruction. Defendant raised several reasons why the video might be unduly prejudicial, and, had the trial court engaged in the required balancing, it may have agreed with defendant and excluded the evidence.
Judge Devore dissents. Essentially, Devore reads the record differently to conclude that the trial court did balance and that the record is not so different in this case from other cases whether the court determined that the trial court implicitly balanced the probative value against the prejudicial effect.
State v. Anderson, 282 Or App 24 (2016) (Flynn, J.) (Devore, J., dissenting)
Contempt - Evidence Did Not Show that Defendant "Willfully" Violated Restraining Order
The court reverses a contempt judgment, concluding that the facts found by the trial court precluded a finding that defendant's violation of a FAPA restraining order was "done willfully" under ORS 33.015(2)(b). Defendant's husband got a restraining order against defendant. The husband and defendant thereafter tried to reconcile, and the husband told defendant that he went to court and dismissed the restraining order. Defendant and her husband went on a trip, where they were pulled over by police. Police discovered the restraining order, which had not been dismissed, and defendant was arrested and charged with contempt. During defendant's contempt hearing, the trial court expressly credited defendant's testimony that she believed in good faith that the order had been dismissed. Nonetheless, the trial court found that defendant willfully violated the order.
The court interpreted the term "done willfully" in the statute and determined that the legislative history was dispositive. In 1991, the legislature explained that willfully meant "intentionally and with knowledge that it was forbidden conduct." That definition was expressly memorialized as part of the legislative history as guidance. In this case, because defendant believed in good faith that she was no longer bound by the restraining order, she did not act willfully when she violated it and the trial court erred in entering a contempt judgment.
State v. Nicholson, 282 Or App 51 (2016) (Haselton, S.J.)
Per Curiam - Reversing "Mandatory State Amt"
The court accepts the state's concession that the trial court lacked authority to impose a "mandatory state amt" as a separate assessment.
State v. Knight, 282 Or App 64 (2016) (per curiam)
Per Curiam - Reversing Compensatory Fine
The court accepts the state's concession that the record was insufficient to support the award of a $2,000 compensatory fine.
State v. Higgins, 282 Or App 66 (2016) (per curiam)
Per Curiam - Reversing Attorney Fees
The court reverses as plain error a $200 attorney fee award because the record was silent as to defendant's ability to pay fees and because the erroneous imposition of fees was a substantial hardship to defendant.
State v. Caldwell, 282 Or App 68 (2016) (per curiam)
Per Curiam - Civil Commitment - Insufficient Proof for Civil Commitment
The court accepts the state's concession that the record was legally insufficient to support the appellant's involuntary commitment.
State v. C.A.S., 282 Or App 70 (2016) (per curiam)
