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Oregon Appellate Ct - Nov 23, 2016

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by: Sara Werboff • November 25, 2016 • no comments

Right to Silence - State Impermissibly Commented on Defendant's Silence and Reversal Was Required

The court reverses defendant's DUII conviction, holding that the state impermissibly commented on defendant's right to remain silent during cross-examination and during closing argument. Defendant was arrested for DUII after driving her car on MAX tracks. The officer noted the odor of alcohol. Defendant invoked her right to remain silent but did comment that she did not feel safe to drive. Before trial, that statement was suppressed. On direct, defendant testified that she had drank three non-alcoholic beers, which would account for the odor. On cross, the state impeached defendant with her statement that she did not feel safe to drive. During closing, the state repeatedly commented that if defendant had truly drank the non-alcoholic beer, she could have cleared up the matter by telling the officer. The state argued that it was permitted to impeach defendant's non-alcoholic beer story, however, the court rejects that argument because the state was not using prior statements by defendant, but rather, using defendant's silence to impeach her. The error was also harmful because it permitted the jury to draw negative inferences from defendant's silence.

State v. House, 282 Or App 371 (2016) (Lagesen, J.)

Merger - No Merger was Appropriate When There Was a Sufficient Pause Between Crimes

The court upholds the trial court's order that defendant's two sodomy convictions did not merge. Defendant forced his wife to perform oral sex on him, then choked her causing her to briefly pass out, then unsuccessfully attempted to rape her, and then forced her to perform oral sex again. Defendant was charged with and convicted of two counts of sodomy for forcing his wife to perform oral sex. Defendant argued that the guilty verdicts for the sodomy counts should merge because they were part of an uninterrupted course of criminal conduct and there was a lack of a sufficient pause for defendant to renounce his criminal intent. The court disagrees with defendant. The court concludes that there was a sufficient pause between the sodomy crimes, even if the pause was other criminal conduct of a different nature.

The court also accepts the state's concession that the trial court plainly erred in imposing court-appointed attorney fees.

State v. West-Howell, 282 Or App 393 (2016) (Garrett, J.)

Burglary - Sufficient Evidence that Defendant Trespassed - Failure to Strike Allegation of "Occupied Dwelling" Was Not Plain Error

The court concludes that there was sufficient evidence that defendant committed a trespass, and therefore committed a burglary. Defendant was one of two men hired to repair the victim's gas fireplace. In order to fix the fireplace, the workers were given access to the first floor, crawl space, and garage. After the owner became suspicious that one of the workers had taken some money, he set up a camera which captured defendant going to the second floor of the house, where he took some items. The court concludes that there was sufficient evidence of trespass when defendant went upstairs. Even though the victim had not expressly stated that the workers were not permitted to go upstairs, he allowed them in the home for the limited purpose of repairing the fireplace and therefore allowed them access only to those parts of the home that were necessary for the repair.

The court also rejects defendant's request to review for plain error the trial court failure to strike, sua sponte, the allegation that the burglary occurred in an "occupied dwelling" which, under the sentencing guidelines, rendered defendant's crime an 8 on the crime seriousness scale. Although the victim, the homeowner, was not present, defendant's co-worker was. The court concludes that, given the co-worker's presence, the error was not obvious or beyond dispute.

State v. Angelo, 282 Or App 403 (2016) (DeHoog, J.)