Oregon Appellate Ct - Nov 30, 2016
by: Sara Werboff • December 5, 2016 • no comments
Merger - Court Rejects State's Argument that Multiple Acts of Sex Abuse are Not Same Conduct or Criminal Episode - State Failed to Prove Sufficient Pause Between Defendant's Criminal Acts
The court concludes that defendant's guilty verdicts for two counts of first-degree sexual abuse and third-degree sexual abuse should merge into a single conviction for first-degree sexual abuse because the counts were not separated by a sufficient pause in defendant's criminal conduct to afford defendant an opportunity to renounce his criminal intent. The victim in this case was defendant's girlfriend. Following an argument, defendant followed the victim into her bathroom and without her consent, sequentially, touched her breasts and her vagina, and caused her to touch his penis. Defendant then raped the victim. The jury convicted defendant of two counts of first-degree sexual abuse and a lesser-included count of third-degree sexual abuse. Defendant argued for merger, but the trial court denied merger.
On appeal, the state raised as a threshold issue whether the antimerger statute, ORS 161.067(3) - involving multiple crimes arising from the same conduct or criminal episode, applies in this case because defendant's separate acts of sex abuse did not constitute the "same conduct or criminal episode." In essence, the state argued that there are separate categories of crimes. For example, assault is a "result-oriented crime." Whereas, sexual abuse is a "conduct crime" that is "defined primarily or solely as an act" or a "discrete instances of conduct." In a case like this one, where a conduct crime is at issue, the antimerger statute applies only when defendant's acts constituted the "same conduct" and the court does not evaluate whether the defendant's criminal acts were part of the same "criminal episode." The court rejects the state's argument after conducting a review of the statute's text, context, and legislative history.
Having concluded that defendant's criminal acts were part of the same conduct or criminal episode, the court further concludes that defendant's acts were not separated by a sufficient pause. For the novel issue of sequential sexual contacts with different body parts, the court looks to assault cases for guidance. There was no evidence that would support a nonspeculative inference that "something of significance" occurred between defendant's acts of touching, instead there was only evidence that defendant's acts occurred in a confined space over a brief period of time.
State v. Nelson, 282 Or App 427 (2016) (Ortega, P.J.)
Defendant Failed to Preserve Due Process Challenge to Admission of Hearsay Evidence in Probation Revocation Hearing
The court rejects defendant's challenge to the admission of hearsay evidence from a probation officer because it is unpreserved. Defendant's probation officer, Brasesco, authored two reports describing defendant's violations. At his hearing, however, another officer, Barnett, who had no first-hand knowledge of defendant's violations, testified to the contents of Brasesco's reports. The reports also were in evidence. Defendant objected to Barnett's testimony about his conversations with Brasesco, but did not object on due process ground to the admission of evidence of Brasesco's reports. Defendant argued on appeal that he had the right to confront Brasesco. But the court concludes that defendant failed to preserve the claim, and therefore the state had no opportunity below to explain why the trial court could rely on the evidence from the reports, and the trial court had no opportunity to rule on that issue.
State v. Lockridge, 282 Or App 414 (2016) (Hadlock, C.J.)
Juvenile Dependency - DHS Failed to Prove A Current Risk of Harm to Child
The court concludes that DHS failed to establish that, at the time of the jurisdictional hearing, a newborn child, K, was under a threat of harm for neglect. DHS became involved at K's birth based on an ongoing case with the parents' older child. Parents told DHS that they had executed a power of attorney giving parental rights to K to mother's father (grandfather). Mother resided with grandfather. In light of that, DHS did not believe that grandfather would be able to keep K safe. Additionally, DHS did not certify grandfather as a placement resource. DHS later denied grandfather's application for placement based, in large part, on the fact that mother lived there. Parents conceded that they alone would not be able to independently and safely parent K, but argued that DHS failed to establish that K was at a risk of harm if grandfather was entrusted with his care. The court agrees with parents. First, DHS failed to introduce evidence of parents' circumstances at the time of the hearing, and outdated evidence of their mental health conditions were not sufficient. Second, DHS failed to establish how parents' deficits would affect K when parents were not going to parent independently. DHS's concerns about grandfather, stemming primarily from the mere fact that mother also resided at his home, were not supported by any evidence and were speculative. Because there was no evidence of a current risk of harm to K, the juvenile court erred in taking jurisdiction.
DHS v. K.C., 282 Or App 448 (2016) (Ortega, P.J.)
Juvenile Delinquency - Trial Counsel Did Not Render Inadequate Assistance of Counsel
The court declines to set aside youth;s delinquency judgment, concluding that, despite youth's claims, youth's counsel did not render inadequate assistance of counsel for failing to conduct an adequate investigation, conduct a polygraph examination of youth, hire a handwriting expert, interview and call witnesses, and request the disclosure of exculpatory evidence from the district attorney. Police found drugs and IDs (containing a handwritten message) in youths belongings at his foster home. Youth contended that those items were placed there by his foster brother. With respect to the failure to polygraph youth, the court concludes that there was insufficient evidence of prejudice. Similarly, with respect to the handwriting analysis, the state did not contend that the handwriting on the ID belonged to youth, and therefore the handwriting analysis would not rebut the state's theory. Finally, the court concludes that it was not ineffective assistance of counsel for trial counsel to fail to interview two witnesses. Although, it was deficient for counsel to fail to interview one of the witnesses, there was no prejudice because that witness's testimony would have been inadmissible hearsay.
State v. J.J.-M., 282 Or App 459 (2016) (Sercombe, P.J.)
Trial Court Did Not Plainly Err in Failing to Strike Comment on Defendant's Credibility
The court rejects defendant's claim that the trial court erred by failing to sua sponte exclude a police officer's testimony that constituted a comment on defendant's credibility. In explaining his interrogation of defendant, during cross-examination by defendant, an officer stated "I didn't feel like [defendant] was being honest with me." Defendant acknowledged that he failed to preserve his claim, but contended that the trial court erred by "allowing" that testimony. The court concludes that the trial court did not plainly err in failing to interrupt the proceedings and, sua sponte, strike the testimony. The court could plausibly infer that defense counsel may have had a strategic reason for failing to object, precluding plain error review.
State v. Macias, 282 Or App 473 (2016) (Sercombe, P.J.)
Termination of Parental Rights - DHS Failed to Prove that Parents' Conduct or Condition was Seriously Detrimental to Children
On de novo review, the court reverses orders in both father and mother's cases terminating their parental rights because DHS failed to prove by clear and convincing evidence that the parents' conduct or conditions were seriously detrimental to the children. DHS sought to terminate father's parental rights because he was "angry and potentially abusive, including toward DHS, which hampered the state's efforts to help father attain the parenting skills and stability necessary for reunification." Specifically, DHS pointed to examples of excessive physical discipline, mental health problems, limited engagement with mental health and counseling services, limited engagement, in early stages, with parenting skills classes and visitation, the fact that parents' home was small and there was a lack of visibility between rooms, and lack of awareness of his children's needs. The court explains that DHS must show that a parent's conduct or condition must be seriously detrimental to the child and that a parent's past unfitness is not sufficient to show that there is a current condition. Here, DHS failed to prove the required nexus that father's aggression towards others and his mental health problems resulted in any type of harm or risk to the children. The court also did not find that DHS proved that father's parenting style, his home, his lack of a concrete plan moving forward, and his previous noncooperation with DHS would be seriously detrimental to the children.
With respect to mother, the court notes that the case against mother rested in large part on mother's relationship with father. DHS argued that mother suffers from a personality disorder that causes her to be overly dependent on father and had prior substance abuse issues. The court concludes that DHS failed to prove any of the alleged bases for mother's unfitness, for many of the same reasons announced in father's case.
DHS v. B.J.J., 282 Or App 488 (2016) (Duncan, P.J.)
DHS v. L.D.K., 282 Or App 510 (2016) (Duncan, P.J.)
Post-Conviction Relief - Petitioner Not Entitled to Relief for Counsel's Failure to Request Concurrence Instruction
The court reverses a post-conviction court's judgment that petitioner was entitled to relief for trial counsel's failure to request a jury concurrence instruction for a third-degree sexual abuse count. Petitioner was convicted of multiple sex offenses. The verdict on the count at issue, count 46, was based on defendant's "sexual contact with the penis of [JD]" and was similar to count 42, "deviate sexual intercourse" with JD. Both counts occurred at the same location. The post-conviction court concluded that because there were multiple factual scenarios of how the contact occurred, defendant was prejudiced as a matter of law by the failure to give a concurrence instruction because there was no way to know how the jury reached its verdict, relying on Hale v. Belleque, 255 Or App 653 (2013).
The court notes that the subsequent decisions Mellario v. Nooth, 279 Or App 419 (2016) and State v. Ashkins, 357 Or 642 (2015), altered the Hale prejudice analysis and required a "more nuanced" approach with a practical focus on the record in the case. Applying that approach here, the court concludes that petitioner was not prejudiced by the failure to give the concurrence instruction because the jury was otherwise alerted to the need for concurrence, and the evidence at trial, the state's closing argument, and the verdict form made it unlikely that the jury convicted petitioner without the required concurrence.
Boyles v. Myrick, 282 Or App 517 (2016) (Lagesen, J.)
Defendant Entitled to MJOA on Kidnapping When State Failed to Prove Intent to Interfere with Personal Liberty
The court reverses defendant's conviction for kidnapping and conspiracy to commit kidnapping because the state failed to prove that defendant substantially interfere with the victim's liberty. Defendant, and two of his friends, planned to confront the victim for stealing money and drugs. The goal of the confrontation was to scare the victim. The victim was confined in the garage for about 15 minutes where she was assaulted by someone other than defendant. She was then told to leave. The court concludes there was insufficient evidence that defendant intended to interfere with the victim's personal liberty because any confinement was incident to the assault, and there was no evidence that defendant sought to restrain the victim or prevent her from being found. The court concludes that there is also insufficient evidence of a conspiracy to kidnap the victim because there was no evidence to show that defendant agreed to commit the crime of kidnapping.
State v. Arreola, 282 Or App 555 (2016) (Tookey, J.)
Defendant Entitled to MJOA on Multiple Rape Counts When State Proved Only One Act of Sexual Intercourse
The court concludes that defendant was entitled to an MJOA on two of three first-degree rape charges because the state failed to prove that more than one rape occurred. Defendant, who was homeless, attacked the victim, who was also homeless, assaulting her and then dragging her to two other locations in the camp. At the last location, defendant raped the victim. The victim fought defendant, and while he was vaginally penetrating her, she managed to pull away a few times causing defendant's penis to slip out of her vagina. Each time, defendant was able to re-penetrate her. The state argued that each time defendant re-penetrated the victim, a new rape had occurred. The court rejects the state's argument.
"The difficulty with the state's position is that it is inconsistent with the ordinary meaning of 'sexual intercourse.' For the state to prevail, we would have to conclude that an ordinary person would understand two people to have engaged in a distinct act of vaginal sexual intercourse every single time that the penis, having initially penetrated the vagina, is removed (accidentally or intentionally) and then reinserted. We believe that an ordinary person, on the contrary, would understand a single act of sexual intercourse to include the possibility of penetration, removal, and reinsertion of the penis multiple times. Thus, the mere fact that the penis is removed and reinserted, without more, does not establish that a new act of 'sexual intercourse' has occurred."
Because the state proved only a single count of rape, defendant was entitled to a judgment of acquittal on the other two. Defendant also challenged his conviction for kidnapping, and the court concludes that defendant was not entitled to an MJOA on that charge. The state proved asportation because defendant moved the victim to qualitatively different locations. The court also rejects defendant's argument that the kidnapping was "incidental" to the rape. Defendant's movement of the victim occurred before the second crime, the rape, and it was reasonable to infer that the asportation was intended to isolate and control the victim.
State v. Eastman, 282 Or App 563 (2016) (Garrett, J.)
Restitution - Defendant Not Required to Preserve Restitution Challenge When There Was No Practical Opportunity to Object
The court reverses a restitution judgment holding that defendant was relieved of the preservation requirement because he had no opportunity to object and because there was no evidence to support the award. Defendant pleaded guilty and the terms of his plea expressly left open the matter of restitution. Later, the court signed a supplemental judgment granting restitution as requested by the district attorney's office. The court agrees with defendant that he had no practical opportunity to object to the restitution award. Nonetheless, the state asked the court to take judicial notice of a letter from the DA's office requesting restitution that was copied to defendant's attorney and the fact that the letter showed that defendant failed to object. The court concludes that it will not take judicial notice of the fact that defendant had an opportunity to object because it would require the court to infer additional facts, such as that the letter was sent or that defendant's attorney did not contact the DA's office to object. The court concludes that defendant did not have a practical opportunity to object. The court further concludes that there was no evidence to support the restitution award in this case. The victim received restitution for medical expenses. In order to award restitution for that category of expenses, the state must also show that the expenses are "reasonable." Here, there was no such evidence.
The court rejects defendant's challenge to attorney fees. Defendant's claim is unpreserved. Additionally, defendant stipulated to attorney fees in his plea petition, and, to the extent that defendant is challenging the amount of attorney fees, the record permits competing inferences about defendant's stipulation.
State v. Almarez-Martinez, 282 Or App 576 (2016) (Flynn, J.)
Appeal and Review - Probation Revocation Appealable but Not Reviewable
The court affirms the trial court's judgment revoking defendant's probation and sentencing him to 70 months of incarceration. The parties had originally stipulated to a 70 month sentence if defendant's probation was revoked. Relying on its recent decision in State v. Silsby, 282 Or App 104 (2016), the court rejects the state's argument that defendant cannot appeal his revocation sentence because it is not a colorable claim. However, also relying on Silsby, the court concludes that under ORS 138.222(2)(d) that defendant's claim is unreviewable because he stipulated to the revocation sentence in the judgment of conviction.
State v. Pobor, 282 Or App 600 (2016) (DeHoog, J.)
Search and Seizure - Police Could Not Rely on Emergency Aid Exception to Search Defendant's Bedroom
The court concludes that the police violated defendant's Article I, section 9, rights when they searched defendant's bedroom to find the medications she was taking, holding that it was not a necessary search under the emergency aid exception. Defendant's daughter reported to police that her mother had left a suicide note. Police responded to the house, and found defendant outside talking to family and friends. Defendant told police that she had tried to kill herself with a combination of prescription medications and the police were concerned that she would try again. Defendant walked into the house and locked herself in her bedroom. Police broke down the door and took defendant to the hospital. One officer stayed behind and searched defendant's room for her medications, because it was important for the doctors at the hospital to know what defendant took. That officer found illegal drugs.
The court rejects the state's argument that the search was "urgently necessary to assist in treating defendant for any potential drug overdose" and therefore lawful under the emergency aid exception. The emergency associated with the overdose had dissipated and there was nothing to suggest that defendant would be unable to assist in her own treatment.
State v. Potter, 282 Or App 605 (2016) (De Muniz, S.J.)
Search and Seizure - Police Had Reasonable Suspicion to Detain Defendant Visiting Known Drug House
In this state's appeal, the court reverses a trial court's order granting defendant's motion to suppress. Below, defendant argued that he had been detained without reasonable suspicion during a traffic stop that occurred when defendant was leaving a known drug house. Earlier that day, police had investigated the house and arrested the owner and searched several visitors, finding drugs. While they were waiting for a search warrant, the police saw defendant twice arrive at the house, stay briefly, and then leave. The court concluded that defendant's nervous demeanor and his past drug involvement did not amount to reasonable suspicion, however, the fact that he was seen visiting a house that was a confirmed drug house where people were arrested that day and the fact that he exhibited the same pattern of behavior of the earlier visitors did amount to reasonable suspicion.
State v. Westcott, 282 Or App 614 (2016) (Schuman, S.J.)
Per Curiam - Civil Commitment - Insufficient Evidence
The court accepts the state's concession that there was legally insufficient evidence to support appellant's civil commitment.
State v. W.C.A., 282 Or App 622 (2016) (Per Curiam)
Per Curiam - Juvenile Dependency - Dependency Proceeding Not a Foster Care Placement for Purposes of ICWA
The court rejects father's challenge to a juvenile dependency determination. The juvenile court asserted jurisdiction over father's child first in 2015 and again in 2016. Father challenges the 2016 judgment, arguing that DHS failed to present expert testimony required under the Indian Child Welfare Act (ICWA) that custody of the child by father was likely to result in serious emotional or physical damage. DHS argues on appeal that because the proceeding was not a foster care placement, father was required to preserve his claim and DHS was not required to present expert testimony. The court agrees with DHS that it was not a foster care placement proceeding since the child already had been found to be under the juvenile court's jurisdiction.
DHS v. J.C.S., 282 Or App 624 (2016) (Per Curiam)
Per Curiam - Hearsay Inadmissible as Prior Consistent Statement
The court holds that an officer's testimony conveying a hearsay statement from the complainant that he did not know the defendant was inadmissible as a prior consistent statement. Defendant was convicted of theft for taking the complainant's video poker cash credit. Defendant said that she was having an affair with the complainant and he gave the voucher to her. The complainant testified that he had seen defendant around, but otherwise didn't know her. A police officer testified that the complainant told him that he did not know the defendant. The court concludes that the officer's hearsay statement was not admissible as a prior consistent statement because the statement was not made before the complainant had a motive to fabricate and the error was not harmless.
State v. Hernandez, 282 Or App 627 (2016) (Per Curiam)
