Oregon Appellate Ct - Nov 9, 2016
by: Sara Werboff • November 11, 2016 • no comments
Burglary - Identity Theft - Defendant Entitled to MJOA for Failure to Prove Burglary and State Failed to Prove Venue for ID Theft
The court concludes that, for the reasons stated in its recent decision in State v. Werner, 281 Or App 154 (2016), defendant was entitled to a judgment of acquittal on burglary charges. Defendant was a member of Bally's Fitness. While using the gym, defendant took the personal identification and credit cards of a number of other members. The state argued that defendant's presence in the gym, while initially authorized, converted to a trespass when he used his access for an illegal purpose. In Werner, as here, if the commission of the crime is what causes a person to become a trespasser then the person is not trespassing with the intent to commit a crime.
Defendant also challenged the jury instructions in his case, which listed uncharged methods of committing identity theft. The court concludes this was invited error, because defense counsel expressly requested those instructions.
With respect to venue for some of the ID theft counts, defendant took some property Bally's located in Multnomah and Clackamas Counties, and was tried in Multnomah County. Defendant challenged venue for the counts involving the identity thefts that occurred in Clackamas County. The IDs were later found at defendant's residence in Multnomah County. The state argued that venue was proper under ORS 131.315(7) which permits venue in multiple counties if a defendant who commits "theft" exerts control over the stolen property in that county. However, the court concludes that the legislature did not intend for "identity theft" to be incorporated into that statute. ID theft was enacted later than the venue statute so the venue statute could not have intended to encompass that crime. Further, the legislature later amended another provision of the venue statute to expressly include ID theft, but did not also amend ORS 131.315(7), thus "theft" did not automatically encompass "identity theft." Because ORS 131.315(7) did not provide a basis for venue in Multnomah County, the trial court erred.
State v. Berndt, 281 Or App 73 (2016) (Armstrong, P.J)
Jury Instructions - Instruction on Forcible Compulsion was Plain Error but Did Not Warrant Reversal
Defendant was convicted of first-degree sodomy and first-degree sexual abuse. Both charges relied on defendant's "forcible compulsion" of the victim. The trial court gave jury instructions that failed to instruct that the jury must find that defendant knowingly subjected the victim to forcible compulsion (sodomy) and intentionally subjected the victim to forcible compulsion (sex abuse), though the jury was otherwise instructed as to the mental states for the other elements. Defendant and the victim used to date, where, on one occasion, they engaged in anal sex. The victim did not like the experience and shortly thereafter, she broke up with defendant. Defendant continued to pursue the victim, and this culminated with defendant coercing the victim at gunpoint into his car (defendant later told the victim the gun was fake) and then taking her to multiple locations and anally penetrating her.
The court concludes that defendant failed to preserve his claim of error that the instructions were improper, however, that the error was plain. The court then declined to exercise its discretion to correct the error because any error was harmless. Although the verdict was nonunanimous, the court concludes that the focus of the harmless error analysis is on the verdict itself, and "accordingly, we must evaluate the potential effect of the error on the jurors who necessarily credited the victim's account as to forcible compulsion." The court notes that there was no evidence from which the jury could find that defendant did not knowingly subject the victim to forcible compulsion because there was no evidence that the victim and defendant engaged in consensual activity that involved any type of forceful conduct.
State v. Waldbillig, 281 Or App 84 (2016) (Ortega, P.J.)
Vindictive Sentencing - Sentence Vindictive When Trial Court Imposed Harsher Sentence for Exercising Right to Trial
The court concludes that the trial court erred in imposing a longer sentence following a successful appeal without giving reasons to establish that the sentence was not vindictive. Defendant was convicted of various sex offenses involving his stepdaughters. Defendant's second trial ended in a hung jury and his third trial ended in a mistrial. Following defendant's fourth trial he was convicted of the same offenses. The trial court imposed a sentence that was 79 months longer than the original sentence. The trial court explained that it did so because defendant lacked remorse and because he had made his daughters testify four times. The court concludes that the trial court did not demonstrate a non-vindictive reason for imposing the longer sentence. First, the state concedes that the trial court could not rely on the fact that defendant exercised his constitutional right to a jury trial - and thereby required his victims to testify - as a basis for a harsher sentence. "He did nothing other than exercise his rights to a fair trial and appeal. No defendant can be punished for doing that." With respect to defendant's lack of remorse, the court concludes that that basis too appears to be an explicit punishment for defendant's exercise of his right to appeal and right to trial. The court does not decide whether "lack of remorse" is an independent ground, because the trial court's findings were not sufficient to satisfy the court that the sentence was not a product of vindictiveness.
State v. Robledo, 281 Or App 96 (2016) (Egan, J.)
Appeal and Review - Court Had Jurisdiction Over Appeal But Claim Was Unreviewable
Defendant appealed a probation revocation sentence of 80 months, arguing that the trial court lacked the authority to impose that sentence and instead was required to impose a guidelines sentence. Defendant had entered a guilty plea in which she stipulated to an 80-month sentence if her probation was revoked. On appeal, the state argued that the court lacked jurisdiction. The court concludes that it has jurisdiction under ORS 138.222(7) because a defendant may appeal from a "judgment of conviction based on the sentence" and the court earlier had determined that a probation revocation judgment qualifies as such a judgment. The court concludes that it also has jurisdiction because defendant raised a "colorable claim" of error. The state argued that in order to be colorable, a defendant must establish from the outset that the claim is reviewable, but the court rejects that argument.
The court then concludes that defendant's claim is unreviewable under ORS 138.222(2) because it was a sentence that resulted from a stipulated sentencing agreement. Defendant argued that the sentence was not such a sentence because it was not authorized, but again the court's case law forecloses that argument. The legislature intended to preclude review of any sentence to which the defendant had agreed to ahead of time.
State v. Silsby, 281 Or App 104 (2016) (Lagesen, P.J.)
Post-Conviction Relief - Counsel Not Ineffective for Failing to Let Petitioner Plea to Misdemeanor
Petitioner seeks post-conviction relief from his conviction of second-degree assault for kicking his girlfriend while wearing cowboy boots. Petitioner initially was charged with misdemeanor fourth-degree assault. Petitioner had other pending assault charges, was offered a global settlement, and rejected that deal. After rejecting the deal, the state dismissed the information with the misdemeanor assault charge and indicted petition for second-degree assault. Petitioner alleges inadequate and ineffective assistance of counsel contending that his lawyer should have had him plea to the assault charge while it was still a misdemeanor. The post-conviction court denied relief, finding that counsel was not inadequate and that petitioner was not prejudiced because his strategy of pleading to the misdemeanor assault charge would be unlikely to succeed. The PCR court found that had petitioner attempted to plead guilty to the misdemeanor assault, the state would have dismissed the information and recharged him on the felony in any event. On appeal, the court concludes that petitioner was not prejudiced. Although petitioner is correct that generally, a defendant has the right to plead guilty to an offense, the court notes that the trial court has the authority to dismiss a charge on its own motion or on the state's motion. The trial court therefore was not compelled to accept the petitioner's plea to the misdemeanor, and could have dismissed the charge. Therefore the PCR court correctly concluded that petitioner was not prejudiced.
Eby v. Premo, 281 Or App 114 (2016) (Lagesen, P.J.)
Pro Se Defendant Did Not Validly Waive by Misconduct his Right to Representation
Defendant represented himself at trial, behaved very poorly, and ultimately was excluded from the courtroom before closing argument. The court concludes that the trial court erred in allowing the trial to continue in defendant's absence without first securing a waiver of representation or taking some other course of action to protect defendant's right to representation, as required by State v. Menefee, 268 Or App 154 (2014). Under Menefee, a pro se defendant can forfeit his right to self-representation and his right to be present at trial by misconduct, but he does not forfeit his right to any representation. Here, although the trial court warned defendant repeatedly that a consequence of his actions could be the continuation of the trial in his absence, the trial court did not secure a waiver of the right to representation from defendant before doing so. In order to waive that right, defendant needed to know that he had the right to continued representation in his absence. Because Menefee was decided after this case was tried, the trial court did not provide that warning. The court further concludes that the error here is structural, and even though defendant represented himself through most of the trial, his rights were still violated by his absence during closing arguments and for argument on sentencing enhancement factors.
Judge Garrett dissents, arguing that the trial court's admonishments were sufficient to apprise defendant of the rights he would waive by failing to behave. In Judge Garrett's view, Menefee addressed a different situation than the one presented here and is distinguishable.
State v. Lacey, 281 Or App 123 (2016) (Lagesen, J.) (Garrett, J., dissenting)
Vindictive Sentencing - Double Jeopardy - Vouching Issues - Remanding for Resentencing but Otherwise Affirming Convictions
Defendant was convicted of numerous sex offenses and raised several challenges. The court agrees with defendant's sentencing argument but rejects the other two. Defendant had previously successfully appealed his convictions for the sexual abuse of his three nieces. Defendant's second trial ended with a hung jury and a mistrial. Defendant's third trial also ended with a mistrial when a forensic evaluator improperly referred to a portion of her report containing recommendations for diagnosis or treatment. Before his fourth trial, the one at issue here, defendant argued that the retrial was barred by double jeopardy because official misconduct caused the preceding mistrial. The court concludes that the trial court did not err in denying defendant's motion to dismiss. The trial court concluded that the prosecutor's eliciting of the testimony was negligent and not indifference to the risk of a mistrial.
Defendant next makes several vouching challenges. The first statement was the forensic evaluator's statements concerning was abuse victims "may say" that were the same as the statements the victim here did say. The court concludes that testimony was admissible, because it did no more than provide jurors with information from which it could infer credibility. Next, defendant challenged descriptions of the children "presenting as competent" or "presenting as anxious" because those descriptions vouched for the children's credibility in giving statements. Again, the court rejects this argument, because it is also information from which the jury could infer credibility and not direct comments on credibility. The court also rejects another challenge to a statement from the children's mother about waiting to report the abuse because it took a while to sink in "that this was really happening." It was relevant to explain mother's response to the disclosures and not whether the disclosures were true.
Finally, defendant challenges his sentence as vindictive. Initially defendant was sentenced to 450 months. Following his retrial on fewer charges, defendant was sentenced to 866 months. The trial court failed to make any findings supporting the longer sentence, as required by Partain, and the court concludes that the sentencing error is reviewable because it could not conclude that the findings needed to satisfy Partain would be readily made. The court remands for resentencing.
State v. Criswell, 281 Or App 146 (2016) (Garrett, J.)
Vouching - Miranda - Detective's Statements to Defendant During Interrogation Were Not Vouching and No Miranda Violation for Statements Made to DHS
The court concludes that the trial court did not err when it admitted several statements by a detective during defendant's recorded interrogation that he did not believe defendant was telling the truth. The court further concludes that the trial court did not err in denying defendant's motion to suppress statements he made to a DHS caseworker. Defendant was convicted of first-degree rape from allegations made by his stepdaughter. During his interrogation, the detective made several statements that he did not believe defendant was telling the truth about his stepdaughter. At trial, defendant contended those statements were vouching comments. In light of the recent Oregon Supreme Court decision in State v. Chandler, 360 Or 323 (2016), the court holds that the statements were admissible to provide context for defendant's responses during the interview.
The day after defendant's interrogation, where he was Mirandized and ultimately confessed, defendant was approached in jail by a DHS caseworker and asked about the allegations. Defendant made additional incriminating statements. The court concludes that there was no Miranda violation because a reasonable person in defendant's position would not have had any reason to believe that his rights had changed after the interrogation. The DHS caseworker identified herself, told defendant that she was conducting an investigation, and reminded him that he did not have to talk to her.
[http://www.publications.ojd.state.or.us/docs/A153009.pdf State v. Codon, 281 Or App 165 (2016) (Garrett, J.)
Civil Commitment - Appellant Was Not a Danger to Others and Could Provide Basic Needs
The court reverses a civil commitment order, concluding that the evidence was insufficient to establish that appellant was a danger to others and was unable to meet his own basic health and safety needs. Before his commitment, appellant, a 45-year-old man, was in jail for an unspecified period of time and then in the hospital. While in jail, appellant refused to eat or drink and behaved as if he was psychotic. He was transferred to the hospital where he would verbally lash out at other patients and staff, and would swing his arms through the air, but would not actually hit anyone. Staff would intervene and often placed him in segregation. At his civil commitment hearing, defendant testified, along with two doctors. Defendant made comments that he could walk easily from Alaska to Oregon. Defendant suffered from several health problems and would often stop taking his psychiatric medication.
The court concludes that there is insufficient evidence that appellant is a danger to others based on the fact that staff often intervened when appellant was agitated. There was no other evidence that appellant had ever harmed anyone and had not actually attempted to hit anyone at the hospital. The court further concludes that there is insufficient evidence that appellant cannot meet his basic needs. Although his statements about his ability to walk very far distances were unreasonable, they do not demonstrate that he lacks the capacity to survive. Additionally, the evidence showed that appellant resumed eating and drinking when he was at the hospital.
State v. S.P. 281 Or App 177 (2016) (Garrett, J.)
Per Curiam - Reversing Attorney Fee Award
The court concludes that the trial court plainly erred by awarding attorney fees. The court exercises its discretion to correct the error because the amount of the award, over $1,000, was substantial in light of defendant's circumstances.
State v. Hagstrom, 281 Or App 188 (2016) (per curiam)
Per Curiam - Evidence Legally Insufficient for Civil Commitment
The state concedes that the evidence is legally insufficient to support the involuntary commitment.
State v. R.R.P., 281 Or App 190 (2016) (per curiam)
Per Curiam - Under Previous Version of Civil Commitment Statute Evidence is Legally Insufficient
In three cases presenting nearly identical legal issues, the court reverses civil commitment orders obtained under an earlier version of the statute, even though the civil commitment proceedings occurred after the statute was amended. Because neither party presented any argument for application of the current statute, the court applies the earlier version. The court concludes in each case that the state failed to prove that civil commitment was warranted.
State v. S.L., 281 Or App 192 (2016) (per curiam)
State v. J.L., 281 Or App 195 (2016) (per curiam)
State v. C.F.-S., 281 Or App 198 (2016) (per curiam)
Per Curiam - Juvenile Dependency - Record Below Insufficient to Support Jurisdiction
The court accepts the state's concession that the record below was insufficient to establish that there was a current risk of harm to the children. DHS asserted two bases for jurisdiction, one of which was dismissed by the juvenile court. The other, that parents used to manufacture marijuana, DHS concedes did not create a current risk of harm.
DHS v. P.R.H., 281 Or App 201 (2016) (per curiam)
Per Curiam - Termination of Parental Rights - Mother's Inadequate Assistance of Counsel Claim Fails
The court rejects mother's claim that her attorney provided inadequate assistance at mother's termination of parental rights trial by failing to mount a defense. Mother failed to appear at the trial. Because mother was absent, her attorney was precluded by ORS 419B.815(8) from participating in the trial on her behalf.
DHS v. K.L.H. 281 Or App 203 (2016) (per curiam)
Per Curiam - Post-Conviction Relief - PCR Court Did Not Make Sufficient Findings In the Judgment
The court reverses and remands a PCR judgment so that the PCR court can make findings as required by ORS 138.640(1) with respect to one of petitioner's claims. The PCR court is required to supply the basis for denying a PCR claim in the judgment.
Walls v. Nooth, 281 Or App 205 (2016) (per curiam)
