Oregon Appellate Ct - Oct 26, 2016
by: Sara Werboff • October 28, 2016 • no comments
DUII - Judgment of Conviction Not Required to Prove Predicate DUII if there is a Finding of Guilt
The court concludes that evidence of defendant’s prior California DUII was sufficient to show that defendant was “convicted” of a prior DUII under ORS 813.010(5) even though no judgment of conviction had been entered. The court concludes that the legislature intended the term “convicted” to apply to people who have been found guilty of DUII, even if entry of judgment on that finding is suspended. In reaching that conclusion, the court rejects defendant’s argument that construing a finding of guilt as a conviction is inconsistent with the diversion statutes, and clarifies that the court does not enter a finding of guilt when the court accepts a diversion petition.
State v. Donathan, 281 Or App 781 (2016) (Armstrong, P.J.)
Civil Commitment - Failure to Prove Appellant was a Danger to Others
The court reverses a civil commitment order after concluding that the evidence was not sufficient to show that appellant was a danger to others. Although appellant had made several threatening comments, she had not actually carried out an overt violent act. The vague threats, in the absence of any overt violent act, were not sufficient to establish that it is highly likely that appellant would engage in actual future violence.
State v. G.A.K., 281 Or App 815 (2016) (Sercombe, P.J.)
DNA Testing - Defendant Entitled to Court-Appointed Counsel
Defendant sought appointed counsel under ORS 138.694 (2013) for the purpose of pursuing DNA testing. In order to obtain counsel, defendant was required to file an affidavit that attested to, among other things, that the identity of the perpetrator of the crime was at issue in the original proceeding. Defendant filed an affidavit attesting to all of the required facts. The state argued that because defendant pleaded guilty, the identity of the perpetrator was not an issue. The court rejects that argument because, at the appointment of counsel stage, the trial court is not tasked with evaluating the credibility of the factual assertions and must grant appointed counsel if defendant complied with the affidavit requirements.
State v. Netzler, 281 Or App 822 (2016) (Sercombe, P.J.)
Expert Testimony - CARES Interviewer was Expert on Grooming and her Testimony was Not Scientific Evidence
In this sex abuse case, the court upholds testimony from a CARES interviewer as to grooming behavior, concluding that the interviewer was a qualified expert but was not presenting “scientific evidence.” The interviewer explained generally what grooming is, and then characterized that behavior as possible grooming. The interviewer based that opinion on her experience in conducting over 600 forensic interviews.
The court concludes that the interviewer’s training and experience provided her with specialized knowledge and the grooming testimony was admissible under OEC 702. The court further concludes that because the testimony drew its convincing force from the interviewer’s training and experience, and not principles of science, it was not “scientific” testimony that would be subject to heightened foundational requirements.
State v. Henley, 281 Or App 825 (2016) (Egan, J.)
Indictments - Indictment Subject to Heightened Pleading Requirements for ORICO Offenses
In charging under ORICO, ORS 166.720(6) requires the state to allege the individual thefts that defendant was accused of conspiring to commit with particularity and therefore the trial court erred when it denied defendant’s demurrer and motion in arrest of judgment. Note, this case has the same holding as State v. Stout, 281 Or App 263 (2016). Defendant and Stout were co-defendants accused of conspiring to steal farm equipment.
State v. Holloway, 281 Or App 837 (2016) (Tookey, J.)
First-Degree Burglary - Defendant's Own Unlawful Overnight Use of Building Not Sufficient to Render the Building a Dwelling
The court reverses defendant first-degree burglary conviction and holds that defendant’s own overnight occupancy of a boat was not sufficient to show that the boat was a “dwelling.” Police responded to a report that defendant was breaking into boats docked at a marina. Police found defendant in a boat called the “Amy M.” As he was being arrested, defendant told police that he had stayed overnight in that boat on several occasions. At trial, the trial court denied defendant’s MJOA, agreeing with the state’s contention that defendant’s use of the boat as overnight lodging made that boat a dwelling.
The court conducts a statutory analysis and concludes that defendant’s own use of the boat is not alone sufficient to make that boat a dwelling. Although the text of the statute is ambiguous, the context and legislative history show that “the legislature did not intend for a defendant’s own prior, unlawful habitation in a building to convert that building into a dwelling[.]”
State v. Davis, 281 Or App 855 (2016) (Shorr, J.)
Juvenile Dependency - Lack of Service of Dependency Petition
The juvenile court erred when it entered a combined jurisdictional and dispositional judgment at a hearing where mother did not appear and had not been properly served with the summons and dependency petition. DHS concedes that the juvenile court erred in proceeding with the case in her absence and the court reverses both the jurisdictional and dispositional judgment for both mother and father.
DHS v. C.M.R., 281 Or App 886 (2016) (per curiam)
