Oregon Appellate Ct - Sept. 30, 2015

by: Abassos, Alarson and Cmaloney • September 30, 2015 • no comments

Automobile exception – A Recently Parked Vehicle Is Not "Mobile", Even If The Police Had Information for a Non-Criminal Stop While the Vehicle Was Moving

A vehicle is not mobile, for the purposes of the automobile exception, where the officers have enough information for a welfare check before a car stops and probable cause for a crime just after the vehicle parks. The automobile exception requires that the vehicle be mobile when the police encounter it in connection with a crime. Here, the officers followed a car to perform a welfare check. Only after the car had stopped did the officers develop probable cause that defendant possessed weapons and drugs in the car. Because the car was immobile at that time, the automobile exception did not apply when the officers searched the vehicle. The court specifically rejects the state's proposed formulation of the automobile exception that it "applies if the vehicle is mobile when officers encounter it in connection with a lawful, even if noncriminal, basis sufficient to support a stop that evolves into a criminal encounter." State v. Belander 274 Or App 167 (2015).

Character Evidence – Gang Imagery Pulled From the Internet Admissible for Motive Because State v Williams and 404(4)

In an Assault III trial, gang images and quotes, unconnected to defendant and pulled from the internet, were admissible to prove the defendant's motive to assault the victim. The imagery had to do with Vagos motorcycle gang beliefs that protecting each other is good and snitching is bad. (It was undisputed that defendant was a Vagos gang member). For example, the state offered an image from "Vagos Scandinavia" of a green skull and the phrase "whenever someone hurts your brother you will avenge him because he would do the same." The court finds that such images are relevant to the tenets of the gang and, therefore, relevant to defendant's motive to assault the victim, who was friends with someone who had snitched on a local Vagos member. The court then finds that while the evidence was character evidence because the state was using it show that defendant acted in accordance with the beliefs of the gang to which he belonged, OEC 404(4) makes character evidence admissible against the defendant to prove motive:

"In the wake of Williams, “other acts” evidence offered “for nonpropensity purposes— i.e., to prove motive . . . generally will be admissible as long as the particular facts of the case do not demonstrate a risk of unfair prejudice that outweighs the probative value of the evidence.”

The particularly disturbing thing about this case is that the court seems to assume that the Googled images accurately represent the beliefs of "Vagos" rather than particular members of Vagos or local clubs outside of defendant's local chapter. A quick internet search reveals that Vagos has about 4000 members across the US, Canada, Mexico, Sweden and Australia. The connection between "Vagos Scandinavia" and defendant's Oregon chapter would seem to be dubious. But the court doesn't discuss that link, assuming as the trial court did, that the belief of one is the same as the belief for all.

Additionally, the state introduced photographs from another Vagos member’s home that depicted Vagos paraphernalia and decoration. As the photos of someone else’s home were not probative of defendant’s motive for assaulting the victim, it was an error to admit them. However, the error was harmless since the evidence was cumulative and not qualitatively different than the other Vagos evidence that was admitted. State v. Haugen 274 Or App 127 (2015).

Kidnapping I – Intent to Interfere With Liberty - Dragging Victim to A Porta-Potty For Sexual Assault Was Not Merely Incidental to Assault

Kidnapping in the First Degree requires that the defendant intend to interfere substantially with the victim’s personal liberty, such that the abduction was not merely incidental to other related, but independent crimes. Here, defendant ambushed the victim at a construction site and then moved her off the sidewalk to the side of a building where he dragged her into a porta-potty and sexually assaulted her. The evidence was sufficient for a reasonable jury to infer that the abduction was not merely incidental to the sexual assault because (a) the movement went beyond what was needed to accomplish the independent crime of rape and (b) was preliminary to the subsequent rape and decidedly indicated [the] defendant’s intent to keep the victim under control and isolated". See also State v Mejia and State v Washington. State v. Worth 274 Or App 1, 2015.

Eyewitness ID – Admissibility Per Lawson/James Requires 401 Relevance, 602 Personal Knowledge & 701 Foundation for Lay Opinion

To establish admissibility of an eyewitness ID, the state must establish (1) relevance under OEC 401; (2) personal knowledge under OEC 602; and (3) the foundation for lay opinion evidence under OEC 701. Here, the victim was “sucker punched” and hit with a hammer as he was leaving a bar. The victim returned home and called the police, indicating he believed the assailant to be a Vagos gang member. Five days later the victim identified the defendant in a 23-photo line-up of Vagos members. The state met the burden for ID admissibility because:

1. The identification of the assailant was relevant under OEC 401.

2. The victim satisfied personal knowledge under OEC 602. Before being shown any photos, the victim was able to describe the assault and his assailants in detail, including defendant’s height, approximate age, and physical stature. The victim was also confident that the person who punched him was the same person who spoke to him immediately prior to the assault.

3. The identification procedure did not create an impermissible basis for the procedure under OEC 701. The officer did not suspect the defendant at that time but someone else; the officer’s objective was to gather information about possible other witnesses at the bar; the officer instructed the victim that the assailant might not be in the line-up; it was logical to do an a-typical lineup of Vagos members because the victim had provided that trait as a basis for identifying witnesses; the victim identified other witnesses present who corroborated the victim’s story; and the officer’s feedback during the ID procedure did not unduly influence the victim.

State v. Haugen 274 Or App 127 (2015).

Waiving a Jury - The State Does Not Have a Right to Present Its Case in The Manner of Its Choosing

The need for a court’s consent to a jury waiver stems from ensuring that the defendant’s waiver is voluntary, and at the same time, permits the court to exercise its discretion with consideration to judicial economy. The state does not have a right to insist on a jury trial. Here, defendant wished to waive jury on his reckless driving charge and try his DUII to a jury so that evidence of his prior DUII Diversion participation would not reach the jury. The prosecutor urged denial of the jury waiver because the state had a right to present its case in the manner of its choosing and because it would be awkward to separate the charges. As the trial court did not express its reasons for denying the defendant’s waiver and may have denied the waiver based on the prosecutor’s impermissible reasons, the case is remanded. Because the prior DUII diversion evidence was accompanied by a limiting instruction, the DUII conviction is not affected. State v. Austin 274 Or App 114 (2015).

Double Jeopardy – To Bar a Retrial, A Prosecutor Must Know Her Conduct Is Improper and Be At Least Indifferent to a Mistrial

Under Article 1, section 12, prosecutorial misconduct bars retrial of a defendant only when (1) the misconduct is so prejudicial it cannot be cured by means short of a mistrial; (2) the prosecutor knew that the conduct was improper and prejudicial; and (3) the prosecutor either intended or was indifferent to the resulting mistrial. Under the federal inquiry, the prosecutor must intend to provoke a mistrial. Here, the prosecutor made inappropriate comments regarding the defendant’s presumption of innocence during closing arguments. The trial court did not err in finding that the prosecutor—who testified on remand that she did not know the impropriety of her comments—did not intend the resulting mistrial. The tests for both the state and federal constitution were satisfied. State v. Worth 274 Or App 1, 2015.

OEC 403 – A Defendant's In-Court Statement That "I Should Have Just Killed the Bitch" Is Relevant to Contradict a Defense of Mistaken Identification

At the close of sentencing at his first trial, the defendant stood up and said, “I should have just killed the bitch”. The statement was admitted as an admission in his second trial after remand. While the statements were prejudicial, the probative nature of the statement—which flatly contradicted his defense that someone else had assaulted the victim and that he had been misidentified—outweighed the prejudice to the defendant. State v. Worth 274 Or App 1, 2015.

Sentencing – The 400% Rule Applies to the Determinate Portion of a Dangerous Offender Sentence

Where a trial court imposes a determinate dangerous offender sentence in excess of the presumptive sentence, the “400%” rule still applies to limit the total determinate terms of consecutive sentences. However, that constraint does not apply to the indeterminate component of consecutive dangerous offender sentences: “Conversely, where a trial court limits the determinate component of a dangerous offender sentence to the presumptive sentence , the “400%” rule is inapposite.” Here, convictions were entered on four counts: Kidnapping –I, Sexual-Abuse-I, Unlawful penetration-I, and Assault-II. The court sentenced defendant as a dangerous offender to a total determinate term of incarceration of 594 months with a 240-month determinate sentence applied to the most serious count. Because that determinate amount exceeded the legal limit under the 400% rule, the court remands for resentencing. State v. Worth 274 Or App 1 (2015).

Interfering With a Peace Officer With Regard to Another Person – “Another Person” Means a Person, Not the Public

ORS 162.247(1)(a) (interfering with a peace officer by preventing the officer from performing his duties with regards to another person) requires that a person intentionally try to prevent an officer from performing his duties toward another person. The other person must be an actual person, not merely the general public. Here, after defendant had been stopped for a traffic violation he forcefully backed up his truck into the patrol car, disabling the patrol car’s siren. The Court of Appeals rejects the state’s argument that defendant interfered with the officer’s duty with regard to another person when he disabled the patrol car’s siren, thereby impairing the officer’s ability to drive his emergency vehicle safely. Since there was no evidence that defendant’s actions had anything to do with another person, as opposed to the public, “the trial court plainly erred by entering a judgment of conviction on the charge.” State v Adams, 274 Or App 42 (2015).

Stops – A Strong Odor of Marijuana Supports Reasonable Suspicion to Stop For Criminal Possession

A strong odor of marijuana emanating from a person is enough for reasonable suspicion to stop a person to investigate possession of a criminal amount of marijuana. Reasonable suspicion does not require the officer to articulate his belief that the stopped person possesses a criminal amount of marijuana. Here, defendant was a passenger during a traffic stop. The driver consented to a search of the car and the police officer directed the passengers to get out of the car. When defendant got out of the car the officer smelled a “strong odor of marijuana” around the defendant and believed the defendant was in possession of a large amount marijuana. The officer asked for consent to search defendant’s pockets and he consented. Thus, the officer reasonably and legally inferred that defendant was carrying a large amount of marijuana. Interestingly, it's not clear this case comes out differently post-legalization. The court's blunt logic that "an officer who smells a strong odor of marijuana emanating from a person can reasonably infer that that person is carrying a large amount of marijuana" would seem to apply to 4 ounces if it applies to 1 ounce. Of course, defense attorneys should argue that possession of a "large amount of marijuana" is now legal and one can't distinguish by smell a larger amount. State v Vennell, 274 Or App 94 (2015).

Search Incident to Arrest – An Intrusion Into a Person's Clothes Requires Something More Than a Reasonable Concern for Officer Safety

A search of a person’s pockets incident to arrest requires “something more” than a reasonable belief that the person poses a threat to the officer’s safety. To determine whether there was “something more” that would justify an intrusion greater than a patdown, a court should consider both the nature and the extent of the perceived danger and the degree of intrusion or restraint resulting form the officer’s conduct. Here, an officer was investigating a fight and saw defendant, who had been identified as being involved in the fight. The officer ordered defendant to the ground numerous times and he failed to respond. When defendant finally complied the officer could see a gun on defendant. The officer removed the gun and discovered it was fake. During this time the officer could hear yelling nearby, but could not see what was happening, and was concerned that other suspects were nearby. Then a backup officer arrived. The officers handcuffed defendant and removed everything from his pockets to look for weapons and means of escape. The officers found cocaine. The Court of Appeals finds that the initial officer safety concerns had dissipated at the time of the search, but not so much that it was unreasonable for the officers to search defendant’s pockets for weapons or means of escape. Accordingly, the search was lawful. State v Castillo-Lima, 274 Or App 67 (2015).

Restitution – The Court Can't Make Up a Number Out of Thin Air

The trial court plainly erred where it imposed $3000 of restitution but the record reflected only 1000 dollars of damage. The court corrects the unpreserved error because the interests of justice militate against requiring a defendant to pay an obligation that is unsubstantiated by the record. State v. Morgan 274 Or App 161 (2015).

Dependency Jurisdiction – Joint Custody and One Unfit Parent Does Not Alone Create a Basis for Jurisdiction

Juvenile court jurisdiction is improper unless DHS proves that facts concerning each available parent expose the child to risk of serious loss or injury. Here, mother was indisputably unfit. However, the trial court improperly found the father could not protect the children where (1) father did not have sole custody; (2) the court believed mother intended to visit the children against court orders; and (3) in the past, police declined to intervene on father’s behalf without a court order when mother had physical custody of the children. Because these findings related to other people’s actions and not the father’s ability to protect the children, the juvenile court jurisdiction was improper. DHS v JR 274 Or App 107 (2015).

Appellate Procedure - The Appellate Court May Use the Record to Interpret An Ambiguous Trial Court Order Susceptible to a Clerical Error

When a trial court’s oral and written orders are inconsistent, and the written order was plainly susceptible to a clerical error, then the appellate court may look into the record to determine the trial court’s intent. This is an exception to the general rule that the appellate court is bound by the written order of the trial court even if the record indicates that it meant to rule otherwise. Here, the trial court used a check-the-box form for its written civil commitment order that listed only statutory subsection numbers without indicting the findings that applied to each. The statutory basis for the civil commitment marked on the trial court’s written order was inconsistent with the court’s oral ruling. Since the check-the-box form was plainly susceptible to a clerical error, the record could be examined to determine the trial court’s intent. State v D.Z., 274 Or App 77 (2015).