Oregon Appellate Ct - Sept 14, 2016
by: Sara Werboff • September 16, 2016 • no comments
Search & Seizure - Search Warrant for All Electronic Devices was Overbroad
A search warrant is overbroad when it authorizes the search for and seizure of all electronic devices and the accompanying affidavit establishes probable cause for only two devices. Defendant was convicted of assaulting his girlfriend. The girlfriend told police that the assault may have been recorded on defendant’s home security system, which he also could access on his personal cellphone. Defendant also spoke to the police and played an audio recording of the incident that he had recorded on his cellphone. The police later obtained a search warrant that authorized them to conduct a wholesale search of defendant’s home for any electronic device. During the search, police opened a safe which contained marijuana. Defendant contended that the warrant was overbroad and therefore the entire search was invalid. The court agrees with defendant. Because an electronic device is more akin to a “place to be searched” rather than a “thing to be seized,” the warrant must establish probable cause to search each of those “places.” The warrant did not establish probable cause that evidence of the alleged assault was likely to be found by forensically examining all of defendant’s electronic devices.
The court also rejects the state’s alternative basis for affirmance, wherein it argued that seizure of all the electronic devices was necessary to prevent defendant from remotely deleting the recording of the alleged assault. The court found this contention to be “legally and factually problematic” and because the record would have certainly developed differently below, the court would not review that argument.
State v. Friddle, 281 Or App 130 (2016) (Haselton, S.J.)
Prior Bad Acts Evidence - Johns Test Not Required for Hostile Motive Evidence
In two cases, the court holds that when the state seeks to introduce prior bad acts evidence to prove that defendant had a hostile motive, the evidence does not need to meet the Johns test. The court explains that to the extent the Johns test was required for hostile motive evidence, that requirement was abrogated by the Oregon Supreme Court in Turnidge.
The first and lead case, Tena, involved domestic violence charges. The state sought to introduce evidence of prior assaults of two other partners to show defendant's "hostile motive." Defendant argued that under the Supreme Court's decision in Moen, the trial court was required to apply the Johns factors. On appeal, the court explains that in Turnidge, the Supreme Court clarified that the Johns test applies only to evidence admitted under a doctrine-of-chances theory. Therefore, the trial court did not err when it failed to conduct a Johns analysis before admitting the evidence of the prior assaults. Defendant also assigned error to the trial court's failure to give a limiting instruction to tell the jury it must first find that defendant committed the actus reus before considering the bad act evidence. The court explains that in Turnidge, the Supreme Court held that such an instruction is only required when the bad acts are introduced under a doctrine-of-chances theory, but is not required when evidence is introduced for other relevant purposes. Finally, the court also declines to review for plain error the trial court's failure to conduct 403 balancing, emphasizing that balancing is available upon request and defendant failed to request it.
In the second case, Johnson, the court applies the holding it announced in Tena, and concludes that the trial court did not err in failing to apply the Johns test. Defendant hit the victim's vehicle with her vehicle. The state sought to introduce evidence that defendant had previously threatened the victim to prove that defendant had the motive to hit the victim's car. Because defendant assigned error only to the failure to apply the Johns test, and because the evidence was relevant to show defendant's motive, the trial court did not err in admitting the evidence.
State v. Tena, 281 Or App 57 (2016) (Duncan, P.J.)
State v. Johnson, 281 Or App 51 (2016) (Duncan, P.J.)
Sentencing Enhancements - Defendant Entitled to MJOA on Commercial Drug Enhancement
The court concludes that defendant was entitled to an acquittal on the commercial drug enhancement because the state failed to prove that the delivery of drugs was for consideration. To prove delivery for consideration, the state must show that defendant "has received, or has entered into an agreement to receive, some benefit from or detriment incurred by another person at the time that he or she commits a delivery." Further, that proof is required when the delivery is "an actual, attempted, or constructive transfer of drugs." Here, defendant was found with a large amount of methamphetamine and a large amount of cash. However, that was not sufficient to show that defendant had entered into an agreement for the sale of the methamphetamine in his possession or had otherwise received payment or the promise of payment. That inference would be "impermissible speculation." The court further found that the error was harmless with respect to the delivery charge because the substantial quantity enhancement factor also applied, however, defendant was entitled to resentencing on a possession count.
State v. Villagomez, 281 Or App 29 (2016) (Sercombe, P.J.)
Jury Instructions - Defendant Entitled to Instructions on Deadly Force and Felony Assault
The court holds that defendant was entitled to have the jury instructed on the limitations of the use of deadly physical force (which provides that deadly force is authorized when the person reasonably believes that the other person is committing a felony), and that assault is a felony when it is committed by two or more people. Defendant was involved in an altercation with two men, and stabbed one of them. Defendant asserted that he had been attacked by the two men. The deadly force instruction should have been given because the jury would have to conclude, in assessing defendant's self-defense defense, that defendant used an appropriate degree of force. The jury could believe that, because defendant had stabbed someone, that he used deadly physical force and therefore the jury should have been instructed as to when deadly force is permissible. Additionally, defendant's requested instruction on felony assault was also required because there was evidence that defendant was attacked by both men.
State v. Kimbrell, 281 Or App 20 (2016) (Sercombe, P.J.)
In Camera Inspection of Records - Trial Court's Discretion to Conduct In Camera Review
The court grants reconsideration and clarifies part of its original holding. In the original opinion, the court held that defendant had made the threshold showing for an in camera inspection of the victim’s counseling records. The court clarifies that, after a defendant makes that showing, the trial court still has discretion to decide whether to conduct the review. However, the court finds that in this case, the only permissible choice for the trial court is to conduct the inspection because 1) the charges against defendant were grave, 2) the victim had made equivocal statements about whether abuse occurred in the same period she began counseling so it was reasonable to believe her records may contain other equivocal statements, 3) the statements would be critical to the defense, 4) the evidence was not readily available from other sources, and 5) the records were not voluminous.
State v. Lammi, 281 Or App 96 (2016) (Lagesen, J.)
Venue - Defendant Not Entitled to Judgment of Acquittal or Dismissal after Mills
Defendant is entitled to an evidentiary hearing to contest venue, but post-Mills, defendant is not entitled to a judgment of acquittal or a dismissal due to the state's failure to prove venue. Defendant was charged with using a child in a sexually explicit display after K, who lived in Washington, send nude pictures to defendant, who lived in Tillamook. Before trial, all of the evidence obtained from defendant's computers in Tillamook was suppressed. Defendant then moved to dismiss the indictment because the state would not be able to prove that the crimes occurred in Tillamook, consistent with the law at the time (before Mills). The court holds that defendant is not entitled to a dismissal for two reasons. First, defendant did not raise the issue of venue in a way that was consistent with Mills. Instead of raising venue immediately, he waited until the favorable ruling on his motion to suppress. Second, there was evidence below, even without the suppressed evidence, that would support venue in Tillamook. However, rather than affirm on that basis, the court remands for an evidentiary hearing on venue, as it has done in other post-Mills cases.
State v. Schindler, 281 Or App 86 (2016) (Lagesen, J.)
Search & Seizure - Police Lacked Reasonable Suspicion to Stop Defendant - Emergency Aid Exception Unavailable
The court concludes that 1) police lacked reasonable suspicion that a crime had been committed, and 2) the warrantless stop of defendant’s car was not justified by the emergency aid exception. Police responded to a 9-1-1 hang-up call placed from a pay phone outside of a market. Police stopped the only car in the area, defendant’s, because he believed that someone in the car may have called 9-1-1. At that time, the officer did not know if a crime had been committed, and also did not know whether someone in the car needed assistance. Because the officer admitted that he had “no idea,” that admission “precludes the conclusion that [the officer] had an objectively reasonable belief” that defendant or her passengers were either having an emergency or committing a crime.
The court also rejects the state’s alternative argument that the officer had not seized defendant. At the suppression hearing the state did not dispute that the officer stopped defendant, and so that parties had no reason to develop the record on that point.
State v. Berg, 281 Or App 101 (2016) (Lagesen, J.)
Termination of Parental Rights - Mother Entitled to Evidentiary Hearing on Adequacy of Counsel
On remand from the Supreme Court, the court concludes that, in this termination of parental rights proceeding, mother has raised a colorable claim that he counsel was inadequate, but, because the record does not contain enough information for the court to rule, the court remands to the juvenile court for an evidentiary hearing. Mother was appointed a guardian ad litum (GAL) because of concerns about her mental fitness. Mother contends that her counsel rendered inadequate assistance for failing to seek removal of the GAL once mother had demonstrated competency to proceed. If mother was indeed entitled to have the GAL removed, then her counsel’s failure to do so implicated the fundamental fairness of the termination proceeding.
DHS v. M.U.L., 281 Or App 120 (2016) (Garrett, J.)
Juvenile Dependency - Evidence Sufficient for Juvenile Court's Continuing Jurisdiction
The court holds that the juvenile court did not err in denying father's motion to dismiss because there was a current threat of harm to the children's welfare. Father sought dismissal arguing that grandfather's availability and willingness to care for the children obviated the need for continuing jurisdiction. However, the juvenile court found that despite grandfather's efforts, it was not persuaded that grandfather's care would ameliorate the risks to the children. The court concludes that, viewing the evidence in the light most favorable to the juvenile court's decision, there was sufficient evidence of an ongoing threat to the children's welfare.
DHS v. C.P., 281 Or App 10 (2016) (Ortega, P.J.)
Post-Conviction Relief - Dismissal of Successive or Untimely Petition
The court holds that a judgment dismissing a successive or untimely petition is appealable, but in this case, the post-conviction court did not err in dismissing the petition as untimely and successive. Petitioner filed a petition that he conceded was both untimely and successive, but argued that he could avail himself of the escape clause permitting such petitions when the grounds for relief “could not reasonably have been raised” within the PCR limitations period. First, the court explains that a dismissal for an untimely or successive petition is not a finding that the petition is meritless (which would preclude appellate review). Second, the court explains that to withstand a motion to dismiss, the petition must allege facts, which if proven, would show he was entitled to avail himself of the escape clauses. The petition here either did not allege sufficient facts or alleged a theory that was foreclosed by case law.
Hayward v. Premo, 281 Or App 113 (2016) (Lagesen, J.)
Restitution - Attorneys Fees - Reversing Attorney Fees but Affirming Restitution Award
The court affirms a restitution award to a victim for the cost of installing a home security system after defendant burglarized her home. Defendant disputed that the expenses were reasonably foreseeable. The court finds that the evidence, specifically the victim's testimony that she installed the system because of her fear from the burglary, established a causal link between defendant’s crime and her expenses.
The court finds that the trial court plainly erred in imposing attorneys fees and exercised its discretion to correct the error in light of defendant’s individual circumstances making it unlikely he could ever pay: his age of 66, struggles with alcohol, that defendant was to begin in-patient alcohol treatment and would not be working, and defendant’s lack of permanent home and the significant restitution judgment.
State v. Christy, 281 Or App 108 (2016) (Lagesen, J.)
