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Oregon Appellate Ct - Sept 21, 2016

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by: Sara Werboff • September 22, 2016 • no comments


Search and Seizure - Search of Closed Container Lawful as a Search Incident to Arrest

The court upholds a search of an Altoids tin found in a backpack in defendant's vehicle after defendant had been removed from the vehicle. The officer stopped defendant for traffic violations and, discovering that she lacked insurance, arranged for a tow. While the officer was inventorying the vehicle pursuant to policy, the officer opened a backpack and found marijuana. At that point, the officer had probable cause to arrest defendant for possession of a controlled substance within 1000 feet of a school. The officer then opened the Altoids tin and found additional controlled substances. Defendant argued that, because defendant was not in the vehicle, the search of the Altoids tin was not justified by the search incident to arrest exception. The court rejects that argument, holding that the defendant does not need to be present in the area when the search is done when the basis of the search is to discover evidence of the crime of arrest, so long as the search is reasonable in time, scope, and intensity.

Judge Egan dissents, objecting to the majority's eliminating of any exigency requirement for reliance on search incident to arrest. The dissent argues that, when a search reaches a logical stopping point, police must obtain a warrant before searching further.

State v. Krause, 281 Or App 143 (2016) (Hadlock, C.J.) (Egan, J., dissenting)


Sufficiency of Evidence - Proof of Burglary Requires More than Commission of Crime in a Dwelling

The court rejects the state's argument that defendant was guilty of burglary because he committed theft of the victim's belongings while he was in the home to do home improvement projects with the victim's permission. The state argued, in essence, that defendant exceeded the scope of his permission to be in the home when he committed a crime in the home. The court analyzes the burglary and trespass statutes and observes that 1) burglary includes the elements of trespass, of a building, with the intent to commit a crime, and 2) burglary is a separate crime from, and necessarily precedes, the commission of a separate crime in the building. The state's argument failed to treat burglary as a separate earlier crime and it eliminated the requirement that the trespass coincide with the intent to commit a crime. Because the state presented no other evidence than the thefts to show that defendant's presence in the home was unauthorized, it failed to prove burglary.

State v. Werner, 281 Or App 154 (2016) (Duncan, P.J.)


Jury Concurrence Instruction - Defendant Entitled to Instruction in Fourth-Degree Assault Case

In this fourth-degree assault case, the state alleged one assault but argued that defendant caused two distinct physical injuries, accordingly, the trial court erred when it refused to give a jury concurrence instruction. At defendant's trial, the state presented evidence that defendant had injured his girlfriend by causing her to scrape her knee and by putting his hands around her neck and constricting her breathing. These incidents took place at different points on the same night. The state alleged a single assault. Defendant moved for the state to elect a theory, but the trial court denied that motion. Defendant thereafter requested a jury concurrence, or Boots, instruction which would require the jury to agree to the underlying physical injury. The court holds that where, as here, the state does not elect a theory and the evidence permits the jury to find multiple, separate occurrences of the single crime, a concurrence instruction is required.

State v. Teagues, 281 Or App 182 (2016) (Duncan, P.J.)


Sufficiency of Evidence - Evidence Sufficient to Prove Knife Contained a Spring

The court affirms the denial of defendant's motion for judgment of acquittal on charges stemming from his possession of a knife having a blade that projects or swings into position by force of a spring. Defendant argued that the state did not prove that there was a spring in the knife. The trial court inspected the knife, remarked that it was named a "Tac-Force Speedster Model," and described that the blade of the knife "quickly * * * comes into position" by pressing a "nub" on the outside of the blade. The court explains that a "spring" is not defined by its shape but by its function - it recovers its original shape when released after being distorted. Here, the court concludes, there is sufficient evidence that defendant's knife moved the blade into position by use of a spring, even if the exact nature of the spring was unknown.

State v. Markwell, 281 Or App 196 (2016) (Duncan, P.J.)


Admissibility of Confession - Defendant's Statements Induced by Threats

The court holds that defendant's pre and post-Miranda statements should have been suppressed. Defendant participated in a bank fraud scheme for which he was convicted of theft. When the scheme was discovered, an officer went to defendant's home and questioned him. The officer told defendant, who was in the National Guard, that "this matter can be handled on the state level and not under the military code. And I have not spoken to your commanding officer." Defendant thereafter made incriminating statements. He was then brought to the police station and administered warnings. Defendant made additional incriminating statements.

Under ORS 136.425(1), a confession is unreliable when it was made "under the influence of fear produced by threats." Here, the court concludes, defendant's statement was induced by the officer's threat to tell his commanding officer if defendant did not cooperate, or put another way, his promise not to tell defendant's commanding officer if defendant did cooperate. Additionally, Miranda warnings were not sufficient to dispel the coercive effect of the threat. The threat occurred close in time to the warnings, and nothing occurred which would have indicated to defendant that the threat had disappeared.

State v. Belle, 281 Or App 208 (2016) (Egan, J.)


Pleading Requirements - State Required to Allege with Particularity Pattern of Racketeering Activity for "Inchoate" ORICO Charge

The court holds that the heightened pleading requirements for ORICO crimes under ORS 166.720(6) apply in cases where the state charges an inchoate ORICO crime. In this case, the state alleged that defendant conspired to commit racketeering. Defendant demurred, arguing that the state failed to plead with particularity the predicate offenses underlying the pattern of racketeering activity. The state set forth several arguments that the heightened pleading requirements do not apply to inchoate ORICO offenses, only completed ones. The court finds none of those arguments availing and notes that the inchoate ORICO provision incorporates the elements of a completed ORICO provisions. Therefore the state is still required to prove a pattern of racketeering activity as a material element of an inchoate ORICO offense. Under the plain language of the ORICO pleading statute, the state was required to meet the pleading requirements for an inchoate ORICO offense.

State v. Stout, 281 Or App 263 (2016) (Shorr, J.)


Probation Revocation - Probationer Does Not Have Due Process Right to Discovery of his Probation File

The court holds that the due process rights afforded to probationers facing revocation proceedings do not include the right to discovery of exculpatory evidence in a probation file when that file is not being used by the state in the revocation proceedings. Here, the state did not use the probation file and instead called defendant's probation officer to testify to the violations. Defendant asserted that he had a Fourteenth Amendment right to review his probation file and was prejudiced by the state's denial of that right. The court notes that a defendant facing revocation proceedings is entitled to fewer due process rights than a defendant facing criminal charges, and the rights previously recognized do not include the right to seek discovery of a probation file that the state does not use as evidence.

State v. Presock, 281 Or App 277 (Shorr, J.)


Juvenile Dependency - Termination of Parental Rights - Assertion of Jurisdiction and Termination of Rights Not Error

Although the court had earlier reversed the juvenile court's jurisdiction under a petition filed in 2014 (2014 petition), the court concludes that the juvenile court properly had jurisdiction under a subsequent petition filed in 2015 (2015 petition) and further concludes that because jurisdiction was proper, there was no error in terminating father's parental rights. First, the court concludes that the jurisdiction found under the 2015 petition was independent of the finding under the 2014 petition that was ultimately reversed. Second, the court also rejects father's argument that the trial court plainly erred in failing to consider mother's ability to parent at the 2015 hearing.

Finally, with respect to father's challenge to the termination of his parental rights, the court initially concludes that the judgment is appealable and rejects the state's argument that father's appeal was procedurally barred because he failed to appear for his TPR trial. The court concludes that father did appear, earlier, to answer the petition and therefore he could appeal the TPR determination. However, the court concludes that father's appeal fails on the merits because it was not, as father asserted, inextricably tied to the 2014 petition.

Dept. of Human Services v. B.P., 281 Or App 218 (2016) (Egan, J.)


Juvenile Dependency - Parents Could Not Contest Evidence Through Attorneys when They Failed to Personally Appear

Parents did not personally appear for their dependency hearing and therefore, under ORS 419B.815, their attorneys were not permitted to make objections to the state's evidence on their behalf. The court first dispenses with an appealability issue and holds, as it did in DHS v. B.P. (decided this day), that parents can appeal the trial court's decision because they did appear and answer to the petition. The parents made several appearances in this case before they failed to appear for the hearing. The appeal was therefore not procedurally barred as a default judgment under ORS 19.245.

With respect to the merits of their appeal, the court holds that ORS 419B.815(7) and (8) require personal appearance and do not permit indirect participation through counsel. The text, context, and legislative history shows that the legislature intended to impose a legal consequence for a parent's failure to personally appear, specifically, that the parent loses the ability to contest the case on its merits. Because the juvenile court is permitted to find parents in "default" and find jurisdiction, parents' attorneys were not permitted to make evidentiary objections or otherwise "save parents from the legal effect of parents' absence by acting for parents to challenge the evidence presented."

Dept. of Human Services v. S.C.T., 281 Or App 246 (2016) (Devore, J.)


Parole - Board Lacked Authority to Postpone Petitioner's Release Date

The court concludes that the board of parole erred in rescinding petitioner's release date for a reason other than the three permissible statutory reasons. After the board affirmed petitioner's release date, and a few days before his scheduled release, the board rescinded the release date. The court holds that the board review process is bound by statutory limitations, and, in this case, the board could postpone a scheduled release date only for three statutorily prescribed reasons: serious misconduct, severe emotional disturbance, and inadequacy of release plan. ORS 144.125(1)-(3) (1985). The board did not make any of those determinations and therefore lacked authority to postpone petitioner's release.

Porter v. Board of Parole, 281 Or App 237 (2016) (Devore, J.)