Oregon Appellate Ct - Sept 8, 2016
by: Sara Werboff • September 11, 2016 • no comments
Commercial Drug Offense - Text Messages Did Not Constitute Drug Transaction Records
The court concludes that, for the purposes of the commercial drug offense enhancement, the legislature intended "records" to mean "intentionally retained notations regarding events" and "drug transaction records" to apply to notations similar to business records, "that is, records maintained in furtherance of an enterprise conducted over time." The court analyzes the text, context, and legislative history and concludes that the commercial drug offense enhancement was intended to apply to drug offenses that are more serious than delivery for consideration, in other words, it was intended to apply drug offenders who are engaged in drug crimes as a business. Thus, records entails something more than mere evidence of drug-dealing. In this case, the state relied on three text messages between defendant and two of his customers discussing the sale of drugs. Any inference that defendant possessed the text messages for record-keeping purposes was speculative.
NB: Judge Flynn concurred but noted that the legislature did not foresee the "paradigm shift" of ubiquitous electronic communications. Thus, "[w]ithout foreseeing a world in which records of drug transactions are retained in a readily retrievable format without any conscious intent on the part of the person retaining them, the 1991 legislature would not have intentionally excluded such records." Nonetheless, Judge Flynn agrees that the legislature would not have intended the text messages at issue here to be drug transaction records.
State v. Rankins, 280 Or App 673 (2016) (Duncan, P.J.) (Flynn, J., concurring)
Merger of Guilty Verdicts - Witness Tampering Verdicts Should Merge
When a defendant is found guilty of multiple counts of tampering with a witness based on a single act, the guilty verdicts merge under ORS 161.067, even though the counts involve different ways of violating the statute and different witnesses. While defendant was in jail waiting trial on charges involving his mother and brother, he sent a letter to his mother telling her to not show up to court or to change her story, and asking her to tell his brother the same. Defendant was charged with four counts of witness tampering. The court concludes that the guilty verdicts should merge because the two different subsections of the witness tampering statute are a single crime because they are directed to the same harm. Additionally, the crimes did not involve two victims because the victim of witness tampering is the state.
State v. Jenkins, 280 Or App 691 (2016) (Duncan, P.J.)
Sufficiency of Evidence - Insufficient Evidence to Prove that Defendant Possessed Dangerous Weapon
Because there was no evidence that defendant used, attempted to use, or threatened to use an altered spoon in a way that was readily capable of causing death or serious physical injury, defendant was entitled to an MJOA on a dangerous weapon allegation. Defendant, an inmate, was found in possession of a "debatably sharpened" spoon that he contended he used to extract a wad of toilet paper from his ear. The state alleged that defendant possessed a weapon, and further alleged that it was a dangerous weapon. The state argued that because the spoon was "readily capable of causing physical injury" it satisfied the standard for a dangerous weapon. Defendant argued that a because a dangerous weapon is an object designed for another purpose that "if used in a manner rendering it capable of causing" death or serious physical injury, the state was required to prove that defendant used, attempted to use, or threatened to use the spoon as a weapon. The court agrees with defendant and rejects the state's interpretation of dangerous weapon.
State v. Hoard, 280 Or App 721 (2016) (Devore, J.)
Lesser-Included Offense Instruction - Defendant Entitled to Attempt Instruction on Possession of Weapon and Contraband Charges
Defendant was entitled to a lesser-included offense instruction of attempted possession of a weapon and possession of contraband charges when the state alleged that defendant, an inmate, possessed a sharpened spoon. The state argued that the spoon was a completed version of a shank, and defendant argued that the jury could find that he merely attempted to possess what had not yet become a weapon. Because there was evidence that the spoon was not yet a weapon (and therefore not yet contraband), the trial court erred in failing to give a lesser-included offense instruction.
State v. Hoard, 280 Or App 721 (2016) (Devore, J.)
Sufficiency of Evidence - Evidence Sufficient for Aiding and Abetting Theory
Evidence was sufficient to convict defendant of possession of controlled substances on a aiding and abetting theory. Defendant drove two friends to a location where he remained for several hours while his friends harvested psilocybin mushrooms. As defendant was driving his friends away from that location, he was stopped by police who had been told that one of the friends was harvesting mushrooms. The court concludes that a rational jury could conclude that defendant intended to promote or facilitate the possession of the mushrooms. Although there was no direct evidence that defendant knew his friends would be harvesting mushrooms, there was sufficient circumstantial evidence for the jury to infer that defendant and his friends planned together in advance to harvest the mushrooms.
State v. Williamson, 280 Or App 803 (2016) (Flynn, J.)
Post-Conviction Relief - Petitioner Allowed to Make Record Concerning Complaints about PCR Counsel
The court concludes that the post-conviction court abused its discretion in denying petitioner's motion for a continuance without allowing petitioner to make a record regarding the basis for the motion. Although the PCR court has discretion to deny a day-of-trial motion for a continuance, occasionally good cause exists for a continuance. Because the court could not review the purported error in denying the motion when no record had been made, it therefore reverses. The court also concludes that the PCR court could not reject, without further inquiry, petitioner's complaints about his counsel's abandonment of several of his PCR claims.
On the morning of his PCR trial, petitioner requested a continuance, asserting that his counsel was not pursuing several of his claims. Specifically, the record reveals the petitioner's concern that PCR counsel did not present any documentary evidence or testimony in support of his PCR claims that his trial counsel's failure to call several witnesses. Because petitioner's complaints concerned the failure to raise his claim, petitioner was required to alert the PCR court and, in turn, the PCR court was required to determine whether petitioner should be appointed new counsel or if counsel should be directed to raise those claims. The PCR court summarily denied petitioner's efforts to raise those concerns.
NB: Judge Devore authored a lengthy dissent. The dissent principally disputes the majority's reading of the record. Under the dissent's interpretation, petitioner did not have a legitimate complaint about counsel's performance, and the PCR court did not err.
Phillips v. Premo, 280 Or App 634 (2016) (Duncan, P.J) (Devore, J., dissenting)
Juvenile Dependency - Court Failed to Apply Proper Standard to Determine Jurisdiction of Oregon Courts
The court concludes that the trial court applied the wrong analysis to determine jurisdiction in this dependency case when the trial court applied the standard for determining venue inside Oregon instead of applying the test for jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The UCCJEA sets forth rules for determining jurisdiction when a custody case involves multiple jurisdictions. When the mother objected to jurisdiction in Oregon, the trial court denied the objection and, without holding an evidentiary hearing, concluded that the evidence satisfying the venue residency requirement properly gave the trial court jurisdiction. The state conceded that the trial court applied the wrong standard but argued that the court must presume that the trial court implicitly resolved the issue. The court rejects that argument and holds that no presumption applied because the trial court did not apply the correct legal analysis.
Department of Human Services v. R.M.S., 280 Or App 807 (2016) (Flynn, J.)
Appeal and Review - Revocation of Conditional Discharge Not Reviewable on Appeal
The court dismisses defendant's appeal from the revocation of conditional discharge after concluding that review is precluded by ORS 138.050. Defendant pleaded guilty to PCS and entered into a drug court program. The trial court entered a judgment of conditional discharge and defendant's conviction was not entered. The trial court also imposed 18 months of probation. Defendant repeatedly failed to comply with the terms of the conditional discharge but it was not revoked. The probation term ultimately expired, however, neither the state nor defendant moved to discharge the conviction. Defendant again failed to comply and, several months after probation expired, the trial court revoked the conditional discharge, convicted defendant, and imposed 18 months of probation. Defendant appealed.
The court holds that the limitations on appeal following a guilty plea in ORS 138.050 preclude review of defendant's appeal. Defendant had argued that review was permitted under ORS 138.053(3), which allows review of orders extending, modifying, or revoking probation if defendant shows a colorable claim of error. The court rejects that argument because here, defendant was appealing the entry of a judgment of conviction, and defendant had pleaded guilty.
State v. Herrera, 280 Or App 830 (2016) (Haselton, S.J.)
Sufficiency of Pleadings - Inmate's Filing Stated Claim for Conversion
After an inmate filed a document in circuit court asserting that he was wrongfully deprived of his property and requesting return of the property or $600 in compensation, the trial court dismissed the document for failing to state a claim. The court reverses the dismissal, holding that the inmate's filings were sufficient to state a claim for conversion.
Spillino v. Taylor, 280 Or App 700 (2016) (Duncan, P.J.)
Civil Commitment - Sufficiency of Evidence - Per Curiam
State conceded that evidence was legally insufficient for involuntary commitment and the court reverses the judgment.
State v. G.B., 280 Or App 845 (2016) (per curiam)
