Oregon Court of Appeals 12-29-10
by: Abassos • December 28, 2010 • no comments
Read the full article for details about the following new cases:
- Stop - Reasonable Suspicion
- Delinquency - Restitution
- Assault I - Merger
- Dependency - Permanency Plan/Adoption
- Search - Implied Consent
- Motion for Continuance - Due Process
- Speedy Trial - 6 Months of Unexplained Delay
- Civil Commitment - Dangerous to Self
Stop - Reasonable Suspicion
The following facts give rise to reasonable suspicion for a stop: a caller who gives a phone number, name and address, reports that a white male wearing black pants, shirt and hat appears to be casing houses in a high crime neighborhood. When the officers arrive they see a white male matching the description, on a small pathway commonly used as an escape route, who attempts to hide himself in a bush when he sees the police. State v. Mitchele
The following facts give rise to reasonable suspicion for a stop: After talking to defendant's family members, the officer reasonably believes that defendant is on probation, that defendant has a condition that prohibits him from drinking alcohol and that defendant has been drinking alcohol. Probation violations qualify as illegal activity for the purposes of a stop. The fact that defendant did not actually have a no-alcohol condition is relevant but not conclusive as to whether the officer had reasonable suspicion at the time of the stop. Also, defendant's consent to search was valid where the officer correctly informed defendant that he could refuse the search but that he would be arrested for a probation violation if he did not consent. State v. Hiner
Delinquency - Restitution
ORS 419C.450(1)(a), the delinquency restitution statute, incorporates the definitions from the adult restitution statutes. Thus, a youth can be ordered to pay money as restitution to the Criminal Injuries Compensation Account even though the account isn't a victim in the traditional sense. State v. NLD
Assault I - Serious Physical Injury
An injury is a serious physical one where defendant knocked the victim unconscious with a baseball bat, exposing the victim's skull and leaving a scar visible to the jury 5 months later. The court finds both that the jury could have found that such a blow was life threatening and also that a 5 month old scar qualifies as a protracted disfigurement. State v. Alvarez
Assault I - Merger
The crimes of Unlawful Use of a Weapon and Assault I, stemming from a single assault with a baseball bat, do not merge. The elements of UUW are not subsumed within Assault I because UUW requires the carrying or possession of a weapon and Assault I can be committed without carrying or possessing a weapon. Like when Edward Norton bashed the guy's head into a curb in American History X. The same principle applies to Assault II and UUW. State v. Alvarez
Dependency - Permanency Plan - Adoption
Although the juvenile court determined that the permanency plan should be "adoption," we reject DHS's contention that the juvenile court did no more than recommend an open adoption. Rather, the court found that an open adoption would best meet child's needs and decided that, if circumstances changed and an open adoption became impossible, a reexamination of the permanency plan would be required. Doing so was within the court's authority. Unless there is good cause not to hold a permanency hearing, a court's decision to conduct a permanency hearing, including a hearing on the court's own motion, is consistent with ORS 419B.470(5). At a permanency hearing, a court makes findings based on a preponderance of the evidence before it; those findings may include a determination of the likelihood of an open adoption and whether an open adoption is in the child's best interests. The court also has authority to order another permanency hearing on its own motion; unless there is good cause not to hold a hearing, it may choose to do so where circumstances relating to the child's likely placement change.
Search - Implied Consent
An officer's entry into the area on the side of a house is presumptively a trespass unless there is evidence that invitation is otherwise implied. Here, officers did not have implied consent to go down a driveway on the side of Defendant's house to look at the VIN number of the car. Because the information from that illegal search was used to convince defendant to consent to a search of his house, the consent was involuntary if there was a but-for relationship between the illegally derived information and the consent. Remanded for further findings from the trial court. State v. Olinger
Motion for Continuance - Due Process
A defendant's Due Process right to have an attorney at a jury trial outweighs the State's interest in avoiding "witness fatigue". I hesitate to editorialize in these summaries but this was a truly egregious judicial decision. Defendant found out that his attorney withdrew from his case on a Friday and the judge forced him to go to trial pro se on the following Tuesday in a case with more than a thousand pages of discovery, a co-defendant, and serious felony charges. There wasn't any indication that defendant was attempting to avoid trial or even that he was capable of handling a trial. State v. Gale
Speedy Trial - 6 months of unexplained delay
A motion to dismiss should have been granted where the state was responsible for 6 months of the 16 month delay for reasons of neglect or which otherwise could not be explained. The court finds this case to be identical to State v. Ton, where there was an 8 month delay. State v. Dobson
Civil Commitment - Dangerous to Self
Unpredictable and impulsive behavior is not sufficient for commitment even if the behavior is inherently risky and a result of a mental disorder. Here, AMIP had a tendency to get paranoid, run away and find herself in a confused state away from her home. This is a classic "harms way" situation where a trial judge and examiners are likely to be convinced by their concern but the appellate court has repeatedly said that such evidence is speculative and not clear and convincing, even in the best light for the state. State v B.B.
