2017 Case Summaries by Topic

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by: • January 21, 2018 • no comments

DRAFTER'S NOTES:

newest review integrated: Dec 28 (end of year)

oldest review integrated: Oct 25

Appeals

Appeals—Justiciability—Mootness

Appeal of contempt judgment that imposed no sanctions is moot because judgment does not carry sufficient social stigma and only mere possibility that judgment might carry future adverse consequences.

Defendant appeals a judgment of punitive contempt based on the finding that he violated the terms of a restraining order and assigns error to the trial court’s denial of his judgment of acquittal. The trial court found defendant in contempt, but did not impose any sanctions. The state argues that the appeal is moot. The court concludes that, absent a sufficiently stigmatizing sanction, a judgment for contempt alone does not carry sufficient social stigma to prevent mootness. Additionally, mere possibility that contempt judgment may have future adverse legal consequences insufficient to prevent appeal from being moot.

State v. Welch, 289 Or App 118 (2017) (Shorr, J.)

Appellate Review—Jury Instructions

Appellate court will only review accuracy of jury instruction actually submitted to the trial court notwithstanding conceded “typographical” error.

Defendant appeals from a judgment of conviction for one count of felony murder, manslaughter, and first-degree assault and assigns error to the trial court’s rejection of a special injury instruction on felony murder. The proposed instruction stated in part: “If the felony was completed, terminated, or withdrawn from prior to the coparticipant’s commission of the felony, this may be sufficient to break the causal connection between the felony and the homicide * * *.” Although defendant and the state agree that the proposed instruction contains a typographical error in that the italicized portion should state “commission of the homicide,” the appellate court concludes that it must review the jury instruction actually submitted. Because, as the parties agree, the submitted instruction was not a correct statement of the law, the trial court did not error in refusing to give it.

State v. Lopez-Minjarez, 289 Or App 403 (2017) (James, J.)

Appeals—Alternative Basis for Affirmance

Appellate court may not consider state’s proffered alternative basis for affirmance where youth could have created a different record had the state raised argument in the juvenile court.

Youth appeals a judgment finding her within the jurisdiction of the juvenile court for acts that, if committed by an adult, would constitute unauthorized use of a vehicle. Youth assigns error to the trial court’s denial of her motion to suppress statements she made to her juvenile probation officer. On appeal, the state essentially concedes that the trial court erred in denying suppression on the grounds advanced in the trial court, but argues that the appellate court should affirm the trial court’s ruling on an alternative basis. The appellate court concludes that it may not affirm on the proffered alternative basis because, had the state raised that argument below, youth could have created a different record that could have affected the disposition of that issue.

State v. M.S.S.K., 289 Or App 450 (2017) (Egan, P.J.)

Civil Commitment

Civil Commitment—Advice of Outcomes—Plain Error

Trial court plainly erred in failing to advise appellant that possible results of commitment proceeding included voluntarily treatment or conditional release.

State v. D.A.R., 289 Or App 435 (2017) (Per Curiam)

Crimes

Crimes—Theft & Criminal Mischief—Property of an owner

Theft and criminal mischief require evidence that the property is the property of another.

Defendant and a friend entered private land without the owner’s knowledge, found an old excavator, and disassembled and sold the excavator as scrap metal. No one knew who owned the excavator, including the property owner. The state charged defendant with, among other crimes, first-degree theft and second-degree criminal mischief. At trial, defendant moved for judgment of acquittal on the grounds that the state had adduced no evidence that the excavator had an owner. The Court holds that although the state is not required to prove the identity of the excavator’s owner, it is required to prove that the excavator had an owner. In cases in which a defendant raises the issue of abandonment, the state must adduce evidence sufficient to allow the jury to find that the property is not abandoned. Because the state failed to prove that the excavator was property of another, the trial court erred in denying defendant’s motion for judgment of acquittal.

State v. Erickson, 288 Or App 704 (2017) (DeHoog, J.)

Failure to Report as a Sex Offender—Classification of juvenile adjudication determines whether failure to report is a felony

Defendant’s failure to report as a sex offender was a felony because “the crime for which the person is required to report” refers to the statutory offense giving rise to the reporting requirement.

Failure to report a move and a new address as a sex offender is a misdemeanor unless “the crime for which the person is required to report is a felony.” Former ORS 181.599(3)(b)(B) (2011). Here, defendant had a juvenile adjudication for acts that, if committed by an adult, would constitute felony sex crimes and failed to report his new address after changing residences. He argued that the juvenile adjudication that triggered the reporting requirement was not a felony because juvenile adjudications are not “crimes.” The court rejected that same argument in State v. Hinkle, 287 Or App 786 (2017).

State v. Rogers, 288 Or App 769 (2017) (Egan, P.J.)

Tampering with Physical Evidence—MJOA—Plain Error

Trial court plainly erred in failing to grant MJOA on tampering with physical evidence count because no evidence from which a reasonable juror could find beyond a reasonable doubt that defendant knew that an official proceeding was pending or about to be initiated when he destroyed evidence. Court exercises discretion to correct error because of magnitude of error and because correcting error does not undermine policies favoring preservation.

State v. Matzke, 288 Or App 842 (2017) (Per Curiam)

Rape—Jury Instructions—Plain Error

Court declines to exercise discretion to correct trial court’s plain error in failing to instruct jury that it was required to find that defendant knowingly subjected the victim to forcible compulsion.

Defendant appeals from a judgment of conviction for rape and coercion and argues that the trial court plainly erred in failing to instruct the jury that it was required to find that he knowingly subjected the victim to forcible compulsion on the rape counts. At trial, the state presented facts that the defendant convinced the victim, an immigrant, that she had to have sex with him to spare herself, her family, and defendant from harm or death from a cartel. Defendant argued that he and the victim had engaged in a consensual role-playing game and, at minimum, that he did not knowingly compel the victim to have sex.

The court agrees that the trial court plainly erred in failing to instruct the jury that it must find that defendant knowingly subjected the victim to forcible compulsion. The court however declines to exercise its discretion to correct the error because it concludes that the error was harmless. The jury’s verdict finding defendant guilty of coercion demonstrates that the jury necessarily discredited defendant’s assertion that he did not know that the victim did not understand that it was a role-playing game and found that defendant knew he was compelling the victim to have sex.

State v. Kerne, 289 Or App 345 (2017) (Lagesen, J.)

Violation of a Stalking Protective Order—Sufficiency of Evidence

Speculative evidence in this case insufficient to prove violation of stalking protective order prohibiting defendant from being within 25 feet of theater.

Defendant appeals in this consolidated case from two judgments of conviction for multiple counts of violation of court’s stalking protective order. n one case, he assigns error to the trial court’s denial of his motion for judgment of acquittal and, in both cases, to the imposition of supervision fees. he evidence at trial established that defendant is subject to an SPO that prevents him from being within 25 feet or a theater, although he is permitted to be within 25 feet of the theater for the purpose of accessing the staircase to his residence, which is above an antique store on the same block.

On the day in question, defendant parked his car on the street in front of the antique store. Specifically, an officer estimated that the car was approximately 10 feet away from a 25-foot line running on the sidewalk from the theater’s property and in the direction defendant’s parked car. The court concludes that the evidence is insufficient for two reasons: First, the trial court’s finding that defendant must have walked around the car in a way that brought him within 25-feet of the theater was entirely speculative. Second, the officer’s estimates of distance coupled with the Pythagorean Theorem are too speculative to support a rational inference of a specific distance. The trial court also plainly erred in imposing supervision fees in view of its explicit finding that defendant lacks the ability to pay financial obligations.

State v. Miller, 289 Or App 353 (2017) (Lagesen, J.)

Crimes—Third-degree assault of an emergency medical services provider—MJOA

Evidence—Mental Disease or Defect Notice Requirement—Lay Witnesses

An emergency room nurse is not an “emergency medical services provider,” within meaning of the third-degree assault statute, ORS 163.165(1)(g). Defendant is not required to provide notice of lay witness mental disease or defect evidence.

Defendant appeals from a judgment of conviction for third-degree assault of an emergency medical services provider and second-degree criminal mischief and raises two assignments of error. Defendant, a patient in an emergency room, struck an emergency room nurse in the head, causing injury, and damaged hospital equipment. Defendant contends that the trial court erred in denying his motion for judgment of acquittal on the third-degree assault count because the nurse was not an “emergency medical services provider” and also erred in excluding lay witness testimony relevant to the mens rea on each conviction.

In view of the text, context, and legislative history of ORS 163.165(1)(g) and ORS 682.025(4), the court concludes that the legislature did not intend for an emergency room nurse to be included in the definition of an emergency medical services provider. The court also concludes that that the trial court erred in ruling that the lay witness testimony suggesting that defendant had a mental disease or defect was inadmissible because defendant had not provided notice under ORS 161.309(2). The notice requirement applies to expert testimony; defendant does not have to provide notice of mental disease or defect evidence from a lay witness.

State v. Bales, 289 Or App 470 (2017) (DeVore, P.J.)

Criminal Procedure

Criminal Procedure—Concurrence Instruction

Trial court erred in failing to give a concurrence instruction where the state presented evidence and argued two factual theories of interfering with a police officer for refusing to obey a lawful order to the jury.

After a traffic stop of defendant escalated into a confrontation with the police, the state charged defendant with interfering with a peace officer for refusing to obey a lawful order. The charging instrument did not specify which order defendant had disobeyed. The evidence at trial supported two factual theories, that defendant had disobeyed orders to get back into his car and that defendant had disobeyed orders to put his arms behind his back. In opening statements and closing arguments, the prosecutor initially focused on defendant’s refusal to get back into his car. Defendant also responded to that theory in closing. During rebuttal and over defendant’s objection, the prosecutor argued that the jury could also convict defendant for refusing the officers’ orders to put his arms behind his back. On appeal, defendant argues that the trial court erred by overruling the objection and not giving a concurrence instruction. The state concedes the error. The court holds that the trial court plainly erred in failing to give a concurrence instruction. It does not decide whether the trial court also erred in overruling the defendant’s objection to the state’s introduction of a new factual theory in rebuttal argument.

State v. Sippel, 288 Or App 391 (2017) (Lagesen, P.J.)

Criminal Procedure—Right to Self-Representation—Mid-trial waiver of counsel

Trial court abused its discretion in denying defendant’s request to waive counsel mid-trial because it did not weigh defendant’s right to proceed pro se against need for an orderly and expeditious trial.

Defendant moved to represent himself at the end of the first day of trial stating that he was unhappy with his counsel’s preparation for trial and cross-examination of witnesses. The trial court denied defendant’s request because it believed counsel was providing excellent representation, that defendant would be at a severe disadvantage if he dismissed counsel, that defendant’s decision, including any request for a legal advisor, should have been made long ago, and because the court did not believe that defendant could adequately represent himself. A trial court may deny a defendant’s mid-trial waiver of his or her right to counsel mid-trial if either of two circumstances are present: (1) the waiver is not knowing and voluntary or (2) the court’s obligation to ensure fair, orderly, and expeditious proceedings outweighs the defendant’s right to self-representation. Here, the trial court could not have found that defendant’s waiver was not knowing and voluntary. The court does not decide whether the potential that defendant would disrupt trial would have warranted the trial court denying his request. Rather, the court concludes that the trial court abused its discretion in denying the waiver because it did not weigh the relevant interests involved in denying defendant’s waiver, specifically it did not balance defendant’s right to proceed pro se against the need for an orderly and expeditious trial.

State v. Williams, 288 Or App 712 (2017) (DeHoog, J.)

Criminal Procedure—Setting Aside Record of Arrest—Arrest for Contempt

When a defendant is charged with the “crime” of contempt and that charge is later dismissed, ORS 137.225(1)(b) (2013) authorizes trial court to set aside the record of arrest.

Defendant appeals from a trial court’s denial of his motion to set aside the record of his arrest for punitive contempt of court, challenging the trial court’s conclusion that ORS 137.225(1)(b) (2013) does not apply to him. Defendant, an attorney, was issued a citation in lieu of arrest for the “offense” of contempt of court for disobeying an order of a circuit court. By information, the state charged him with five counts of the “crime” of contempt, a “U-Misdemeanor.” The contempt charges were later dismissed. Defendant moved under ORS 137.225 for the trial court to set aside the record of his arrest, and the state objected contending that ORS 137.225 only applies to criminal arrests and contempt is not a crime. The trial court denied defendant’s motion. The court concludes that it does not need to determine whether the legislature intended to include charges for contempt under ORS 137.225(1)(b) because, regardless of whether it is actually a crime, the state charged defendant with the “crimes” of contempt.

State v. Simrin, 289 Or App 68 (2017) (Egan, J.)

Criminal Procedure—Waiver of Appointed Counsel—Intentional waiver

Defendant intentionally waived counsel by rejecting option to have public defender appointed and expressing intent to proceed pro se.

In a consolidated case, defendant appeals judgments of conviction for resisting arrest, driving under the influence of intoxicants, and failure to carry or present a license. He assigns error to the trial court’s conclusion that he waived counsel and to the license suspension fee, $255 DUII conviction fee, and a $50 warrant fee imposed at sentencing. Before trial, the court appointed a public defender. At a later hearing, defendant asked the court to remove the public defender because he believed the attorney was incompetent. The trial court asked defendant if he wanted to hire his own attorney or proceed pro se, and defendant stated that he wanted additional time to retain counsel. At the following hearing, defendant stated that he had been unable to find competent counsel and asked for more time so he could prepare for his defense. Defendant refused to sign a waiver of attorney form. The trial court advised defendant of the dangers of self-representation. On appeal, defendant disputes that he intentionally waived counsel. The court disagrees, concluding that defendant’s rejection of the option for a court-appointed attorney and statements that he needed time to prepare his case demonstrate that he intentionally waived counsel. The trial court did not announce that it was imposing the $15 license suspension fee, $255 DUII conviction fee, and a $50 warrant fee imposed at sentencing, but imposed them for the first time in the judgment. In those circumstances, imposition of the fees was error.

State v. Warren, 289 Or App 77 (2017) (Egan, J.)

Criminal Procedure—Variance between pleading and proof

Variance between the state’s pleading and proof impermissibly prejudiced defendant because it required defendant to defend against a different theory than that specified in the indictment.

Defendant appeals from a judgment of conviction for, among other crimes, felon in possession of a firearm and raises two assignments of error in which he asserts the trial court erred in allowing the state to proceed on a different theory of felon in possession of a firearm than what was alleged in the indictment. The charge alleged that defendant knowingly possessed a firearm having been previously convicted of a felony “within the past 15 years.” The state may also prove a violation of the felon in possession of a firearm statute, ORS 166.270, by showing that the person has been convicted of more than one felony. The record at trial established that defendant had an 8-year old conviction for possession of a controlled substance, a felony, that had been treated as a misdemeanor at the time of sentencing. Defendant also had 1989 convictions for delivery and possession of controlled substances.

Prior to trial, defendant moved to exclude evidence of the misdemeanor conviction as irrelevant and the 1989 convictions as irrelevant because they occurred outside the time period alleged in the indictment. The trial court excluded the misdemeanor conviction, but denied the motion in limine with respect to the felonies on the grounds that “within the past 15 years” was not a material element of the felon-in possession charge and that defendant would not be prejudiced by allowing the state to rely on the 1989 convictions. Following the state’s case-in-chief, defendant renewed his arguments in a motion for judgment of acquittal, which the trial court denied.

A variance between an allegation in an indictment and the state’s proof at trial is impermissible if the variance concerns a material element or prejudices defendant. Here, defendant conceded at trial that the phrase “within the past 15 years” was not a material element. The court concludes that the variance prejudiced defendant because it required defendant to defend against a different theory than that specified in the indictment. The court also rejects the state’s argument that the trial court could allow the state to amend the indictment to delete the phrase “within the past 15 years” to correct a defect in the form of the indictment because the state failed to carry its burden of proving that the factual theory upon which the grand jury based its indictment was the same one that the state relied on at trial.

State v. Samuel, 289 Or App 618 (2017) (Duncan, J.)

Defenses

Defenses—Extreme Emotional Disturbance—Preservation

Evidence—OEC 403—Record demonstrates balancing

Defendant’s challenge to trial court’s exclusion of evidence supporting extreme emotional disturbance defense unpreserved; record demonstrates that trial court balanced probative value of autopsy photographs against risk of unfair prejudice.

Defendant killed the victim during an increasingly contentious custody dispute over his grandson, the son of his daughter and the victim. At trial, defendant sought to prove the affirmative defense of extreme emotional disturbance (EED), which requires proof that (1) defendant committed homicide under the influence of an extreme emotional disturbance, (2) that the disturbance was not the result of the defendant’s own intentional, knowingly, reckless, or criminally negligent act, and (3) that there was a reasonable explanation for the disturbance. Evidence of personal characteristics like “age, sex, race, nationality, physical stature, and mental and physical handicaps” are relevant to prove the defense, while evidence of personality characteristics or traits are not. Defendant sought to have the expert testify that defendant (1) has no history of violence, (2) avoids conflict and values compromise, (3) does not share his feelings with others, and (4) values protecting his family. Defendant argued that those attributes were personal characteristics, not personality traits, and that the list of permissible personal characteristics identified in case law was not exhaustive.

On appeal, defendant concedes that the evidence he sought to present was more akin to personality trait evidence, but he contends that case law does not preclude admission of that evidence in regards to the first prong of the EED defense—whether defendant committed homicide under the influence of an extreme emotional disturbance. The court does not reach that question because it concludes that defendant’s argument is unpreserved.

Defendant also challenged the admission of autopsy photographs on the grounds that the probative value of the photographs was substantially outweighed by the danger of unfair prejudice; he also offered to stipulate to whatever facts the state sought to establish though the medical examiner’s testimony. The trial court excluded one photograph and admitted the others, ruling that it could not force the state to stipulate. The court rejects defendant’s argument that the record does not demonstrate OEC 403 balancing. The court also concludes that the trial court did not abuse its discretion in admitting the photographs.

State v. Johnson, 288 Or App 528 (2017) (Armstrong, P.J.)

Defenses—Self-defense Instruction—Sufficiency of Evidence

A self-defense instruction is warranted when the evidence is such that, when the record as a whole is viewed in the light most favorable to the defendant, it would be rational for a factfinder to find that the state had not met its burden of proving that self-defense does not apply.

Before trial, defendant raised the defense of self-defense by providing written notice. At trial, the state’s three witnesses testified that defendant had been the aggressor in a dispute where the victim ultimately pulled a gun on defendant, but varied significantly in their chronologies and the details of the incident. Defendant and defendant’s witness, his partner, also gave inconsistent testimonies. Defendant’s partner claimed that defendant had hit the victim after victim had pulled the gun on him. Defendant requested that the trial court deliver the self-defense instruction, but the trial court declined to give the instruction, reasoning that the evidence did not support it. The court concludes that the trial court erred in not instructing the jury on self-defense.

Viewed in the light most favorable to the defendant, the evidence was sufficient to require the instruction because a rationale fact finder could find from the evidence that the state had not met its burden of proving that self-defense does not apply. Specifically, the jury could have believed the testimony of defendant’s partner. Alternatively, the jury could have believed that, in view of the significant discrepancies in the witnesses’ accounts of the events, that there was too much uncertainty to conclude that defendant had not acted in self-defense.

State v. Wolf, 288 Or App 613 (Lagesen, J.)

Defenses—Guilty Except for Insanity Defense—Insufficient Evidence

Evidence insufficient to support GEI defense instruction where no evidence that as a result of defendant’s mental disease or defect he lacked the substantial capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law.

Defendant appeals from a judgment of conviction for first-degree burglary, second-degree robbery, identity theft, and possession of methamphetamine. On appeal, he assigns error to the trial court’s refusal to instruct the jury on the guilty except for insanity (GEI) defense and refusal to include a GEI option on the jury verdict form. Evidence at trial showed that defendant had burglarized a residence and, two days later, robbed an adult video store. Prior to trial, defendant was twice evaluated by a psychologist to determine to determine if he could aid and assist in his defense, and a third time for the purpose of offering testimony in support of a potential GEI defense. To establish a GEI defense, a defendant must show that, as a result of a mental disease or defect, he lacked the substantial capacity to appreciate the criminality of his conduct and to conform that conduct to the requirements of the law when he committed the crime. Evidence presented at trial showed that defendant was very low functioning, had persistent auditory hallucinations, and delusional beliefs. Defendant was diagnosed with unspecified schizophrenic spectrum or other psychotic disorder, which did not meet the full criteria for the disorders in the schizophrenia spectrum and other psychotic disorders class, and severe stimulant use disorder. The court concludes that even if there was sufficient evidence from which the jury could conclude that defendant suffered from a mental disease or defect, there was no evidence that, as a result, defendant lacked the substantial capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law. Because defendant did not establish a connection between defendant’s condition and his conduct, the trial court did not error in denying the GEI instruction or GEI option on the verdict form.

State v. Shields, 289 Or App 44 (2017) (Shorr, J.)

Defenses—Jury Instructions—Choice of Evils/Duress

Error to refuse choice of evils and duress instructions where defendant presented evidence that he committed crimes to prevent imminent injury to his daughter.

Defendant appeals from a judgment of conviction for first- and second-degree burglary and third-degree theft and assigns error to the trial court’s refusal to instruct the jury on the choice-of-evils and duress defenses. In the light most favorable to defendant, there was sufficient evidence from which the jury could infer that defendant participated in the crimes because his co-defendant’s brother threatened serious harm to defendant’s daughter. Defendant testified that the brother, who had a reputation for being a dangerous man, had threatened that if “I didn’t want anything to happen to my daughter, I would do what [codefendant] told me to do.” Defendant did not have a phone to call his daughter. The arresting officer also testified that defendant asked him to “please find [daughter]” and stated that if she was not home then [codefendant’s brother] has her.” The trial court declined to give the instruction in part because it did not find defendant’s testimony credible. The appellate court reverses, holding that there was sufficient evidence from which that the jury could find that defendant’s commission of the crime was “necessary” to avoid the threatened injury (choice of evils) and that he had been coerced into the commission of the crimes by a threat of imminent unlawful force (duress).

State v. Paul, 289 Or App 408 (2017) (James, J.)

Delinquency

Juvenile Delinquency—Third-degree Assault—Sufficiency of Evidence

Evidence that youth returned to fight and held the victim while another person punched and kicked the victim supported finding youth was within juvenile court’s jurisdiction for acts that, if committed by an adult, would constitute third-degree assault.

Youth confronted the victim at school by yelling at her. The victim pushed youth away, and youth grabbed the victim’s hair and began punching her. Additional parties joined the fight, including youth’s friend A, who pulled the victim the floor and punched and kicked her. Youth briefly left and returned to the fight and held the victim while A punched and kicked her. A teacher broke up the fight a short time later. The victim received treatment for a concussion, neck, and back injuries. Youth was found to be in the jurisdiction of the juvenile court for acts that if committed by an adult would constitute second-degree disorderly conduct and third-degree assault. At the hearing, youth argued that there was insufficient evidence that she caused the victim’s injuries to support the third-degree assault allegation. The court concludes, viewing the evidence in the light most favorable to the state, that there was sufficient evidence for the trial court to find that youth caused physical injury as a principle because youth’s actions were so extensively intertwined with the infliction of physical injury to the victim that her conduct could be found to have produced that injury.

State v. M.M.A., 288 Or App 407 (2017) (Garrett, J.)

Juvenile Delinquency—Sentencing—Conditions of Probation

Juvenile court exceeded its authority in authorizing juvenile department to sanction probation violation with detention.

State v. M.V.L., 288 Or App 845 (2017) (Per Curiam)

Juvenile Dependency—Active Efforts Determination—Appeal

Trial court’s determination that DHS had made active efforts to reunify family as required by Indian Child Welfare Act not appealable where judgments on appeal did not rule on any affirmative requests for relief or otherwise modify rights or duties of the parties.

Dept. of Human Services v. A.M.G., 289 Or App 440 (2017) (Per Curiam)

Juvenile Delinquency—Juvenile Court’s Authority to Modify Disposition

Juvenile court retained authority following termination of jurisdiction to modify delinquency disposition to lift “deferral” of requirement that youth provide a DNA sample because DNA sample requirement is not punishment, was not imposed as a sanction, and juvenile court lacked authority to defer requirement initially.

Youth appeals from an order of a juvenile court modifying youth’s delinquency disposition. ORS 419.610 permits a juvenile court to “modify or set aside any order made by it upon such notice and with such hearing as the court may direct.” Here, in 2004, the juvenile court erroneously “deferred” two conditions, the requirements that youth provide a DNA sample and comply with sex offender registration laws. A decade later, after jurisdiction had been terminated, the trial court modified the delinquency disposition by lifting the deferrals of the two conditions. The court concludes that this case is moot with respect to the requirement that youth register as a sex offender because current statutes require him to register as a sex offender in the absence of a court order to register. With respect to the requirement that he provide a DNA sample, youth argues that as a matter of statutory construction and due process, ORS 419C.610 did not authorize the state to impose additional requirements upon a youth offender after the youth has fully served his disposition and jurisdiction is terminated.

In view of the statute’s text and context and maxims of statutory construction, the court concludes that the juvenile court retained authority to enter the modification order to require the DNA sample, which does not constitute punishment and was not imposed as a sanction.

State v. E.C.P., 289 Or App 569 (2017) (DeHoog, J.)

Dependency

Juvenile Dependency—Jurisdictional Judgment—Evidentiary Bases

Evidence sufficient to establish that grandfather, who had sexually abused daughters, presented risk to male grandchild. Additionally, evidence also sufficient to establish that domestic violence between divorced parents endangered children.

In this consolidated appeal, father appeals judgments asserting jurisdiction over children, C and S, and C appeals the judgment asserting jurisdiction over him. Father asserts, and the state concedes, that DHS failed to prove that his substance abuse interfered with his ability to safely parent the children. He also contends that DHS failed to prove that domestic violence endangered the children at the time of the jurisdictional hearing.

C contends that DHS failed to prove that his paternal grandfather, who has admitted to sexually abusing his own two daughters, was a threat to C’s welfare, which was the basis for the juvenile court’s determination that mother and father were unwilling and unable to protect him from harmful and dangerous circumstances. On that issue, C raises three assignments of error, challenging the admission of expert testimony. The court first concludes that the appeal is not moot notwithstanding that fact that, on the state’s motion, the juvenile court dismissed jurisdiction and wardship of both children because a decision on the issues will still have a practical effect on the parties.

As to C’s assignments of error, the court concludes that (1) the trial court did not plainly error in admitting the social worker’s testimony because it was not plainly unrelated to the facts of the case; (2) the trial court’s purportedly erroneous admission of a DHS caseworker’s testimony explaining why he had concluded that grandfather had sexually abused S was harmless because the trial court did not rely on that testimony; and (3) the evidence was sufficient to establish that grandfather presented a risk to C. The court finally concludes that the evidence was sufficient to support the juvenile court’s determination that the children were at a current risk of serious loss or injury from exposure to domestic violence between parents because parents were likely to reunite.

DHS v. C.T, 288 Or App 593 (2017) (Ortega, P.J.)

Juvenile Dependency—Required Findings—Absence of Findings Not Plain Error

Not plain error for trial court to not make findings in judgment where it is not obvious that hearing was a review hearing; even assuming trial court plainly erred in relying on unsworn testimony, appellate court would not exercise discretion to correct that error.

Mother appeals a juvenile court dependency judgment continuing child’s placement with the Oregon Youth Authority (OYA) and raises three assignments of error. In her first assignment, she asserts that the juvenile court plainly erred in failing to make required findings in its judgment under ORS 419B.449(3). In her second and third assignments, she claims that the court’s decision to deny her motion to return her child to her care and to continue placement in OYA was not supported by sufficient evidence because it was based on unsworn testimony. The court concludes that the absence of findings is not plain error because it is not obvious that the hearing was a review hearing that required findings. It also rejects mother’s second and third assignments of error, reasoning that the record supports the trial court’s findings, and even if the trial court’s reliance on unsworn testimony was plain error, it would not exercise its discretion to correct that error in this case.

DHS v. H.F.E., 288 Or App 609 (2017) (Ortega, P.J.)

Juvenile Dependency—Jurisdiction—Scope of jurisdictional bases

When a jurisdictional judgment (or attached documentation) specifically identifies a potential cause underlying a jurisdictional finding, it is “fairly implied” that the identified cause will be a referent for measuring the parent’s progress.

Father appeals from permanency judgments in which trial court changed permanency plans for two children away from reunification. Father argues that the juvenile court erroneously considered facts extrinsic to its bases for jurisdiction in determining that father had failed to make sufficient progress in ameliorating those bases. DHS removed children B and N from father’s home, and the juvenile court asserted jurisdiction over them based on father’s (1) substance abuse problems, (2) domestic violence problems, and (3) inappropriate discipline of his children. After father completed substance-abuse treatment and a batterer’s treatment program, N was returned to his custody. Six months later, father was charged and arrested for promoting prostitution of his girlfriend; N was removed from his home.

At his permanency hearing two months later, caseworks testified as to B’s and N’s special needs and father’s inability to provide for them. Father argued that the promoting prostitution charges and his children’s special needs were extrinsic to the bases for jurisdiction and should not be considered. The juvenile court changed the permanency plan away from reunification after finding that father had made insufficient progress with respect to domestic violence and inappropriate discipline. The court concludes that when a jurisdictional judgment (or attached documentation) specifically identifies a potential cause underlying a jurisdictional finding, it is “fairly implied” that the identified cause will be a referent for measuring the parent’s progress. Here, the scope of the jurisdictional bases concerning father’s domestic violence includes the potential causes for that issue that are explicitly cited in the case plan. Facts indicating that those causes have not been ameliorated, including father’s pending charges for promoting prostitution, are relevant to the “sufficient cause” injury and are not extrinsic. For similar reasons, facts regarding N’s and B’s special needs are not extrinsic to the “inappropriate discipline” basis for jurisdiction.

DHS v. C.E., 288 Or App 649 (2017) (Garrett, P.J.)

Juvenile Dependency—Juvenile court’s jurisdiction to continue durable guardianship

Juvenile court erred in failing to determine whether it continued to have jurisdiction over child in durable guardianship.

Mother appeals from a juvenile court judgment entered after the court denied her motion to vacate the guardianship and terminate the court’s wardship over mother’s child. Juvenile court asserted jurisdiction over the child due to mother’s substance abuse in 2012. In a 2013 permanency hearing, the plan for reunification with the child was changed to a durable guardianship. In 2016, mother moved to vacate the guardianship and terminate the court’s wardship over the child on the grounds that she had ameliorated her substance abuse issues. By statute, a durable guardianship may continue only if the juvenile court has jurisdiction over the child. Here, the court concludes that the juvenile court erred by failing to determine whether it continued to have jurisdiction over the child. The court vacates and remands to the juvenile court to make that determination.

DHS v. J.C., 289 Or App 19 (2017) (Armstrong, P.J.)

Dependency—Motion to Set Aside Guardianship

In light of the Court of Appeals’ reversal of the underlying permanency judgments, the juvenile court lacked discretion to deny motion to set aside the guardianship judgments.

Mother appeals from juvenile court orders denying her motions to set aside guardianship of her three children. She argues that in light of the appellate court’s decision in DHS v. S.M.H., 283 Or App 295 (2017), which reversed the underlying permanency judgments changing the plan for her children from reunification to adoption, the court was required to grant her motions. While the appeal in S.M.H. was pending, DHS filed petitions for the juvenile court to establish a guardianship and appoint aunt and uncle, who the children had been living with, as legal guardians. Mother filed motions to stay, asserting that she was likely to prevail on appeal, and the trial court denied the motions. At the hearing on DHS’s motions to establish guardianship, mother stipulated to the orders appointing aunt and uncle as guardians with the understanding that she was still appealing the change in the permanency plan from reunification to adoption. After the appellate court reversed the underlying permanency judgments, mother moved to set aside the guardianship orders and requested a new permanency hearing. The juvenile court denied mother’s motions. The court concludes that the juvenile court lacked discretion to deny motion’s motions to set aside the guardianship judgments because, in view of the reversal in S.M.H., there was no permanency plan of guardianship, which is a prerequisite to the establishment of guardianship.

S.H., 289 Or App 88 (2017) (Egan, P.J.)

Juvenile Dependency—Rational Relationship To Basis for Jurisdiction

Juvenile court erred in ordering father to undergo psychological evaluation because Department of Human Services did not allege that father had psychological problems that contributed to the bases for jurisdiction.

Dept. of Human Services v. F.D.B., 289 Or App 633 (2017) (Per Curiam)

Evidence

Evidence—Witness-False-in-Part Instruction

Witness-false-in-part instruction properly given where physical evidence directly contradicts defendant’s trial testimony.

Officers were dispatched to investigate a report that a damaged pickup pulled into a gas station and that two occupants fled on foot. The truck had extensive front-end damage and a missing tire. The officers found defendant and another man walking about a block from the gas station. Defendant appeared visibly intoxicated. Defendant twice told the officers that he had been driving, but later denied driving after being confronted about the damage to the truck. An officer received defendant’s consent to check under defendant’s shirt for injuries and saw an upside down U-shaped abrasion on defendant’s chest, which suggested to the officer that defendant was not wearing a seat belt when he hit the steering wheel. At trial, defendant testified that he had not been driving and explained why he had initially lied to the officers. At the state’s request, and over defendant’s objection, the trial court gave the “witness-false-in-part instruction.” On appeal, defendant argues that the trial court erred in giving the instruction because his trial testimony was not inconsistent with his prior statements. The court concludes that the trial court did not abuse its discretion in giving the witness-false-in-part instruction because the jury could find that defendant consciously testified falsely when he denied driving based on the physical evidence that he had been driving.

State v. Roman, 288 Or App 441 (2017) (James, J.)

Evidence—Remand for OEC 403 balancing

Defendant not limited on remand to arguments made first time in trial court in support of exclusion under OEC 403.

State v. Davis, 288 Or App 451 (2017) (Per Curiam)

Evidence—Relevance—Evidence of Acquittal

Evidence that defendant was acquitted of nondrug charges that had led to his arrest and search, during which methamphetamine was found, relevant at trial for unlawful possession of methamphetamine to dispel potential prejudice of being branded as a criminal.

State v. Langenberg, 288 Or App 454 (2017) (Per Curiam)

Evidence—Remand for OEC 403 balancing

Trial court failed to adequately demonstrate that it admitted video depicting boyfriend prompting children to use racial epithets after consciously engaging in OEC 403 balancing process in manslaughter case.

State v. Alvarado, 288 Or App 752 (2017) (Per Curiam)

Evidence—ORS 136.444—Corroboration of Accomplice Testimony

Evidence insufficient to corroborate accomplice testimony because it did not independently connect defendant to the crime or corroborate the commission of the offense.

Defendant was apprehended and convicted of 17-counts after he and two accomplices were observed burglarizing a uniform supply store. Defendant assigns error to the trial court’s denial of his motion for judgment of acquittal on six counts that concerned two earlier conspiracies, to kidnap a jewelry store employee and to rob a cellular phone store, on the grounds that he was convicted based solely on the testimony of his accomplices without extrinsic evidence connecting him to the crimes.

Under ORS 136.44(1), a person may not be convicted based on an accomplice’s testimony unless it is corroborated by other evidence that tends to connect the defendant with the commission of the offense. Even slight or circumstantial evidence will suffice if it tends to connect the defendant with the crime alleged so long as it is independent of the accomplice testimony and there is independent evidence that the crime actually occurred. With respect to the kidnapping episode, the state argues that the accomplice testimony was corroborated by defendant’s apprehension with the two accomplices during the uniform supply store burglary and various items found in their vehicle (firearms, syringes, thermite, zip ties, and a stolen animal shelter jacket), that were to be used in the kidnapping.

The Court concludes that that evidence is insufficient: defendant’s association with the accomplices was too temporally distant from the kidnapping conspiracy, alleged to have occurred two weeks earlier. The instrumentalities of that conspiracy are also insufficient because the state failed to connect them to the vehicle used in the conspiracy, connect defendant to the vehicle, and because, independent of the accomplice testimony, the items are lawful to possess. Finally, the animal shelter jacket, allegedly stolen as part of the plan for the commission of the burglary did not sufficiently corroborate the accomplice testimony because there was no independent logical connection that linked the animal jacket and the planned kidnapping. With respect to the attempted cellular phone store robbery, the court concludes that it does not need to address whether there was sufficient evidence to connect defendant to that crime because there was no evidence independent from the accomplice testimony that the attempted robbery occurred at all. Specifically, a note listing the cellular phone store as a potential target did not evidence that someone had taken a substantial step towards the attempted robbery.

State v. Riley, 288 Or App 807 (2017) (James, J.)

Evidence—Vouching—Plain Error

Trial court’s failure to sua sponte strike purportedly vouching testimony not plain error because not obvious that statement was offered for its truth.

State v. Deleon, 288 Or App 850 (2017)( (Per Curiam)

Evidence—Prior Bad Acts Evidence—Harmless Error

Admission of prior bad acts evidence harmless in view of trial court’s limiting instruction.

State v. Shinnick, 288 Or App 847 (2017) (Per Curiam)

Evidence—Non-Hearsay—Out-of-court statement identifying defendant as the shooter not statement of identification

Declarant’s out-of-court statements identifying defendant as the shooter not statement of identification under OEC 801(4)(a)(C).

Defendant appeals from a judgment of conviction for second-degree assault and unlawful use of weapon. On appeal, defendant assigns error to the trial court’s admission of out-of-court statements by the victim’s girlfriend stating that defendant had shot the victim. Evidence at trial established that defendant, the victim, and the victim’s girlfriend were friends. One evening, they and defendant’s girlfriend got together in defendant’s camper trailer. There, defendant confronted the victim about Christmas presents that had been taken from a car. The victim’s girlfriend then heard shots and saw that the victim was hurt. She later identified defendant as the shooter in a lineup.

At trial, two officers testified that the victim’s girlfriend identified defendant as the shooter. Defendant objected on hearsay grounds to the first officer’s testimony and did not object to the second officer’s testimony. Under OEC 801(4)(a)(C) exception to the definition of hearsay for out-of-court statements of identification did not apply to officers’ testimony recounting statements of victim’s girlfriend identifying defendant as the shooter. To qualify as non-hearsay, the identification must result from, and not merely follow, the declarant’s perception of the person. Here, the girlfriend’s identification of defendant did not result from perceiving defendant in the line-up; rather, it resulted from her earlier acquaintance with defendant. Because the hearsay statements were not harmless, the court reverses and remands for a new trial.

State v. Hartley, 289 Or App 25 (2017)

Evidence—Expert Testimony—Qualifications of Expert

Witness’s experience working with people with traumatic brain injuries qualified her to testify as an expert as to whether defendant’s behavior was consistent with her observations of people with traumatic brain injuries.

Defendant appeals from a judgment of conviction for driving under the influence of intoxicants (DUII) and assigns error to the trial court’s ruling limiting the testimony of a defense expert, a registered nurse, about defendant’s traumatic brain injury (TBI). Defendant’s theory at trial was that the trooper who arrested him for DUII misinterpreted defendant’s TBI symptoms as signs of intoxication. A video recording of defendant’s performance on the field-sobriety tests was played to the jury. The trial court precluded the defense expert, a registered nurse, from testifying that defendant’s behavior on a field sobriety video was consistent with her observations of patients who have TBI. The defense witness had cared for or supervised the care of approximately 20 patients with TBI over her 10 years as a nurse and she frequently works with and regularly observes people with TBI The court concludes that because the witness’s experience gave her “specialized knowledge” regarding the symptoms and mannerisms of TBI patients, she was qualified to testify whether defendant’s behavior in the video was consistent with the behavior she has observed in TBI patients over the course of her career. Because the trial court’s error in excluding the expert testimony was not harmless, the court reverses for a new trial.

State v. Woodbury, 289 Or App 109 (2017) (DeHoog, J.)

Expert Witnesses—Comment on Credibility

Expert testimony regarding specific deficiencies in interview methodology amounts to a comment on the credibility of interviewed witnesses.

Defendant appeals from a judgment of conviction for multiple sex offenses involving minors. On appeal, defendant asserts that the trial court erred in preventing his expert from testifying that a detective’s interviews with child witnesses did not meet established protocols for interviewing children who have reported sexual abuse. Defendant also claims that the trial court erred in prohibiting defendant from calling two surrebuttal witnesses who would have testified as to a rebuttal witness’s character for truthfulness.

At trial, defendant sought to admit expert testimony regarding a detective’s failure to follow established methodologies for interviewing two victims. The trial court permitted defendant to present general evidence about how interviews should be conducted, but prevented the expert from testifying as to deficiencies of the particular interviews of the child witnesses on the grounds that such testimony would amount to a comment on the credibility of the witnesses. The court affirms the trial court’s ruling, reasoning that expert testimony regarding how the interviews were deficient would suggest to the jury that the witnesses were not telling the truth and would not have provided the jury information sufficiently beyond the ordinary experience of a lay finder of fact such that it would help the jury make an informed decision about credibility. The court also rejects defendant’s second assignment of error because defendant’s offer of proof was insufficient to show that the trial court erred in excluding the evidence and that the evidence was harmful.

State v. Black, 289 Or Ap 256 (2017) (Shorr, J.)

Evidence—Prior Bad Acts—Hostile Motive

Evidence that defendant had threatened and assaulted former girlfriends admissible to show defendant’s hostile motive in altercation with his girlfriend.

Defendant appeals from a judgment of conviction of six crimes arising from a physical altercation with his girlfriend. He assigns error to the trial court’s admission of evidence that he had threatened and assaulted two former girlfriends. At trial, the trial court ruled that the prior bad acts evidence was admissible to prove defendant’s hostile motive and intent. Defendant argues that the trial court erred in admitting the prior bad acts as evidence of hostile motive because prior acts can show a hostile relationship exists only when the misconduct and the charged crime involve the same victim. Defendant also argues that the prior acts was not similar enough to the charged conduct to be admissible as evidence of intent.

The court concludes that the prior bad acts were admissible as evidence of defendant’s hostile motive. Specifically, defendant’s conduct against his former girlfriends was admissible to show that defendant tended to act violently against his girlfriends. Because defendant only requested OEC 403 balancing on the uncharged misconduct evidence at trial, his argument that the trial court erred in admitting the disputed evidence, for which defendant was convicted, is unpreserved. Affirmed.

State v. Rice, 289 Or App 282 (2017) (Hadlock, C.J.)

Evidence—Vouching—Plain Error

Witness’s testimony that she “totally believed” victim not plain error because plausible that defendant strategically chose not to object.

Defendant appeals from a judgment for first-degree sexual abuse and assigns error to the trial court’s failure to sua sponte strike a witness’s testimony that she “totally believed” the victim. Evidence at trial established that defendant moved in with B, her mother, and brother, when B was seven to eight years old. B testified that defendant touched her vaginal area over her clothes in 2012, when she was 13. B shared that information with her friend, D, and later, with D’s mother, Strawn. Strawn testified that she did not immediately share B’s report because B asked her not to but she “totally believed” B’s story. B also later told her mother, who did not confront defendant or disclose the incident.

Defendant’s theory at trial was that B fabricated the allegations. In support of that defense, defendant tried to highlight the inconsistencies in B’s account of the incident and Strawn and B’s mother’s failures to report the incident, suggesting that they did not report the abuse because they did not believe B.

The court concludes that although Strawn’s testimony was impermissible vouching, it is not plain error because it is plausible that defendant made the strategic choice not to object to the error. The court also concludes that even if the error were plain, it would not exercise its discretion to correct the error because it was a bench trial, Strawn was not an expert witness, and the statement was made in passing.

Judge Duncan dissents, contending that there is no “plausible” reason, given defendant’s theory of the case, for his failure to object and that the court should exercise its discretion to correct the error, as it has in other plain error vouching cases.

State v. Cone, 289 Or App 391 (2017) (Garrett, J.)

Evidence—Jury Instructions—Less Satisfactory Evidence

Trial court did not error in refusing to give less satisfactory evidence instruction where party failed to demonstrate that video footage was stronger evidence than the other evidence presented by the state.

Defendant appeals from a judgment of conviction for unlawful use of a vehicle and first-degree theft by receiving, and assigns error to the trial court’s failure to give the less satisfactory evidence instruction. Evidence at trial established that defendant sold a trailer to a scrap metal recycling center. Defendant signed a receipt, and the recycling center copied defendant’s driver’s license as part of that transaction. The recycling center also made a video recording of defendant driving the trailer over a scale used to weigh scrap metal. Later, the owner of the recycling center showed that video to an officer investigating theft of the trailer. At trial, the owner’s wife testified that she provided a copy of the video to the officer. The owner and his wife also testified that they knew defendant because they had purchased scrap metal from him on several prior occasions.

Defendant requested the less satisfactory evidence instruction because the state failed to produce the video at trial. A trial court abuses its discretion if it refuses to give the less satisfactory evidence instruction where the party has shown that there is other evidence that is reasonably available on a fact in issue and the jury could conclude that the missing evidence is stronger and more satisfactory than the evidence offered. The court concludes that, viewing the record in the light most favorable to the party requesting the instruction, defendant established that the video footage was reasonably available to the state. But the court holds that defendant failed to establish that the video footage was stronger evidence than defendant’s signed receipt, a photocopy of his driver’s license, and the two witnesses who identified defendant as the person who brought the trailer to the scrap yard.

State v. West, 289 Or App 415 (2017) (James, J.)

Evidence—OEC 403—Record of Balancing

In totality of circumstances, record adequate to show that trial court conducted OEC 403 balancing and permit meaningful appellate review.

Defendant appeals from a judgment of conviction for unlawful possession of methamphetamine and assigns error to the trial court’s admission of evidence that defendant possessed a syringe absent a record demonstrating OEC 403 balancing. The state argues that defendant failed to preserve his contention. The court concludes that defendant’s argument is preserved for appeal: a request that a court balance the probative value of evidence against its unfair prejudice preserves a contention that the trial court failed to create a record demonstrating 403 balancing. However, in the totality of the circumstances, the record demonstrates that the court conducted the required balancing and is sufficient for meaningful appellate review.

State v. Ydrogo, 289 Or App 488 (2017) (Lagesen, J.)

Parole/PCR/Habeas

Parole—Evidence—Mitigating Evidence Relevant in Juvenile Offender Parole-Release-Date Hearing

Mitigating evidence related to petitioner’s conduct in prison and other circumstances in the year’s following his crimes relevant in hearing to set juvenile offender’s parole-release date.

In 1994, petitioner/defendant kidnapped, robbed, and murdered two people. He was 16-years old, and was waived into and tried in adult court, where he received consecutive life sentences for aggravated murder and an additional 280 months consecutive imprisonment on his robbery and kidnapping convictions. Following the Supreme Court’s decision in State ex rel Engweiler v. Felton, 350 Or 592 (2011), the board conducted a prison-term hearing for petitioner in October 2012 and set a parole-release date of April 19, 2042, after which petitioner would begin serving his 280 month sentence for his kidnapping and robbery convictions. Petitioner sought administrative review, arguing, among other things that the board had erred in precluding petitioner from introducing mitigating evidence related to events that occurred during the years since he murdered his victims and that it erred in using his uncounseled juvenile adjudications in calculating his prison term. The court holds that that under Calderon-Pacheco v. BPPPS, 309 Or 454 (1990), the board erred in excluding petitioner’s rehabilitation evidence under its own rules. The court does not reach petitioner’s assignment of error as to the uncounseled juvenile adjudications, but instructs the board to address the allocation of the burden of proof when readdressing that issue on remand.

Cunio v. BPPPS, 288 Or App 459 (2017) (Hadlock, C.J.)

PCR—Contents of Judgment—Admissibility of evidence on retrial not a proper subject of PCR judgment

PCR court did not err in failing to include provision limiting evidence state may offer on retrial in judgment granting post-conviction relief, Rather, admissibility of evidence issues must be raised with trial court.

The Court of Appeals concluded that petitioner/defendant was entitled to post-conviction relief on the grounds that his trial counsel was constitutionally deficient in failing to seek to exclude statements and testimony from a co-conspirator, allegedly obtained in violation of an immunity agreement with petitioner. On remand from that decision, petitioner sought to have the PCR court include in its judgment a provision prohibiting the co-conspirator from testifying and excluding his earlier trial testimony, any out-of-court statements the co-conspirator made following the immunity agreement, and any evidence that derived from the immunity agreement. The PCR court’s judgment did not restrict the evidence that could be admitted against petitioner on retrial, and petitioner appealed. The court affirms, reasoning that the admissibility of evidence on retrial is not a proper subject of post-conviction relief and to the extent that the doctrines of issue and claim preclusion and law of the case bar admission of that evidence on retrial, they are applicable upon entry of the PCR judgment, not in the judgment granting PCR relief. Petitioner thus must raise those issues with the trial court.

Oatney v. Kelly, 288 Or App 550 (2017) (Armstrong, P.J.)

PCR—PCR judgment—Remanded for PCR court to fashion relief that will cure petitioner’s actual prejudice

PCR judgment granting petitioner limited relief error where remedy in judgment fails to cure petitioner’s actual prejudice.

Petitioner/defendant appeals from a PCR judgment granting him limited relief on some of his claims by ordering that the judgment revoking his probation be amended to allow for Alternative Incarceration Programs (AIP). Petitioner pleaded guilty and received probation. He agreed that if his sentence were revoked he would receive 72 months’ imprisonment but would be eligible for AIP. Petitioner is not eligible for AIP based his crime of conviction, second-degree robbery. Petitioner later violated the terms of his probation and was revoked. He received 72 months’ imprisonment without eligibility for AIP. Petitioner sought post-conviction relief, contending that he received inadequate assistance of counsel at the revocation hearing, the revocation judgment breached the plea agreement, and that his plea was not knowing and intelligent. The post-conviction relief court amended the revocation judgment to make petitioner eligible for AIP. On appeal, petitioner alleges that the post-conviction court erred because he is ineligible for AIP and the Department of Corrections will not give the amended revocation judgment effect and asserts that the proper relief is to allow him to withdraw his plea. The Court concludes that the appropriate relief is not to reverse petitioner’s underlying convictions and allow him to withdraw his plea but to remand to the post-conviction court to fashion a remedy that cures petitioner’s actual prejudice.

Lujan v. Myrick, 288 Or App 763 (2017) (Ortega, P.J.)

Post-Conviction Relief—Inadequate Investigation of Penalty-Phase Mitigation Evidence

Trial counsel’s decision to forgo presenting mitigation evidence to the jury regarding the horrendous circumstances of defendant's childhood during penalty phase absent reasonable investigation into those circumstances fell below professional standards and prejudiced petitioner.

Petitioner/defendant, who was convicted of aggravated murder for killing a 12-year old girl and received a death sentence, petitioned for post-conviction relief claiming that he received inadequate assistance of trial counsel during the guilt- and penalty-phases of his trial. Specifically, petitioner claimed that trial counsel failed to adequately prepare to cross-examine the state’s pathologist, failed to retain and present evidence from a forensic pathologist, and did not timely retain a forensic scientist or call the forensic scientist at trial. Petitioner also claimed that he received inadequate assistance of counsel during the penalty phase because his trial counsel did not make a reasonable strategic choice to focus solely on the future dangerousness question because he did not adequately investigate potential mitigating evidence.

The PCR court denied relief as to petitioner’s guilt-phase claims, but granted relief as to his penalty-phase claim that his trial counsel’s decision to forgo presenting mitigating evidence to the jury was not supported by reasonable investigation and prejudiced petitioner. Petitioner appeals and superintendent cross-appeals from that judgment.

The court concludes that the PCR court did not err in concluding that trial counsel exercised reasonable professional skill and judgment in failing to hire a forensic pathologist where trial counsel had no reason to doubt the state’s pathologist’s expertise or credentials, his testimony was not controversial, and undermining it was not central to the defense theory. The evidentiary points that petitioner claims trial counsel failed to raise were addressed in other ways or were not significant enough that trial counsel was compelled to raise them. The court also concludes that the PCR court did not err in determining that trial counsel’s decisions with respect to the hiring and calling of the forensic scientist were adequate where petitioner failed to establish that the forensic scientist was hampered in her ability to adequately prepare for petitioner’s defense and the main points she would have testified to were addressed in other ways at trial.

The court further concludes that the PCR court did not err in concluding that trial counsel performed inadequately during the penalty phase. Petitioner presented a vast amount of evidence at his PCR trial regarding the horrendous circumstances of his childhood, which was available or reasonably discoverable at the time of his trial. Yet, trial counsel elected to forego presenting mitigating evidence having uncovered virtually no evidence of petitioner’s childhood and based on limited interviews of petitioner, two family members, and a review of the state’s discovery. Trial counsel’s decision to forego presenting mitigation evidence to the jury absent reasonable investigation into those circumstances fell below professional standards. That failure prejudiced petitioner because the mitigating evidence could have helped to explain petitioner’s actions and created a narrative that would have counterbalanced the state’s evidence of petitioner’s history of criminality and sexual assaults on women and children, which had gone unchallenged.

Sparks v. Premo, 289 Or App 159 (2017) (Ortega, P.J.)

Post-Conviction Relief—Trial counsel’s failure to prevent or remedy prosecutor’s impermissible cross-examination prejudiced petitioner

Prosecutor lacked a reasonable basis for cross-examining witnesses about petitioner’s purported prior bad acts. Post-conviction court erred in concluding that jury instructions, petitioner’s conduct, and evidence on rebuttal eliminated prejudice caused by trial counsel’s failure to prevent or remedy prosecutor’s impermissible cross-examination.

Petitioner/defendant, who was convicted of one count of first-degree sexual abuse, appeals from a judgment denying him post-conviction relief. On appeal, petitioner assigns error to the PCR court’s determination that, although trial counsel had performed inadequately in failing to prepare for and object to questions that the prosecutor asked of two defense character witnesses at trial suggesting that petitioner had an inappropriate relationship with an underage girl, petitioner was not prejudiced by those errors. In concluding that no prejudice occurred, the PCR court pointed to the trial court’s instructions to the jury regarding the questioning, petitioner’s conduct, which provided reasons for the jury to question his credibility, and the source of the hearsay statements, who testified to those statements later during trial.

The court concludes that prosecutor lacked a reasonable basis for his questions and that those questions prejudiced petitioner. The court also concludes that trial counsel’s errors prejudiced petitioner. Because the prosecutor’s questions were improper for any purpose, the only correct instruction would be one that told the jury not to consider the questions at all. But the trial court’s actual limiting instruction was ambiguous with respect to whether the jury could consider the conduct implied in the questions as affirmative evidence of petitioner’s bad character. The fact that the same evidence was presented during rebuttal also did not alleviate the prejudice because had counsel not preformed inadequately, the jury would never had heard the rebuttal testimony or the appellate court would have held that the trial court erred in allowing it and determined that the error harmed petitioner. Consequently, the court holds that the PCR court erred in denying petitioner post-conviction relief.

Holbrook v. Amsberry, 289 Or App 226 (2017) (DeHoog, J.)

PCR—Inadequate Assistance of Counsel—Inadequate Investigation

Trial counsel rendered constitutionally inadequate representation by failing to conduct adequate investigation in preparation for dangerous-offender sentencing proceeding, which prejudiced petitioner.

The post-conviction court granted petitioner/defendant post-conviction relief on grounds that his defense counsel had rendered constitutionally inadequate representation during a presentence hearing concerning whether petitioner was a dangerous offender who suffered from "severe personality disorder," ORS 161.725(1)(s). Specifically, the post-conviction court concluded that defense counsel provided inadequate assistance by failing to (1) reasonably investigate and consult with an expert before determining that cross-examination of the state's psychiatrist alone was appropriate and (2) present testimony from a defense expert to rebut the psychiatrist's testimony that petitioner had an antisocial personality disorder.

The post-conviction court vacated petitioner's dangerous-offender sentence and remanded the case for resentencing. The Court of Appeals affirmed on the grounds that defense counsel was inadequate in failing to investigate and consult with an expert. On review, the state contends that the Court of Appeals erred because (1) defense counsel's tactical decision to rely on cross-examination without consulting an expert was reasonable and (2) petitioner did not show it was "reasonably probable" that he suffered prejudice. The Court affirms the post-conviction court's and Court of Appeals' conclusions that defense counsel failed to conduct an adequate investigation.

Although defense counsel knew that the state's psychiatrist would rely on petitioner's juvenile history to conclude that petitioner had a conduct disorder before age 15 and that the expert's diagnosis of petitioner as having an antisocial personality disorder was insufficiently supported by the information contained in the report, he did not decide to investigate petitioner's background to confirm or dispel the accuracy of that data or complete the record. That was inadequate in view of the markedly enhanced sentence petitioner faced during dangerous-offender sentencing proceeding. In view of the nature and complexity of the hearing, defense counsel's decision not to consult an expert concerning the state's diagnosis was also not a reasonable exercise of professional skill and judgment because the decision was not an informed one. The court also concludes that defense counsel's errors prejudiced him because, given the uses to which counsel could have put the information contained in a defense report, there is more than a mere possibility that that the jury could have rejected the state's contention that petitioner suffered from a severe personality disorder.

Richardson v. Belleque, 362 Or 236 (2017) (Nakamoto, J.)

PCR—Meritless Petition—Appeal

Judgment dismissing meritless petition not appealable.

Petitioner/defendant appeals a judgment dismissing his petition for post-conviction relief with prejudice. Appointed counsel filed an affidavit averring that the petition could not be construed to state a ground for relief or be amended to do so. After a hearing on the sufficiency of the petition, the post-conviction court entered a general judgment of dismissal with prejudice. The court concludes that the general judgment is a “judgment dismissing a meritless petition” and, hence, is not appealable.

Gilderson v. Taylor, 289 Or App 496 (2017) (Lagesen, P.J.)

Search and Seizure

Motion to Suppress—Warrantless Searches—Abandonment of Privacy Right

Defendant abandoned his privacy interest in a camera disguised as a charging device by purposefully leaving it in a public bathroom, in plain view, where any person visiting the bathroom could inspect it, for several days.

A Starbucks employee found a small, charger-like device that he believed to be a camera plugged-in across from the toilet in the restroom and called the police. An officer responded and took and lodged the device at the department as “found property.” A week later, a captain reviewing the department’s calls from the week prior, retrieved the device and determined that it was, in fact, a camera. A detective followed up with the Starbucks employees and learned that a man had come in and attempted to retrieve a charger. When the employees told him that it had been turned over to the police, the man appeared surprised and exited the store. Using surveillance footage from Starbucks and footage from the device, the detective obtained a search warrant for defendant’s two residences. Relying on the state and federal constitutions, defendant moved to suppress the warrantless search of the device and subsequent searches of his homes. The trial court denied suppression, ruling that defendant abandoned his privacy right to the camera when he left it in the Starbucks restroom. The court holds that defendant abandoned his privacy interest in the camera under the state and federal constitutions because he purposefully left the property in a restroom available to the general public, in plain view, where any person visiting the bathroom could have inspected it, and left it there for several days.

State v. Ipsen, 288 Or App 395 (2017) (A157082) (Tookey, J.)

Motion to Suppress—Issue Preclusion—Relitigating suppression in another jurisdiction

Issue preclusion applies in motion to suppress hearings.

Following the discovery and search of a hidden camera found in a Starbucks restroom, the state charged defendant with multiple counts of second-degree invasions of personal privacy in both Washington and Deschutes counties. In Washington County, defendant was convicted in a stipulated facts trial following the trial court’s denial of his suppression motion. Defendant filed a nearly identical suppression motion in Deschutes County. The Deschutes County court denied the motion, concluding that it was precluded from determining the merits because it had already been heard and decided by the Washington County court. On appeal, defendant argues that the Deschutes County court erred in ruling that issue preclusion barred defendant from relitigating suppression because application of the doctrine infringes in defendant’s right to a jury trial and the decision on the motion to suppress is distinct from and not essential to a decision as to defendant’s guilt. The court rejects both of those arguments. The trial court’s reliance on the doctrine of issue preclusion did not infringe on defendant’s right to a jury trial because a suppression court does not decide facts necessary for conviction, but resolves preliminary questions as to the admissibility of evidence. The doctrine was applicable in the Deschutes County hearing because the denial of defendant’s motion to suppress was necessary to defendant’s judgment of conviction in Washington County and, hence, was essential to a final determination on the merits in that case.

State v. Ipsen, 288 Or App 402 (2017) (A157904) (Tookey, J.)

Motion to Suppress—Right Against Self-Incrimination—Invocation and Waiver

Defendant unequivocally invoked his right against self-incrimination when he said, “I’m done talking.” Defendant’s later statements were not voluntary because they were prompted, there was no material change in circumstances between defendant’s invocation and the questioning, and defendant remained in custody throughout the encounter. Police officers were dispatched to department store parking lot after two women were observed leaving the store with merchandise they had not paid for. When two loss-prevention officers and a mall security guard attempted to stop the women, defendant intervened. The police officers stopped defendant in the mall parking lot. The officers removed defendant from his vehicle, handcuffed and read Miranda to him, and placed him in the back of a patrol car. On the way to the jail, an officer questioned defendant about his ownership of the car, and defendant said, “I’m done talking.” The officer continued to question defendant. During booking at the jail, the officer handed defendant a charge list, and defendant responded, “How the hell? Fucking robbery, really.” Thereafter, the officer and defendant had an exchange, during which defendant gave an account of the events. During a suppression hearing, defendant argued that he had invoked his right to silence when he said “I’m done talking.” The state agreed, but argued that defendant reinitiated contact when he said, “How the hell? Fucking robbery, really?” The trial court agreed with the state and denied suppression. The state offered the exchange that occurred at the jail into evidence at trial. The court concludes that defendant unequivocally invoked his right against self-incrimination when he said, “I’m done talking.” Additionally, the court concludes that defendant did not voluntarily waive that right; defendant’s statements were not unprompted, there was no material change in circumstances between his invocation and the purported waiver, and defendant remained in custody throughout the encounter. Because the trial court’s admission of defendant’s statements was not harmless, reversal is required.

State v. Schrepfer, 288 Or App 429 (2017) (James, J.)

Motion to Suppress—Preservation—Sufficiency of one-page motion

Motion to Suppress—Warrantless Seizure—Officers lacked probable cause to arrest defendant after officer safety concerns dissipated.

Defense counsel’s one page suppression motion and closing arguments sufficiently preserved issue in view of brief, straight forward nature of encounter. Officers lacked probable cause to arrest defendant after officer safety concerns dissipated.

Officers responding to a possible gang-related fight or shooting encountered defendant walking briskly and talking on his cell phone about four blocks away from the reported disturbance. One officer announced “Sheriff’s Office,” in a loud, commanding voice and pointed a flashlight at defendant. Defendant “bladed his stance.” Believing that defendant may be reaching for a weapon, the officers drew their firearms and ordered defendant to raise and hands and drop to his knees. Defendant complied. The officers handcuffed and frisked defendant for weapons, but they did not find any. Defendant remained handcuffed. A later consent search revealed evidence that was later used to convict defendant of drug crimes. Defendant moved to suppress that evidence prior to trial in a one-page suppression motion and supplemental memorandum, which averred, “The defendant as subject to a search and seizure without a warrant. Warrantless searches and seizures are per se unreasonable and the state has the burden of proving otherwise. State v. Miller, 269 Or 328 (1974).” At the subsequent suppression hearing, the state argued that defendant was in custody and that the officers had reasonable suspicion to stop defendant. Defendant countered that the officers lacked reasonable suspicion to stop him, and that he was unlawfully arrested after officer safety concerns dissipated and without probable cause. The trial court denied suppression.

On appeal, the state argues that defendant failed to preserve his argument that he was arrested without probable cause. The court concludes that defendant sufficiently preserved the issue because, in view of the brief, straight forward events, defendant’s motion put the state on notice that he was challenging the warrantless seizure and search by the officers. Further, defendant responded to the state’s arguments by contending that the state had failed to show that probable cause supported his arrest. On the merits, the court holds that the trial court erred in denying suppression: regardless of whether the officers had reasonable suspicion to stop and frisk defendant, neither probable cause nor officer safety concerns justified defendant’s arrest after the frisk revealed that he was unarmed.

State v. Sepulveda, 288 Or App 632 (2017) (Tookey, J.)

Motion to Suppress—Warrantless Search and Seizure—Officer Safety, Voluntary Consent, Emergency-Aid, and School Safety Exceptions

Seizure and search of defendant, who had arrived to scene of reported school shooting to check on sister, not justified under by officer safety, voluntary consent, emergency aid, or the school safety exceptions to the warrant requirement.

Defendant heard that a shooting had occurred at his sister’s high school and rushed to the school. He tucked a handgun into his pants and concealed it under his sweatshirt. The school was being evacuated when he arrived. An officer supervising patdown areas intended to insure that the shooter or accomplice did not escape by blending in with the evacuees, spotted defendant standing to the side and approached him. Defendant said that he did not know where to go. The officer, concerned that defendant had been involved in the shooting, escorted him to a patdown area, told defendant to put his hands behind his head, lifted defendant’s sweatshirt, and found the handgun. Defendant was charged with unlawful possession of a firearm. The court concludes that the warrantless stop and seizure of defendant was not justified by officer safety, voluntary consent, emergency aid, or the school safety exceptions. Defendant's “suspicious” conduct of looking away after making eye contact with the officer and nervousness did not support an objectively reasonable suspicion that defendant presented a threat to officer safety. Defendant did not voluntary consent to the search by arriving at a school where there would be a significant police presence and by acquiescing to the officer’s orders. The emergency aid exception—which is about rendering aid—is inapplicable to the circumstances in this case. Finally, officer’s general concern that defendant could have been involved in the shooting was insufficient to establish a reasonable suspicion, based on credible information and specific and articulable facts, required to justify seizure and search under the school safety exception.

State v. Powell, 288 Or App 660 (2017) (Shorr, J.)

Motion to Suppress—Probable Cause of Traffic Violation—Failure to Drive Within a Lane

Officer had probable cause to stop defendant for failing to drive within a lane when defendant momentarily straddled lane line when her lane split from one lane into two lanes.

Defendant was driving down a road when her lane split into two lanes. Defendant briefly “straddled” the new lane before moving fully into the left lane. An officer stopped for violating, ORS 811.370, which requires a driver to operate a vehicle as nearly as practicable within a single lane. Evidence obtained during that stop led to evidence that defendant was driving under the influence of intoxicants. ORS 811.370 requires a driver to operate his or her vehicle entirely within a single lane unless (1) something (like a road hazard) makes it impracticable to do so or (2) the driver is moving from one lane to another and first makes certain that the movement can be made safely. Here, the officer had probable cause to stop defendant because nothing made it impracticable for her to stay within her lane when she completed the movement into the new left lane. The fact that defendant only momentarily crossed the lane marker is irrelevant.

State v. Husk, 288 Or App 737 (2017) (Aoyagi, J.)

Motion to Suppress—Warrantless Searches—Record insufficient to establish that blood alcohol dissipation constituted an exigent circumstance

State failed to prove that exigent circumstances justified warrantless search for blood-alcohol evidence where record contains no evidence as to rate alcohol dissipates from blood.

While looking for a car involved in a driving-related offense, an officer made observations from outside defendant’s fenced and gated property that gave him probable cause to believe that defendant had committed driving under the influence of intoxicants (DUII). The officer entered the property. He believed it would take hours to get a warrant and knew that alcohol dissipates from the blood. To establish its burden of proving the existence of exigent circumstances, the state was required to develop a record that would permit an assessment of whether, at the time he entered the property, the officer believed that the blood-alcohol evidence was at risk of complete dissipation in the time it would take to get a warrant. Because the record does not include any evidence of the amount of time that the officer reasonably believed it would take for the evidence to be lost, the trial court did not error in concluding that the state failed to prove the existence of an exigency.

State v. Perrott, 288 Or App 837 (2017) (Duncan, J.)

Motion to Suppress—Warrantless Search—Scope of Search Incident to Arrest Exception

Search of defendant’s Jeep for two concealed guns lawful incident to defendant’s arrest for carrying a third concealed handgun.

Defendant appeals from a judgment of conviction for three counts of unlawful possession of a firearm and assigns error to the trial court’s denial of his motion to suppress evidence. An officer had initiated a traffic stop after observing defendant speeding. The officer saw defendant “doing a lot of motion,” before coming to a stop. After defendant’s Jeep came to a stop, defendant exited, against the officer’s repeated directions to stay in the car. The officer quickly detained defendant against the Jeep. The officer saw a machete through the window and found pistol magazines, an empty holster, and two knives on defendant. The officer asked defendant what was going on, and defendant said he had “an open carry going on.” The officer asked defendant if he had a permit, and defendant said no. At that point, the officer believed that defendant was in possession of an unlawfully concealed firearm. The officer asked defendant where the gun was, and defendant said nowhere and then in the car. After being handcuffed, defendant told the officer that there were two more guns in the Jeep. The officer asked about the location of the guns and then administered Miranda warnings.

Before trial, defendant moved to suppress. The trial court suppressed defendant’s statements after he was handcuffed, but not the guns on the basis that they were found in a lawful search incident to defendant’s arrest for carrying a concealed weapon. On appeal, the court concludes that the search for the two additional handguns were lawfully discovered incident to defendant’s arrest for carrying a concealed weapon. Under State v. Anfield, 313 Or 554 (2012), the officer’s search of defendant’s Jeep was permissible incident to his arrest for unlawful possession of a firearm even though the officer was searching for evidence of a new crime, not further evidence of defendant’s unlawful act of possession.

State v. Bladorn, 289 Or App 1 (2017) (Hadlock, C. J.)

Motion to Suppress—Attenuation—Preservation

State failed to preserve argument that evidence discovered during unlawful extension of a traffic stop was attenuated from that illegality.

This is a consolidated appeal on remand from Oregon Supreme Court for reconsideration in light of State v. Unger, 356 Or 59 (2014). In its earlier decision, the Court of Appeals reversed and remanded the trial court’s judgments, holding that the trial court had erred in denying defendant’s motion to suppress evidence obtained during a warrantless search of a vehicle in which defendant had been a passenger. Evidence presented at the suppression hearing established that an officer stopped the Jeep in which defendant was a passenger because the brake lights were not working and because defendant was not wearing a seat belt. Defendant told the officer he was on parole for armed robbery. The officer obtained the identifications of the defendant and the driver, ran a records check, and requested backup. The officer retained the identifications and requested consent to search the Jeep, which the driver gave. The officer found drugs and scales during that search, which led to the state charging defendant with possession of methamphetamine.

Defendant challenged the search in the trial court, arguing that the officer unlawfully extended the stop when he asked for consent to search instead of proceeding with the traffic investigation. In response, the state argued that defendant did not have a protected privacy interest in the Jeep and, alternatively, that the officer would have discovered the evidence even if defendant had not been unlawfully detained. The trial court ruled that the officer had unlawfully extended the stop by requesting consent to search, but denied suppression on the ground that defendant did not have a protected privacy interest in the Jeep.

The parties essentially reiterated their arguments on appeal. The Court of Appeals reversed and remanded, holding that defendant had a protected privacy interest in the Jeep and that the officer unlawfully seized defendant when he ceased processing the traffic violation and requested consent to search and that the state had failed to establish that the evidence would have been inevitably discovered during the course of a lawful search based on the driver’s consent. The Court also held that the state had failed to prove that the evidence was attenuated from the unlawful detention. The state petitioned for review, and the Supreme Court vacated the court’s decision and remanded for reconsideration in light of Unger. On remand, the court concludes that it had unnecessarily held that the state had failed to prove attenuation because the state never argued attenuation in the trial court or on appeal. Thus, in view of the court’s earlier holdings that defendant had a protected privacy in the Jeep and the state failed to prove that the evidence would have been inevitably discovered, the court reverses and remands.

State v. Knapp, 289 Or App 139 (2017) (Duncan, J.)

Motion to Suppress—Preservation

When defendant moved to suppress all statements he made during an encounter with police, and trial court’s ruling only addressed suppression of defendant’s post-Miranda statements, defendant not required to again request suppression of pre-Miranda statements to preserve that issue for appeal.

State v. Schmidtke, 362 Or 203 (2017) (Per Curiam)

Motion to Suppress—Warrantless Search—Automobile Exception

Automobile exception justifies warrantless search of vehicle where officers stop vehicle to execute felony warrant and develop probable cause to search during lawful stop.

Defendant appeals from a judgment of conviction for unlawful delivery of heroin, unlawful possession of heroin, and unlawful possession of methamphetamine, and assigns error to the trial court’s denial of his motion to suppress evidence found during a warrantless search of the trunk of his car. Police initiated a stop of defendant, who was the subject of a felony arrest warrant, while defendant was driving. The officers discovered that defendant had a suspended license and decided to impound the car. Pursuant to department policy, the officers inventoried the vehicle and discovered a cigarette case containing drug paraphernalia and heroin, electronic scales, and air fresheners and dryer sheets stuffed behind the car’s air vents. Subsequent searches of bags in the trunk revealed methamphetamine, heroin, pills, cash, an additional scale, and a glass pipe with residue.

Defendant raised several challenges to the search, and the trial court denied the motion, ruling, among other things, that the search was lawful under the automobile exception. On appeal, defendant argues that the automobile exception did not apply because the car was not mobile when the officers encountered the vehicle in connection with the investigation of a crime. Specifically, defendant asserts that the officers stopped the vehicle because of the arrest warrant and developed probable cause to believe that the car contained evidence of a crime when the car was no longer mobile. The appellate concludes that the automobile exception justified the warrantless search because defendant’s car was mobile when officers encountered it in connection with defendant’s felony arrest warrant and, during a lawful stop, developed probable cause to search the trunk of the car.

State v. Campbell, 289 Or App 442 (2017) (Hadlock, C.J.)

Custodial Interrogation—Right to Counsel—Invocation & Waiver

Defendant’s invocation was, at the very least, equivocal, detectives impermissibly failed to clarify defendant’s intent, and defendant’s subsequent responses did not voluntarily reinitiate conversation.

Defendant appeals from a judgment of conviction for first-degree manslaughter with a firearm and assigns error to the trial court’s denial of his motion to suppress statements made following his invocation of the right to counsel. Detectives interviewed defendant following his arrest for murder. During the interview, defendant said, “Well can I, I, I, really don’t wanna say too much * * * I would rather have my lawyer with me but,” at which point one detective said that was “completely [his] right.” After six seconds of silence, the detective said, “[I]f that’s the way you wanna go with it then that’s the way we play it. We came here to try to get your side of it though because we believe that there’s more to it.” Afterwards, defendant made incriminating statements, including that the shooting was an accident.

The court concludes that defendant’s invocation was, at the very least, equivocal and that the detective’s statement, which parroted that defendant had a right to invoke, did not sufficiently clarify defendant’s invocation. Rather, the detective impermissibly continued the interrogation without a break in time or change in circumstances to allow for a waiver of a previously invoked right. Finally, the court concludes that the trial court’s error in denying suppression was not harmless.

State v. Hickman, 289 Or App 602 (2017) (James, J.)

Self-Incrimination

Custodial Interrogation/Miranda—Compelling Circumstances

Detective’s statements that he had probable cause to obtain a warrant for defendant’s arrest and that he intended to arrest defendant if she did not cooperate in questioning created compelling circumstances.

Detectives went to defendant’s home to discuss recent thefts at a Safeway store. Both detectives were in uniform, wore badges, and drove marked patrol vehicles. When no one answered the door, the detectives called several times. When they finally spoke over the phone, defendant told the detectives that she did not want to speak with them because she was naked and sick. The detective who spoke to her gave defendant two options: if she spoke to him at her door, he would issue her a citation; if she refused, he would obtain a warrant for her arrest. Defendant agreed to speak to the detectives at her doorway. After repeatedly denying involvement in the thefts and being chided for her denials, the detective told her that defendant that she was under arrest. At that point, defendant said, “Fine, I’ll admit guilt.” The trial court reasoned that Miranda warnings were not required because defendant was neither in custody nor under compelling circumstances and because she did not admit guilt in response to a question. The Court concludes that the circumstances were compelling in light of the amount of pressure exerted on defendant during the interview, specifically the detective’s statements that he had probable cause to obtain a warrant for her arrest and indicating his intent to arrest her if she did not cooperate. Because defendant’s admissions derived from the constitutional violation and were not harmless, the trial court erred in denying suppression.

State v. Esquivel, 288 Or App 755 (2017) (Ortega, P.J.)

Motion to Suppress—Warrantless Search—Inventory Exception

Inventory policy permitting opening of closed containers “designed” for holding “valuables” permitted warrantless search of small, black, nylon case apparently designed for holding a small computer hard drive or game console and is not unconstitutionally overbroad.

Defendant appeals from a judgment of conviction for possession of methamphetamine and menacing and assigns error to the trial court’s denial of his motion to suppress the methamphetamine evidence. Salem police discovered the methamphetamine during an inventory search of defendant following his arrest for menacing.

Defendant argues that the search violated Article I, section 9, because it was not authorized by the Salem Police Department’s inventory policy or, alternatively, because the policy is unconstitutionally overbroad. The policy authorizes officers to open closed containers “designed for” holding money “and/or other valuables.” Pursuant to that policy, a Salem officer opened a hard, black, nylon case that he found in defendant’s backpack that appeared to be a container for holding a small computer hard drive or video game console. The court concludes that the search fell within the policy because cases for small electronics fall within the scope of closed containers designed for holding “other valuables.” The court also concludes that the lack of a definition of valuables does not render the policy unconstitutionally overbroad because “valuables” is a category of property with sufficiently clear boundaries to impose the constitutionally required limitation on officer discretion.

Judge James concurs, acknowledging that although the court’s decision is supported by the appellate court’s case law, that case law rests on dubious analytical foundations and introduces significant discretion into the inventory exception.

State v. Cleland, 289 Or App 379 (2017) (Lagesen, P.J.)

Motion to Suppress—Warrantless Seizure—Traffic Stop Extension

An officer may not inquire into unrelated matters if those inquiries extend the length of the stop unless there is separate legal justification. Defendant appeals from a judgment of conviction for possession of methamphetamine and felon in possession of a restricted weapon and assigns error to the trial court’s denial of his motion to suppress.

Evidence during the suppression hearing established that an officer stopped defendant for bicycling without a headlight, a traffic violation, and because defendant “vaguely” matched the description of a male suspected of a possible residential burglary. After telling defendant his reasons for the stop and checking defendant’s identification, the officer explained why there were so many police vehicles in the area. Defendant repeatedly put his hands in his pockets after being told not to do so. After defendant put his hands in his pockets a third time, the officer conducted an officer safety patdown, which led to his discovery of a methamphetamine pipe and a restricted weapon. Defendant concedes that the officer had probable cause to stop him for the traffic violation and that his repeated conduct of putting his hands in his pockets raised legitimate officer safety concerns.

The issue on appeal is whether defendant was lawfully stopped during the officer safety patdown. The court concludes that defendant was unlawfully detained. The police may lawfully inquire into unrelated matters during an unavoidable lull in a lawful traffic stop so long as those inquiries do not result in any further restriction of movement. An officer may not inquire into unrelated matters if those inquiries extend the length of the stop unless there is separate legal justification. Here, the state failed to prove that the officer was still lawfully processing the traffic stop for the headlight violation at the time of the patdown. The state also failed to show that officer’s subjective belief that defendant may have been involved in the suspected burglary was objectively reasonable. Thus, the trial court erred in denying the motion to suppress.

State v. Blackstone, 289 Or App 421 (2017) (Aoyagi, J.)

Sentencing

Sentencing—Fines and Fees—DUII conviction fee not included within statutory maximum fine for Class A misdemeanor

Trial court’s imposition of a $6,200 fine and $255 DUII conviction fee did not violate statutory maximums.

Defendant was convicted of DUII, a Class A misdemeanor, the maximum fine for which is $6,250. The trial court imposed a $6,200 fine and a $255 DUII conviction fee, for a total financial obligation of $6,455. Defendant argues that the conviction fee must be included within the statutorily proscribed maximum fine of $6,250. Based on the text and context of the relevant statutory provisions, the legislature intended fees and fines to be separate things. Because the fee and fine were both within statutory limitations, the trial court did not err.

State v. Coates, 288 Or App 586 (2017) (Ortega, P.J.)

Sentencing—Fines and Fees—Error to impose premarked $255 DUII conviction fee on form judgment

State v. Macias, 288 Or App 691 (2017) (Per Curiam)

Sentencing—Fines and Fees--Plain error to impose court-appointed attorney where record silent as to defendant ability to pay

State v. Hayes, 288 Or App 698 (2017) (Per Curiam)

Sentencing—Restitution—Type of victim for which court may award restitution to health insurer

ORS 137.103(4)(a) refers to the direct victim of a crime or violation, as distinguished from an indirect victim such as a family member. Defendant caused a head-on collision when trying to pass another vehicle, seriously injuring the other driver. Defendant was convicted of reckless driving and careless driving. The trial court ordered defendant to pay restitution to the injured driver’s health insurer for medical expenses incurred by the driver and paid by the insurer. On appeal, defendant challenges the restitution award on the grounds that the victim is not the type of victim for which payments to an insurance carrier are authorized under the restitution statute. ORS 137.103(4)(d) (permitting restitution to an insurance carrier that “has expended moneys on behalf of a victim described in paragraph (a) of his subsection”). Specifically, defendant argues the victims of crimes like reckless driving and careless driving qualify for restitution under ORS 137.103(4)(b), which permits the trial court to award restitution on behalf of “[a]ny person * * * whom the court determines has suffered economic damages as a result of the defendant’s criminal activities,” and not under ORS 137.103(4)(a), which permits the court to award restitution on behalf of “[t]he person * * * against whom the defendant committed the criminal offense.” Defendant argues that ORS 137.106(a) is limited to crimes that require injury to another person as an element of the offense. In view of the legislative history of ORS 137.106, the Court concludes that ORS 137.104(a) refers to the direct victim of a crime or violation, as distinguished from an indirect victim such as a family member. Because defendant’s crime directly caused the victim’s injuries in this case, the trial court correctly concluded that the other driver was a victim under ORS 137.103(4)(a) and that the restitution award to the insurance carrier was proper.

State v. Zuniga, 288 Or App 742 (2017) (Aoyagi, J.)

Sentencing—Resentencing—Increased sentence and scope of remand

Resentencing court did not error in imposing increased dangerous offender sentence where court articulated wholly logical, non-vindictive reasons for the increased sentence and initial sentencing court’s finding that defendant was a dangerous offender was binding under the law-of-the-case doctrine.

Defendant appeals a judgment of conviction and challenges the sentence he received on remand after a successful appeal. The Court of Appeals had concluded that a 280-month sentence imposed on one of defendant’s convictions was erroneous and remanded for resentencing. On remand, the resentencing court relied on the first sentencing court’s finding that defendant is a dangerous offender and, based on that finding, imposed a 30-year indeterminate sentence with a 120-month minimum determinate sentence.

On appeal, defendant again challenges his dangerous-offender sentence and makes two arguments. First, defendant argues that the increased sentence violates State v. Partain, 349 Or 10 (2010), because the record is insufficient to justify the increase. The court rejects that argument because the resentencing court articulated wholly logical, non-vindictive reasons for the increased sentence. Second, defendant argues that the resentencing court could not rely on the dangerous-offender designation of the initial sentencing court because defendant had not waived jury on remand. The court rejects that argument because defendant did not challenge the trial court’s finding in his first appeal and reversal of his sentence did not reverse the initial sentencing court’s finding that defendant is a dangerous offender.

State v. Rienke, 289 Or App 10 (2017) (Armstrong, P.J.)

Sentencing—Compensatory Fine—Plain Error

Imposition of a compensatory fine in addition to a punitive fine is plain error.

State v. Kellison, 289 Or App 55 (2017) (Per Curiam)

Sentencing—$2,000 Fine for Third DUII, $255 State Obligation, $60 Mandatory State Amount—Plain Error

Trial court plainly erred in imposing $2,000 fine for defendant’s third DUII conviction because court erroneously believed that the fine was mandatory rather than discretionary when the sentence includes jail. Trial court failed to exercise discretion when imposing a $255 fine. Trial court had no authority to impose $60 mandatory state amount.

State v. Larson, 289 Or App 60 (2017) (Per Curiam)

Sentencing—Probation Revocation—Consecutive Incarceration Sanctions

If the court revokes multiple probationary sentences for separate supervision violations, the court has the authority to impose concurrent or consecutive incarceration sanctions for each term of probationary supervision that is revoked.

Defendant appeals from a judgment revoking four terms of probationary supervision, three of which are to be served consecutively, based on defendant’s admission that he had committed two probation violations. Defendant argues that the trial court erred in imposing three consecutive terms of incarceration because he committed only two supervision violations. The court concludes that the text and context of the controlling rule, OAR 213-012-0040(2), gives the sentencing court authority to impose either consecutive or concurrent incarceration sanctions any time that more than one term of probationary supervision is revoked for separate violations.

State v. McFerrin, 289 Or App 96 (2017) (Tookey, J.)

Sentencing—Restitution—Plain Error

Trial court plainly erred in imposing restitution for criminal conduct that defendant never admitted and of which he was not convicted.

Defendant appeals from the trial court’s supplemental judgment imposing restitution following his no contest plea to 30 property offenses. On appeal, defendant argues that the trial court’s restitution award is erroneous because it imposed restitution (1) for crimes that were committed only by defendant’s codefendant, (2) that arose from criminal activity that neither defendant nor his codefendant were ever charged, and (3) arose from alleged crimes that occurred outside the time period alleged in the joint indictment. The state contends that defendant’s arguments are unpreserved and not reviewable as plain error. The court concludes that the trial court plainly erred in imposing restitution. It exercises its discretion to correct the error in view of the gravity of the error, because defendant provided some notice to the trial court of its error, and remanding for resentencing does not severely undermine notions of judicial efficiency.

State v. Benz, 289 Or App 366 (2017) (Garrett, J.)

Sentencing—Stipulated Sentence—Appellate Review

Defendant’s assignment of error challenging a sentence resulting from a stipulated sentencing agreement not reviewable on appeal.

State v. Nelson, 289 Or App 373 (2017) (Per Curiam)

Sentencing—Restitution—Loss of Use versus Conversion Damages

Trial court applied the wrong formula to calculate restitution damages by calculating damages based on loss of use instead of conversion.

Defendant appeals from a judgment of conviction for first-degree theft and assigns error to the trial court’s ruling allowing a witness to testify about his examination of property that had been unlawfully seized and to the court’s restitution award.

Acting on a tip, police determined that defendant had a stolen Bobcat on his property. Defendant said that he had purchased the Bobcat in 2004 and had a bill of sale. An officer went to defendant’s property and seized the Bobcat without a warrant. During a police interview, defendant estimated that the Bobcat was worth $8,000. At trial, an officer who examined the Bobcat after its seizure testified that the Bobcat was worth $10,000. After a jury found defendant guilty, the trial court imposed restitution based on the rental value of the Bobcat. The court concludes that any error in allowing the officer to testify about the value of the Bobcat is harmless in view of defendant’s own valuation of the Bobcat, which was above the $1,000 necessary to prove first-degree theft. The court holds that the trial court incorrectly relied on a loss-of-use formula to calculate restitution. For permanent or long-term deprivations, the conversion-based theory of recovery applies. Under that theory, the measure of damages is the reasonable market value of the goods at the time and place of the conversion plus interest and less the value of the property at the time of return if the property is returned plus interest from that date.

State v. Rosette, 289 Or App 581 (2017) (DeHoog, P.J.)