Oregon Appellate Ct. - October 22, 2014

Latest revision as of 09:03, October 31, 2014

Physical Injury - Hair Pulling Neither Physical Impairment Nor Substantial Pain

A small amount of hair that has been pulled out of a victim’s head is not a physical impairment, for the purposes of physical injury in an assault case, because it neither interferes with the victim’s ability to engage in everyday activities nor disrupts the body’s ability to function. Evidence that defendant twice pulled out the victim’s hair and that the victim loudly said “ouch” is also not enough to establish substantial pain because it’s too speculative as to the actual pain felt. State v. Lewis, 265 Or App ___ (2014).

Permanency Hearings -- Out-of-court Statements Not a Violation of Parents’ Due Process

Out-of-court statements may be admitted in permanency hearings for ICWA cases without providing parents an opportunity to cross-examine, because under the “relaxed evidentiary strictures of ORS 419B.325,” the purpose of these hearings is to expedite permanency for the child. Parents’ liberty rights are not violated because they can subpoena the authors of these statements and the hearings are not a final determination of parents’ legal ties to the child. Parents do not make sufficient progress to allow the child to return home if they continue to have “explosive anger episodes as late as two weeks before the permanency hearing” and persistently have difficulty responding to their child’s basic cues. A change in permanency plan from reunification to adoption is not a foster care placement when the case does not involve a “‘significant shift in legal rights’’” such as establishing a guardianship. DHS v. J.M and M.M, 265 Or App ___ (2014).

Witness’ Competency -- Admissible Opinion Testimony

Counsel’s failure to object to a police officer’s opinion of a witness’ competency is not ineffective assistance counsel because such testimony is admissible. Giving testimony that a witness “knew what it was to tell the truth and what it was to tell a lie” is not inadmissible testimony about a witness’ credibility or truthfulness because it demonstrates a witness’ capability of telling the truth or knowledge of the difference between a truth and a lie, not whether a witness actually told the truth or is credible. Smith v. Franke, 265 Or App ___ (2014).

Parole – Parole Board May Delay Release For Potential Danger To The Community

Under the substantial evidence standard, the Board of Parole and Post-Prison Supervision may postpone a parole release date by 24 months when a psychological evaluation indicates that petitioner is a potential “danger to the health and safety of the community.” Here, although the evaluation did not state that petitioner would be a danger to the community, it noted that petitioner was controlling, antisocial, rebellious, “highly egocentric,” lacked any genuine empathy for the victim, and had not worked through the issues that led him to act in such a “bizarre and cruel manner at the time of the murder.” Because of those factors, the Board of Parole had sufficient findings to believe that petitioner would likely be a danger to the community allowing the Board to postpone petitioner’s release date. Gordon v. Board of Parole, 266 Or App ___ (2014).

Vouching – Not Plain Error To Admit Testimony Of Whether Victim Was Faking Distress

Trial court does not err by failing to strike testimony, sua sponte, concerning whether complainant’s emotions were faked when witness testifies to complainant’s demeanor and the trial court could reasonably infer that defense counsel had a reason to not object.

Here, witness testified to complainant’s emotional appearance,” describing her as being “genuinely upset that her disclosure of the abuse would break up her family.” Because that testimony did not “link [complainant’s] emotive conduct to the occurrence of the sexual abuse,” it was not vouching, but permissible demeanor testimony.

Furthermore, the trial court could have reasonably inferred that defense counsel had a reason not to object to prosecutor’s question on whether complainant was faking when defense counsel objected to witness’s answers about “legitimacy of [complainant’s] distress,” but did not object to the following eight questions that led to the “obviously imminent question about whether [complainant] was ‘faking’ it.” Because the trial court judge could reasonably believe that defense counsel had a reason for not objecting to the “faking” question, it was not plain error to strike the testimony sua sponte.” State v. Wilson, 266 Or App ___ (2014).

Warrantless Search – Requiring Defendant To Submit to HGN Test in Courtroom is a Search

Testing for natural or resting nystagmus is a search. Here, officer was asked to perform a horizontal gaze nystagmus test on defendant in trial. Defendant refused. Trial court judge instructed the jury that defendant had “no right to refuse to cooperate in the examination.” Because the test would reveal a physical condition that is not plainly manifested to the public, such a test constitutes a search and, without a warrant, violated the state constitution. Error was prejudicial where state advanced theory of guilt based on defendant’s field sobriety test performance. Because the jury could have found defendant guilty based on the testimony concerning the FSTs, requiring the defendant to perform such a test in front of the jury was prejudicial. State v. McCrary, 266 Or App ___ (2014).

Per Curiam: COA Will Review Plain Error Decisions Not To Merge

Court will review for plain error trial court’s decision not to merge charges when on the face of the indictment one charge was subsumed into another. Here, the unlawful use of a vehicle was subsumed into first-degree robbery where the robbery was the unlawful use of the vehicle. State v. Roalsen, 266 Or App ___ (2014).