Oregon Appellate Ct - Dec. 31, 2014

Latest revision as of 17:36, January 3, 2015

Adding the Word “weapon” To the Phrase "by means of a dangerous" is not a Substantive Amendment of an Indictment

Amending an indictment to include the word “weapon” in a charge of First Degree Assault is not a substantive amendment, but rather an amendment to the form of the indictment within the authority of the trial court to correct. Here, the indictment contained the phrase “defendant . . . did unlawfully and intentionally cause serious physical injury to the victim by means of a dangerous.” Because even a layperson who was unfamiliar with the different theories of Assault I would infer that the word “weapon” was missing, and the defendant was, “albeit imperfectly” put on notice of the charge, the amendment was in form only and the trial court could grant state’s motion to amend the indictment. State v. Rodriguez-Rodriguez, 268 Or App ___ (2014).

A Traffic Stop Occurs When Officers Unambiguously Convey That There Was A Traffic Violation

A person is stopped for a traffic violation when 1) an officer “unambiguously” conveys that defendant has committed a traffic violation and 2) the statements from the officer to the defendant do not equally convey a desire for information or assistance. Here, defendant was stopped when the officer informed defendant at a gas station that:

"he wanted to talk to him about his failure to use a turn signal at a 'Y' intersection between Lakeview and the gas station. Defendant told [the officer] that he did signal, and [the officer] told him that he had not signaled for 100 feet before the intersection"

Because the officer unambiguously conveyed that he had seen defendant commit a traffic violation, and the officer's repetition of the accusation indicated he was not interested in any explanation or assistance, "the assertion that [the officer] had seen defendant commit a traffic violation stopped defendant." The stop was without probable cause since no evidence was presented to the court that defendant had actually failed to signal. The exploitation analysis, according to the court, is similar to State v Musser:

"After [the officer] unlawfully stopped defendant, he questioned defendant about his trip and whether he had any drugs with him. During that questioning, he noticed signs that defendant had smoked marijuana recently. Based on those signs and defendant's answers to [the officer's] questions, [the officer] suspected that defendant had driven under the influence of intoxicants and that defendant might have marijuana in the car. He detained defendant to investigate those suspicions and, during that detention, defendant consented to the search of his car and [the officer] discovered the disputed evidence. Thus, as in Musser, defendant's consent to the search derived from the stop for the traffic infraction."

State v. Jackson, 268 Or App ___ (2014).

75 Months is Not Disproportionate for Sex Abuse I Where There Are Multiple Incidents, Skin-to-Skin Contact, and a Familial Relationship

It is not constitutionally disproportionate to sentence a person to a 75 month prison term for Sex Abuse I where there are multiple separate incidents, skin-to-skin contact, and a family-type relationship. Here, defendant touched complainant’s breasts on two occasions in a two year period. The first resulted from defendant hugging complainant from behind while complainant was fully clothed. The second followed defendant saying that complainant’s dress was “tight and that she looked good” at which point the defendant reached under complainant’s dress and touched her breasts. Because the defendant was in a step-father like relationship with complainant, there were multiple, escalating incidents over a period of time, and the second incident involved skin-to-skin contact and a sexually suggestive remark, it would not shock the conscious of a reasonable person for defendant to receive a mandatory 75 month term. State v. Camacho-Garcia, 268 Or App ___ (2014).

Evidentiary Foundation for Opinion of Truthfulness

The trial court did not abuse it's discretion in excluding a defense witness, on foundational grounds, who would have testified that the complainant is not a truthful person. The witness had known the complainant for four years but had only seen her briefly 5 or 6 times in the previous year. Most of what she knew she had heard from other people. Thus, it was not an abuse of discretion to exclude the opinion. State v Paniagua, 268 Or App ___ (2014).

There Are No Constitutional Grounds for Appeal Under ORS 138.050(1)(a)

An appeal from a guilty plea on constitutional grounds is limited to cruel and unusual punishment. The court rejects defendant's argument that the limit under ORS 138.050(1)(a) (for exceeding the maximum sentence) only applies to procedural constitutional claims, not, as here, a substantive due process claim regarding a limitation on the right to travel. State v Cloutier, according to the court, leaves no room for the distinction between substantive and procedural due process. Constitutional claims cannot be made at all under ORS 138.050(1)(a). State v Buckles, 268 Or App ___ (2014)

DOC Rules Allowing the Taking of Restitution for Major Violations are Facially Constitutional

It is not unconstitutional for the DOC to have rules that allow for a hearings officer to impose restitution for a major violation and for the restitution to be taken from the inmate's trust account. The rules do not facially violate Due Process because they allow for a hearing and a right to be heard. The rules do not exceed the authority of the DOC because they are disciplinary rules enacted in accordance with statutory authority. Hall v DOC, 268 Or App ___ (2014)

Merger - Felon in Possession - Constructive Possession is Continuing Possession

Where defendant, a felon, took a gun, put it in his trunk and retrieved it the next day after driving to a different location, he only committed one act of Felon in Possession of a Firearm. While it's true that the gun was out of defendant's physical control while it was in his trunk, it was still in his constructive possession since he was exercising dominion and control over it. That is, he had continuous possession of the gun from the time he took it to the time he retrieved it the next day. Thus, the two separate counts of Felon in Possession (one for each day) were required to merge. There was no "sufficient pause" between acts because there was only one act of possession. State v Nunes, 268 Or App ___ (2014)

Felony DUII - 90 Day Minimum is Mandatory

A trial court is not permitted to suspend execution of, or reduce in any way, the 90 day mandatory minimum sentence for felony DUII under ORS 813.011. In reference to the 90 days, ORS 813.011(3) uses the language "shall be sentenced", "mandatory minimum term" and "without reduction for any reason". The legislative history of 2010 Measure 73 confirms the plain language of the statute by indicating that the measure would cause "at least 90 days" to be imposed for a felony DUII. Note, however, that the court does not consider an argument proposed by OPDS in an amicus brief that ORS 813.011(3) is unconstitutional because it was enacted in violation of the single subject rule. (see fn 1). State v Urie, 268 Or App ___ (2014).

Involuntary Absence Is Not a Forfeiture of 6th Am. Rights

Under the Sixth Amendment, a pro se defendant who is removed from court for disruptive behavior is "involuntarily absent" and has not forfeited the right to representation. When a defendant is “involuntarily absent”, the court may not resume trial in the defendant’s absence unless "the trial court has either secured the defendant’s waiver of his right to representation at trial or has taken some other course of action that protects the defendant’s right to representation, which may include the appointment of counsel." State v. Menefee, 268 Or App ___ (2014).

Speedy Trial – 21.5 Months is Reasonable Delay in DUII and Assault 3 Case

Under former ORS 135.747, the total unconsented-to delay is reasonable if it is not so long that it is roughly equal to the statute of limitations for the most serious charge and all the individual periods of unconsented-to delay are justified. Here, the unconsented-to delay of 21.5 months was reasonable given that the state and court were trying to fit the case into the court’s crowded docket and the length of the delay was not less than the three-year statute of limitations for a charge of Assault 3. In addition, defendant was not prejudiced by the delay. Defendant had already identified witnesses who would testify on his behalf. And although witnesses could have remembered events more clearly at a time nearer to when defendant was charged, this is “true in every case where there has been pretrial delay,” and was not sufficient to warrant dismissal where it was not beyond what is expected when someone faces criminal charges. State v. Wendt, 268 Or App ___ (2014)

Probation Revocation – Cannot Impose More Jail Time Than Original Suspended Sentence

Based on ORS 137.545(5), when a court imposes, but suspends execution of a jail sentence as a condition of probation, it cannot sentence the defendant to a longer term of incarceration when the defendant’s probation is revoked. Such judicial action is considered plain error and the court of appeals may exercise its discretion because 1) exposing defendant to additional supervision is grave; 2) the error can be corrected easily by a slight modification of the judgment; and 3) the state has no interest in illegally prolonging defendant’s supervision. Here, defendant was initially given a suspended sentence of 120 days and later revoked off probation and sentenced to a year in jail. The court could not exceed on revocation the sentence it suspended in the initial judgment. State v. Rudnick, 268 Or App ___ (2014).

Dependency - Jurisdiction - DHS is Stuck with the Grounds Alleged in the Petition

Where DHS only alleged jurisdiction under ORS 419B.100(1)(c), it was required to show that the risk of harm exists at the time of the hearing. Thus, even though the jurisdictional hearing was limited to father, who was serving 219 months for sexually abusing the children, DHS was required to prove mothers inability to safely care for the children. Here, no evidence was presented because despite father's challenge to the allegations, the court found that no challenge had been made to mother's previous stipulations. Vacated and remanded for the court to determine whether there exists a basis for jurisdiction. DHS v A.F., 268 Or App ___ (2014)

Motion for Continuance Should Have Been Granted Where Defendant Was Required to Be in 2 Courts at the Same Time

The juvenile court abused it's discretion in denying father a continuance in a trial for termination of his parental rights (TPR). Father was released from the King County Jail the evening before the TPR trial and ordered to appear the next morning in King County Superior Court. "Practically speaking, father's dilemma - being ordered to appear in two courtrooms at approximately the same time - places him in such a difficult position that the trial court was obligated to choose a different course." "The trial court's one-line inquiry questioned father's ability to operate a telephone while ignoring entirely the constraints of imprisonment, displacement and indigence". Reversed and remanded. DHS v E.M., 268 Or App ___ (2014)

PCR - IAC - Agg Murder - Requesting a Competency Hearing

Requesting a competency hearing was a reasonable exercise of professional judgment in an aggravated murder case where defendant refused to cooperate from the outset, the retained evaluator opined that defendant was not competent and trial was 6 weeks away. It did not become unreasonable merely because the state hospital evaluator ultimately diagnosed defendant with anti-social personality disorder based on extensive interactions with defendant at the State Hospital. Thus, the competency process led directly to a more compelling penalty phase presentation from the state. Thompson v Belleque, 268 Or App ___ (2014)

PCR - IAC - Failure to Present an Expert in an Intoxication Defense

The defense attorney's decision not to call his intoxication expert as a witness at trial was a reasonable tactical decision even though he was presenting an intoxication defense. The attorney testified that she made the decision not to call the expert because she didn't want the state to present a more certain and effective expert in response. Such a decision is within the universe of reasonable tactical decisions. Thompson v Belleque, 268 Or App ___ (2014)

PCR - IAC - Agg Murder - Failure to Prepare and Present at the Penalty Phase

The defense was not constitutionally inadequate in failing to call family members at the penalty phase who would have testified that they loved defendant. Evidence at the PCR hearing indicated that the defense made a tactical decision not to present those witnesses because of the potential harm they could cause. For example, defendant's grandmother would have testified that she loved him, but she also would have testified that she "advised the police that she had always thought that [defendant] would lose his temper and kill her" and that "the week [defendant] moved in with her, she wrote out her funeral plans for the family, and purchased a cemetery plot." The defense was also not inadequate, after interviewing numerous family and friends, in ceasing further attempts at interviewing additional family members for fear that additional witnesses would have damaging information and ask to contact the district attorney. Thompson v Belleque, 268 Or App ___ (2014)