Oregon Appellate Ct. - Mar. 4, 2015

Revision as of 12:01, March 7, 2015

Qualifying Experts – Pharmacologist Can Testify About Effects of Drugs on Mental State

A pharmacologist is qualified to testify about the effects of drug–induced dementia on a person’s ability to form intent. Here, the trial court ruled that because the expert wasn’t a psychiatrist he could testify about the side effects of taking a drug, but not a drug’s impact on a person’s mental state. Because the expert testified during a 104 hearing that he had many years of experience working with drug-induced dementia, was an experienced anesthesiologist, and specialized in psychopharmacology, he should have been qualified as an expert. State v. Hazelett, 269 Or app 483 (2015).

Dependency Hearing – Parents Must Raise IAC Claims During the Permanency Hearing

In order to challenge a change in a permanency plan that resulted from a hearing where parent’s counsel was not present, the parent must, at the hearing, request that the judgment be set aside due to inadequacy of counsel under ORS 419B.923. Here, a permanency plan was changed from reunification to “another planned permanent living arrangement,” during a permanency hearing where the father’s dependency counsel did not appear nor provided any explanation about his absence. Because the father should have requested for the judgment to be set aside at the hearing, he could not raise the IAC claim for the first time on direct appeal.

Egan’s dissent: Although there have been minor changes to ORS 419B.923 since the Supreme Court held in State ex rel Juv. Dept. v. Geist (Geist II) that parents could assert an IAC claim on direct appeal, these changes have not made the statute an express remedy for IAC claims that prevents parents from bringing that claim for the first time on direct appeal. In holding such, the majority limits the intent of the legislature and deprives the father of a remedy created by the Supreme Court in Geist II. Dept. of Human Services v. T.L., 269 Or App 454 (2015).

Reasonable Suspicion – Seeing Burning Embers Without More Is Not Enough to Stop

Burst of embers from under a tire is not sufficient to establish reasonable suspicion that a person tossed a cigarette butt from a truck window. Here, Defendant was being followed by two police cars. The second police car was about fifty feet away from Defendant’s truck when he saw a burst of embers from underneath the wheels of the first police car. Because the officer in the second police car could not see whether the first police car had run over the burning material or whether the material had just hit the ground, or whether the Defendant even threw it out the window of his truck, and the state failed to establish that there wasn’t anyone else on the road that could have tossed the butt, there was no reasonable suspicion to stop the Defendant’s truck. State v. Eastman, 269 Or App 503 (2015).

Subject Matter Jurisdiction – Failing to Waive Fees in Diversion Not Grounds for Appeal

A court’s failure to recognize it had discretion to waive fines and fees does not expose defendant to a sentence that exceeds the legal maximum. Here, defendant’s diversion was terminated after a single late payment when she had completed nearly all of the requirements of the program. At sentencing the court expressed its sympathy, but declined to waive the alcohol evaluation and other payments because it lacked discretion to do so. Although the court was incorrect about its discretion, because the Defendant did not show that her sentence exceeded the maximum allowed by law the Court of Appeals does not have jurisdiction to hear the appeal State v. Johnson, 269 Or App 497 (2015).

Search & Seizure - Facts That Have Innocent Explanation Can Still Give Rise to Reasonable Suspicion

An innocent explanation of individual facts does not mean that the conduct cannot also give rise to reasonable suspicion of criminal activity. Here, defendant was stopped for suspicion of DUII, then argued that there was a non-criminal explanation for all of his actions, and therefore the stop was not supported by an objectively reasonable suspicion that he was driving under the influence of intoxicants. Because the officer testified that defendant’s balance or spatial awareness was impaired upon leaving a pub, there was reasonable suspicion to stop him for DUII. State v. Nichols, 269 Or App 429 (2015).

Sex Offender Reporting – Duty to Report Requires More than an Offender Leaving Former Residence

Under former ORS 181.599(1)(d) (2011), renumbered as ORS 181.812(1)(d) (2013), a defendant convicted of a sexual offense may not be convicted of failure to report as a sex offender when the state cannot prove that the defendant acquired a new residence. The “duty to report is triggered only when the sex offender has both left the offender’s former residence to go to a new residence and has acquired a new residence.” State v. Hiner, 269 Or App 447 (2015)

Accomplice Testimony – Evidence Readily Corroborating Testimony, Enough to Convict Defendant

A conviction can be based on the testimony of an accomplice when the totality of the evidence readily corroborates an accomplice’s testimony that the defendant participated in the alleged crime. Here, the Defendant was charged with first degree burglary and first degree robbery. An alleged accomplice testified that the defendant participated in the criminal acts. This testimony was corroborated by: 1) letters defendant wrote while awaiting trial that discussed the defendant’s participation, 2) testimony that the police found the gun safe reported stolen in the bedroom where defendant slept for several weeks, 3) testimony from one of the victims that defendant’s build was consistent with one of the men who committed the crimes, and 4) testimony from a girlfriend of one of the accomplices about the defendant returning to her apartment with her boyfriend and two other men to distribute the contents within the gun safe. State v. Lunetta, 269 Or App 512 (2015)