Oregon Appellate Ct - Aug. 26, 2015

Latest revision as of 13:00, August 31, 2015

Sex Abuse - Sexual Contact - A Small Child Can Subjectively Believe a Body Part is Intimate Without Understanding the Concept of Intimacy

A three-year-old child has a subjective belief that a body part is considered "intimate", for the purposes of Sex Abuse, when there is evidence that the body part is ordinarily only touched by those close to her. The definition of “sexual contact” in ORS 163.305(6) contains the term “intimate parts.” For a body part to be considered intimate “the part must be subjectively intimate to the person touched.” A body part is considered to be subjectively intimate when a person ordinarily allows it to be touched only by people with whom the person has a very close personal relationship. Here, defendant argued that there was insufficient evidence to support his sexual abuse conviction because the three-year-old victim was too young to have a subjective belief that her hips and legs were “intimate parts.” Defendant also argued it was error to exclude his expert testimony regarding the capacity of a three-year-old to understand the concept of intimacy. The court finds that there was sufficient evidence to establish that the victim subjectively believed that her hips and legs were intimate parts because they were only touched by those close to her, such as her parents. Moreover, it was not an error to exclude the defendant’s expert testimony because understanding the concept of intimacy in terms of language acquisition is not essential to a subjective belief that a body part is intimate. State v. Miles, 273 Or App 271 (2015)

Self-Defense – Defendant’s Admission of Injury to Another Not Required to Claim Self-Defense

A defendant need not admit to assaulting or injuring another in order to claim self-defense. Here, in the course of working at a care facility, the defendant had an altercation with an autistic patient. He was ultimately convicted of Criminal Mistreatment I and Assault 4. Because evidence was presented that (1) the patient was combative with the defendant and (2) the defendant extended his arm towards the patient to prevent the patient from biting him, the defendant was entitled to a self-defense instruction. The court rejects the trial court’s ruling that the defendant must admit to causing injury before being entitled to a claim of self-defense. Because the evidence indicated that defendant’s movement was intending to thwart the patient’s attempt to bite him, that evidence was sufficient to claim self-defense. Remanded. State v Strye, 273 Or App 265 (2015).

Search and Seizure – Walking Away from Property Does not Relinquish Property Interest

For purposes of Article 1, section 9, neither putting an object on the ground nor walking away relinquishes one’s property interest in the object merely because the object looks to be of little value. Here, defendant was approached by an officer regarding a hit-and-run. The defendant set down a bottle of water and a Mcdonald’s food bag while talking with the officer. The defendant then accompanied the officer over to the defendant’s vehicle—located across the street—leaving the items where he had set them down. Due to increased suspicion of the defendant, another officer went to pick up the McDonald’s bag where defendant had left it, searched the bag, and discovered methamphetamine. Despite the apparent “low-value” of the food bag and bottle, the facts were insufficient to conclude that defendant’s statements and conduct demonstrated that he had abandoned the McDonald’s bag at the time that the officer opened it. State v. Brown, 273 Or App 347 (2015).

Right to Remain Silent – An Officer Question That Prompts Invocation May be Admissible If (1) Relevant and (2) No Adverse Inference From Invocation

Where a defendant invokes the right to remain silent in response to an officer's question, the pre-invocation question may be introduced later in trial to provide context for subsequent voluntary incriminating statements, so long as the questions are relevant and do not draw the jury to an adverse inference of defendant’s invocation. Here, defendant was stopped for driving under the influence of methamphetamine. The officer asked the defendant whether he had used drugs and the defendant invoked his right to remain silent. However, the defendant later voluntarily made incriminating statements about drug use while in custody, which were admitted at trial. In opening statement, the prosecutor mentioned the officer’s question about drug use and defendant’s later voluntary responses. The court did not err in allowing the prosecutor’s statements because (1) the questions provided context to the defendant’s later statements about drug use and (2) the statements were presented as clearly volunteered, without any inference to defendant’s invocation. State v. Jay, 273 Or App 373 (2015).

Reasonable Suspicion – Citizen Informant – Report Must Contain Evidence of A Crime Being Committed

In order to suffice for reasonable suspicion, a citizen informant’s report must provide an indication that the defendant was actually committing some sort of crime. Here, a woman called the police to report that a person she knew was threatening to break things. The officers—who believed that the disturbance involved the crimes of menacing, assault, or criminal mischief—stopped the man as he was walking out of the house. The defendant consented to a search and a pipe was found. The court finds that, even assuming the report was reliable, there was no indication of injury, fear of injury or property damage. Thus, the report did not give rise to an objectively reasonable suspicion of assault, menacing or criminal mischief. Since the state failed to prove that the consent was attenuated from the illegality, reversal is required. State v. Maciel-Figueroa 273 Or App 298 (2015).

OEC 702 – Sex Abuse - With Proper Training and Experience, An Officer May Testify Narrowly On The Reasons for Delayed Reporting

Assuming sufficient training and experience, a police officer may testify narrowly about the reasons a victim might delay reporting, so long as the detective does not describe it as a scientific or psychological phenomenon. Here, a detective testified as an expert on the different reasons why victims of either sexual abuse or domestic abuse might not report such abuse immediately. The court finds that the detective’s training—multiple trainings on delayed disclosures in child abuse cases—and the detective’s experience—ten years in law enforcement with multiple investigations involving delayed disclosure— was sufficient to allow the detective to testify. State v. Althof, 273 Or App 342 (2015).

Dependency - Permanency - No Evidence of Failure to Provide Services

A mother and her child appealed the juvenile court’s judgment changing a permanency plan from reunification to adoption. Three arguments were raised on appeal: (1) mother had made sufficient progress in the services provided to her to allow the child to return home, and, as a consequence, a compelling reason existed to determine that filing a termination petition would not be in the child’s best interest, ORS 419B.498(2)(b)(A); (2) the bond between mother and child is a compelling reason to determine that filing a termination petition would not be in the child’s best interests under ORS 419B.498(2)(b)(B); and (3) the failure to complete an updated psychological evaluation before the permanency hearing constituted a failure to provide sufficient services under ORS 419B.498(2)(c). The court rejected each of these arguments. There was not a compelling reason to preclude the filing of a termination petition when the mother repeatedly had drug relapses and was not consistently participating in services. Furthermore, the child’s expression of love for her mother and opposition to adoption were insufficient to constitute a compelling reason to preclude filing a termination petition. Additionally, there was not a failure to provide sufficient services when the psychological exam that had been ordered to occur after the DHS hearing was to assess the mother’s progress and the record did not indicate that the department failed to provide services consistent with the case plan. DHS v. T. M. S., 273 Or App 286 (2015)

Preservation – Jury Instructions

To preserve an argument for appellate review, “a party must provide the trial court with an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted.” Here, defendant—charged with strangulation and assault—objected to the state first introducing an officer’s testimony regarding prior acts under the grounds that the jury should first decide whether the charged acts had occurred before considering prior acts. While the defendant made a continuing objection to the officer’s testimony and discussed Leistiko with the court, the defendant did not request a Leistiko limiting instruction, object to the absence of the instruction, or object to the different form of the limiting instruction given by the court. The argument for appeal is unpreserved. State v. Logan, 279 Or App 323 (2015).

Preservation - Remand After Decision That an Error Was Plain

The Supreme Court remanded this case because it was plain error to instruct the jury on the officer’s subjective state of mind in regards to self-defense in a prosecution for resisting arrest. This impermissibly shifted the focus from what the defendant reasonably believes to what the officer believes. The Supreme Court had previously decided this was an incorrect statement of the law. The Court of Appeals exercises their discretion to remedy the plain error. Had the jury been correctly instructed on the law the outcome of the case might have been different. Furthermore, preservation would not have made a difference in this case because the trial judge said he was “pretty unlikely’ to accept an alternative jury instruction. Ultimately, the gravity of the error and the ends of justice require the court to exercise its discretion to correct the error and remand for a new trial. State v. Vanornum, 273 Or App 263 (2015).