Oregon Appellate Ct - Dec. 2, 2015

Latest revision as of 10:47, December 8, 2015

Exploitation - When the Purpose of Police Misconduct Is To Procure Consent, the State Is Unlikely to Be Able to Prove There Was Not Exploitation

On reconsideration, in light of State v Unger, Musser and Lorenzo, the court finds that the state failed to establish that defendant's consent to search was not the product of police exploitation of an illegal seizure that had just occurred. More specifically, the police inquired about drugs and requested consent to search at the beginning of an otherwise legal traffic stop and not during an unavoidable lull. Defendant then admitted that he had heroin in his pocket and consented to further searches. Thus, the stop was unlawfully extended for the exact purpose of acquiring defendant's consent. That is the temporal proximity of the consent to the illegality was immediate. There was a direct causal link between the illegality and the consent. There were no intervening or mitigating circumstances to mitigate or cut off the causal link. While nothing about the police behavior was threatening, the misconduct was "at least moderately flagrant" because the "prohibition against extending stops by way of gratuitous investigatory inquiries" was well established. Ultimately though, the most important factor for the court is that the purpose and the intended consequence of the police misconduct was to procure consent to an exploratory search for drugs. State v Pichardo, 275 Or App 49 (2015).

Repeat Sex Offender - Comparable Out of State Offense - California Lewd Acts Law is "Comparable" to Sex Abuse I Despite Being Broader

For the purposes of Oregon's life sentence, repeat sex offender law, the California crime of Felony Lewd Acts With a Child Under 14 (CPC 288) is comparable to Sex Abuse I even though the California law doesn't require contact with an intimate part of the body. "As used in ORS 137.719, 'comparable' means having enough like characteristics or qualities to make comparison appropriate." It is not the same as "similar" for the purpose of calculating an offender's criminal history score under the sentencing guidelines. Here, the California law has the same aim as Sex Abuse I and both require a touching with a sexual purpose. The fact that the California statute is broader is not decisive where the statutes have the same use, role and characteristics. The court "readily" concludes that the statutes are comparable for purposes of ORS 137.719. State v Carlton, 275 Or App 60 (2015).

Trial Procedure - Prosecutor’s Expression of Personal Beliefs During Opening and Closing Arguments Require, At Least, Curative Instructions

It was not an abuse of discretion to deny a mistrial after the prosecutor repeatedly used the terms, “I think” and “I believe” in opening and closing arguments. The court responded with careful and specific curative instructions to the jury and the terms were mostly used in referencing inferences the jury could make, not commenting on the credibility of the witnesses. State v. Wasyluk 275 Or App 149 (2015).

Menacing – Imminence - A Threat to Murder Someone in 3 Days Is Not Menacingly Near

To be convicted of menacing, a person’s words or conduct must have caused fear of imminent serious physical injury. The possibility of unspecified future harm is not sufficiently “imminent”. Here, youth was convicted of menacing after telling three of his classmates that he was going to kill them by way of voodoo dolls and black magic. To one 12 year old girl, youth told her she would die when she was 18 years old, then 16, then 13, then in three days; and if not then, he would stab her to death with a pencil. Defendant would gesture his finger across his neck as he passed the classmates at school and whisper “die”. Because juvenile’s threats and gestures were vague and unspecified in time, they would not have caused a reasonable person to conclude that harm had suddenly become “menacingly near.” Reversed. State v. C.S. 275 Or App 126 (2015).

Search & Seizure – Officer Safety No Longer Applies Once The Officer's Belief of Danger Dissipates

Under the officer safety exception to the warrant requirement, an officer may seize an object if (1) the officer subjectively believes either that the object itself is a dangerous or deadly weapon or that the object contained such a weapon, and (2) that subjective belief was objectively reasonable. Here, after initially believing that the defendant had a weapon, the officer quickly realized it was a pouch. Because the officer did not believe the bag contained weapons, the seizure did not fall under the officer safety exception. This was underscored by the fact that once he realized it was a pouch, the officer began asking about and investigating the possession of drugs. Reversed. State v. Amsbary 275 Or App 115 (2015).

DNA Testing - Defendant Does Not Lose His Chance for Appointed Counsel by Filing His Request for Counsel and Motion for DNA Testing Simultaneously

The DNA testing statute (ORS 138.690-694) does not require a two-step process in which defendant first files a request for court-appointed counsel and, only after counsel is appointed, files a motion for DNA testing. Here, defendant filed a combined motion for DNA testing and request for counsel, complying with all the statutory requirements, including the affidavits. The Umatilla County Court "without a hearing, denied both the appointed-counsel petition and the DNA-testing motion, without explaining its reasoning." The state, on appeal, argued that by filing the motion at the same time as the request for counsel, the request for counsel was rendered untimely and properly rejected. The court rejects the states argument, finding that there is no two-step process. So long as a defendant complies with the statute, counsel should be appointed. Since counsel, in this case, may provide assistance with defendant's DNA motion, the order denying the motion is also vacated. State v Templeton, 275 Or App 69 (2015).

Dependency –Service Defect Waived if Not Raised Early in Proceedings

Under Oregon law, it has long been the case that a party claiming that a court lacks personal jurisdiction because of a defect in service must raise that issue at the earliest possible occasion. Here, DHS served father, who was living in Mexico, in a way that was defective under the Hague Service Convention. However, father participated in almost two years of proceedings with DHS before raising the issue of a service defect. Due to this participation, father waived objections to sufficiency of service and father’s motion to dismiss was properly denied. Dept. of Human Services v. M.C-C. 275 Or App 121 (2015).

Plain Error - UUV - A Reasonable Dispute Exists On the Question of Whether Defendant Has Consent If Co-Owners Give Conflicting Answers to a Request to Use the Vehicle

Under the doctrine of “plain error,” the asserted error must be apparent, i.e., the point must be obvious and not reasonably in dispute. Here, in a UUV trial, the defense was predicated on the fact that defendant’s father had given consent to use the car earlier in the day even though defendant’s mother denied consent to use the vehicle the moment before defendant took it. However, the jury was instructed to find defendant guilty if they found defendant took the car from the owner, defendant’s mother, with no mention of defendant’s father. The defendant did not object to the instructions. Because a reasonable dispute exists as to whether a jury can still convict defendant for UUV if co-owners give conflicting responses to a request to use the vehicle (in contrast to defendant having his own ownership interest in the car, which would result in an acquittal), there is no plain error in the jury instructions. State v. Simonsen 275 Or App 154 (2015)

Plain Error - Concurrence - Court Chooses Not to Correct a Plain Error Where Defendant Acquiesced in the Error and It Probably Didn't Make a Difference in the Outcome

Where defendant was only charged with Burglary with the Intent to Commit Coercion, it was plain error for the trial court to instruct the jury that it could find defendant guilty if he had either the intent to commit Coercion or the intent to commit menacing. However, the court chooses not to exercise it's discretion to correct the error because (1) defense counsel, by acquiescing to the bad instruction, played a significant part in bringing about the error; and (2) defendant was ultimately convicted of coercion, consistent with the state's theory that defendant went to his girlfriend's house with the intent of coercing her to leave with him. State v Roy, 275 Or App 107 (2015).

Appellate Procedure - When the Appellate Court Finds That Restitution Is Not Available, Remand for Resentencing Is the Appropriate Action

When the appellate court finds that restitution Is not available, remand for resentencing Is the appropriate action because the trial judge may want to Impose a compensatory fine. State v King, 275 Or App 99 (2015)

The Former Speedy Trial Statute Still Applied Until the Time When the New Statute Went Into Effect

Where, at the time of defendant's trial, the new speedy trial statute had been passed but not yet taken effect, the trial court erred by finding that the former statute was no longer applicable. Pursuant to the former statute, a 21 month delay in a misdemeanor case with 5 of the months unexplained was an unreasonable delay. Reversed. State v. Burkette 275 Or App 135 (2015).