2017 Case Summaries by Topic

Appeals—Justiciability—Mootness

Appeal of contempt judgment that imposed no sanctions is moot because judgment does not carry sufficient social stigma and only mere possibility that judgment might carry future adverse consequences.

Defendant appeals a judgment of punitive contempt based on the finding that he violated the terms of a restraining order and assigns error to the trial court’s denial of his judgment of acquittal. The trial court found defendant in contempt, but did not impose any sanctions. The state argues that the appeal is moot. The court concludes that, absent a sufficiently stigmatizing sanction, a judgment for contempt alone does not carry sufficient social stigma to prevent mootness. Additionally, mere possibility that contempt judgment may have future adverse legal consequences insufficient to prevent appeal from being moot.

State v. Welch, 289 Or App 118 (2017) (Shorr, J.)

Tampering with Physical Evidence—MJOA—Plain Error

Trial court plainly erred in failing to grant MJOA on tampering with physical evidence count because no evidence from which a reasonable juror could find beyond a reasonable doubt that defendant knew that an official proceeding was pending or about to be initiated when he destroyed evidence. Court exercises discretion to correct error because of magnitude of error and because correcting error does not undermine policies favoring preservation.

State v. Matzke, 288 Or App 842 (2017) (Per Curiam)

Failure to Report as a Sex Offender—Classification of juvenile adjudication determines whether failure to report is a felony

Defendant’s failure to report as a sex offender was a felony because “the crime for which the person is required to report” refers to the statutory offense giving rise to the reporting requirement.

Failure to report a move and a new address as a sex offender is a misdemeanor unless “the crime for which the person is required to report is a felony.” Former ORS 181.599(3)(b)(B) (2011). Here, defendant had a juvenile adjudication for acts that, if committed by an adult, would constitute felony sex crimes and failed to report his new address after changing residences. He argued that the juvenile adjudication that triggered the reporting requirement was not a felony because juvenile adjudications are not “crimes.” The court rejected that same argument in State v. Hinkle, 287 Or App 786 (2017).

State v. Rogers, 288 Or App 769 (2017) (Egan, P.J.)

Crimes—Theft & Criminal Mischief—Property of an owner

Theft and criminal mischief require evidence that the property is the property of another.

Defendant and a friend entered private land without the owner’s knowledge, found an old excavator, and disassembled and sold the excavator as scrap metal. No one knew who owned the excavator, including the property owner. The state charged defendant with, among other crimes, first-degree theft and second-degree criminal mischief. At trial, defendant moved for judgment of acquittal on the grounds that the state had adduced no evidence that the excavator had an owner. The Court holds that although the state is not required to prove the identity of the excavator’s owner, it is required to prove that the excavator had an owner. In cases in which a defendant raises the issue of abandonment, the state must adduce evidence sufficient to allow the jury to find that the property is not abandoned. Because the state failed to prove that the excavator was property of another, the trial court erred in denying defendant’s motion for judgment of acquittal.

State v. Erickson, 288 Or App 704 (2017) (DeHoog, J.)

Criminal Procedure—Waiver of Appointed Counsel—Intentional waiver

Defendant intentionally waived counsel by rejecting option to have public defender appointed and expressing intent to proceed pro se.

In a consolidated case, defendant appeals judgments of conviction for resisting arrest, driving under the influence of intoxicants, and failure to carry or present a license. He assigns error to the trial court’s conclusion that he waived counsel and to the license suspension fee, $255 DUII conviction fee, and a $50 warrant fee imposed at sentencing. Before trial, the court appointed a public defender. At a later hearing, defendant asked the court to remove the public defender because he believed the attorney was incompetent. The trial court asked defendant if he wanted to hire his own attorney or proceed pro se, and defendant stated that he wanted additional time to retain counsel. At the following hearing, defendant stated that he had been unable to find competent counsel and asked for more time so he could prepare for his defense. Defendant refused to sign a waiver of attorney form. The trial court advised defendant of the dangers of self-representation. On appeal, defendant disputes that he intentionally waived counsel. The court disagrees, concluding that defendant’s rejection of the option for a court-appointed attorney and statements that he needed time to prepare his case demonstrate that he intentionally waived counsel. The trial court did not announce that it was imposing the $15 license suspension fee, $255 DUII conviction fee, and a $50 warrant fee imposed at sentencing, but imposed them for the first time in the judgment. In those circumstances, imposition of the fees was error.

State v. Warren, 289 Or App 77 (2017) (Egan, J.)

Criminal Procedure—Right to Self-Representation—Mid-trial waiver of counsel

Trial court abused its discretion in denying defendant’s request to waive counsel mid-trial because it did not weigh defendant’s right to proceed pro se against need for an orderly and expeditious trial.

Defendant moved to represent himself at the end of the first day of trial stating that he was unhappy with his counsel’s preparation for trial and cross-examination of witnesses. The trial court denied defendant’s request because it believed counsel was providing excellent representation, that defendant would be at a severe disadvantage if he dismissed counsel, that defendant’s decision, including any request for a legal advisor, should have been made long ago, and because the court did not believe that defendant could adequately represent himself. A trial court may deny a defendant’s mid-trial waiver of his or her right to counsel mid-trial if either of two circumstances are present: (1) the waiver is not knowing and voluntary or (2) the court’s obligation to ensure fair, orderly, and expeditious proceedings outweighs the defendant’s right to self-representation. Here, the trial court could not have found that defendant’s waiver was not knowing and voluntary. The court does not decide whether the potential that defendant would disrupt trial would have warranted the trial court denying his request. Rather, the court concludes that the trial court abused its discretion in denying the waiver because it did not weigh the relevant interests involved in denying defendant’s waiver, specifically it did not balance defendant’s right to proceed pro se against the need for an orderly and expeditious trial.

State v. Williams, 288 Or App 712 (2017) (DeHoog, J.)

Criminal Procedure—Setting Aside Record of Arrest—Arrest for Contempt

When a defendant is charged with the “crime” of contempt and that charge is later dismissed, ORS 137.225(1)(b) (2013) authorizes trial court to set aside the record of arrest.

Defendant appeals from a trial court’s denial of his motion to set aside the record of his arrest for punitive contempt of court, challenging the trial court’s conclusion that ORS 137.225(1)(b) (2013) does not apply to him. Defendant, an attorney, was issued a citation in lieu of arrest for the “offense” of contempt of court for disobeying an order of a circuit court. By information, the state charged him with five counts of the “crime” of contempt, a “U-Misdemeanor.” The contempt charges were later dismissed. Defendant moved under ORS 137.225 for the trial court to set aside the record of his arrest, and the state objected contending that ORS 137.225 only applies to criminal arrests and contempt is not a crime. The trial court denied defendant’s motion. The court concludes that it does not need to determine whether the legislature intended to include charges for contempt under ORS 137.225(1)(b) because, regardless of whether it is actually a crime, the state charged defendant with the “crimes” of contempt.

State v. Simrin, 289 Or App 68 (2017) (Egan, J.)

Defenses—Guilty Except for Insanity Defense—Insufficient Evidence

Evidence insufficient to support GEI defense instruction where no evidence that as a result of defendant’s mental disease or defect he lacked the substantial capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law.

Defendant appeals from a judgment of conviction for first-degree burglary, second-degree robbery, identity theft, and possession of methamphetamine. On appeal, he assigns error to the trial court’s refusal to instruct the jury on the guilty except for insanity (GEI) defense and refusal to include a GEI option on the jury verdict form. Evidence at trial showed that defendant had burglarized a residence and, two days later, robbed an adult video store. Prior to trial, defendant was twice evaluated by a psychologist to determine to determine if he could aid and assist in his defense, and a third time for the purpose of offering testimony in support of a potential GEI defense. To establish a GEI defense, a defendant must show that, as a result of a mental disease or defect, he lacked the substantial capacity to appreciate the criminality of his conduct and to conform that conduct to the requirements of the law when he committed the crime. Evidence presented at trial showed that defendant was very low functioning, had persistent auditory hallucinations, and delusional beliefs. Defendant was diagnosed with unspecified schizophrenic spectrum or other psychotic disorder, which did not meet the full criteria for the disorders in the schizophrenia spectrum and other psychotic disorders class, and severe stimulant use disorder. The court concludes that even if there was sufficient evidence from which the jury could conclude that defendant suffered from a mental disease or defect, there was no evidence that, as a result, defendant lacked the substantial capacity to appreciate the criminality of his conduct or conform his conduct to the requirements of the law. Because defendant did not establish a connection between defendant’s condition and his conduct, the trial court did not error in denying the GEI instruction or GEI option on the verdict form.

State v. Shields, 289 Or App 44 (2017) (Shorr, J.)

Juvenile Delinquency—Sentencing—Conditions of Probation

Juvenile court exceeded its authority in authorizing juvenile department to sanction probation violation with detention.

State v. M.V.L., 288 Or App 845 (2017) (Per Curiam)

Dependency—Motion to Set Aside Guardianship

In light of the Court of Appeals’ reversal of the underlying permanency judgments, the juvenile court lacked discretion to deny motion to set aside the guardianship judgments.

Mother appeals from juvenile court orders denying her motions to set aside guardianship of her three children. She argues that in light of the appellate court’s decision in DHS v. S.M.H., 283 Or App 295 (2017), which reversed the underlying permanency judgments changing the plan for her children from reunification to adoption, the court was required to grant her motions. While the appeal in S.M.H. was pending, DHS filed petitions for the juvenile court to establish a guardianship and appoint aunt and uncle, who the children had been living with, as legal guardians. Mother filed motions to stay, asserting that she was likely to prevail on appeal, and the trial court denied the motions. At the hearing on DHS’s motions to establish guardianship, mother stipulated to the orders appointing aunt and uncle as guardians with the understanding that she was still appealing the change in the permanency plan from reunification to adoption. After the appellate court reversed the underlying permanency judgments, mother moved to set aside the guardianship orders and requested a new permanency hearing. The juvenile court denied mother’s motions. The court concludes that the juvenile court lacked discretion to deny motion’s motions to set aside the guardianship judgments because, in view of the reversal in S.M.H., there was no permanency plan of guardianship, which is a prerequisite to the establishment of guardianship.

S.H., 289 Or App 88 (2017) (Egan, P.J.)

Juvenile Dependency—Juvenile court’s jurisdiction to continue durable guardianship

Juvenile court erred in failing to determine whether it continued to have jurisdiction over child in durable guardianship.

Mother appeals from a juvenile court judgment entered after the court denied her motion to vacate the guardianship and terminate the court’s wardship over mother’s child. Juvenile court asserted jurisdiction over the child due to mother’s substance abuse in 2012. In a 2013 permanency hearing, the plan for reunification with the child was changed to a durable guardianship. In 2016, mother moved to vacate the guardianship and terminate the court’s wardship over the child on the grounds that she had ameliorated her substance abuse issues. By statute, a durable guardianship may continue only if the juvenile court has jurisdiction over the child. Here, the court concludes that the juvenile court erred by failing to determine whether it continued to have jurisdiction over the child. The court vacates and remands to the juvenile court to make that determination.

DHS v. J.C., 289 Or App 19 (2017) (Armstrong, P.J.)

Expert Witnesses—Comment on Credibility

Expert testimony regarding specific deficiencies in interview methodology amounts to a comment on the credibility of interviewed witnesses.

Defendant appeals from a judgment of conviction for multiple sex offenses involving minors. On appeal, defendant asserts that the trial court erred in preventing his expert from testifying that a detective’s interviews with child witnesses did not meet established protocols for interviewing children who have reported sexual abuse. Defendant also claims that the trial court erred in prohibiting defendant from calling two surrebuttal witnesses who would have testified as to a rebuttal witness’s character for truthfulness.

At trial, defendant sought to admit expert testimony regarding a detective’s failure to follow established methodologies for interviewing two victims. The trial court permitted defendant to present general evidence about how interviews should be conducted, but prevented the expert from testifying as to deficiencies of the particular interviews of the child witnesses on the grounds that such testimony would amount to a comment on the credibility of the witnesses. The court affirms the trial court’s ruling, reasoning that expert testimony regarding how the interviews were deficient would suggest to the jury that the witnesses were not telling the truth and would not have provided the jury information sufficiently beyond the ordinary experience of a lay finder of fact such that it would help the jury make an informed decision about credibility. The court also rejects defendant’s second assignment of error because defendant’s offer of proof was insufficient to show that the trial court erred in excluding the evidence and that the evidence was harmful.

State v. Black, 289 Or Ap 256 (2017) (Shorr, J.)

Evidence—Expert Testimony—Qualifications of Expert

Witness’s experience working with people with traumatic brain injuries qualified her to testify as an expert as to whether defendant’s behavior was consistent with her observations of people with traumatic brain injuries.

Defendant appeals from a judgment of conviction for driving under the influence of intoxicants (DUII) and assigns error to the trial court’s ruling limiting the testimony of a defense expert, a registered nurse, about defendant’s traumatic brain injury (TBI). Defendant’s theory at trial was that the trooper who arrested him for DUII misinterpreted defendant’s TBI symptoms as signs of intoxication. A video recording of defendant’s performance on the field-sobriety tests was played to the jury. The trial court precluded the defense expert, a registered nurse, from testifying that defendant’s behavior on a field sobriety video was consistent with her observations of patients who have TBI. The defense witness had cared for or supervised the care of approximately 20 patients with TBI over her 10 years as a nurse and she frequently works with and regularly observes people with TBI The court concludes that because the witness’s experience gave her “specialized knowledge” regarding the symptoms and mannerisms of TBI patients, she was qualified to testify whether defendant’s behavior in the video was consistent with the behavior she has observed in TBI patients over the course of her career. Because the trial court’s error in excluding the expert testimony was not harmless, the court reverses for a new trial.

State v. Woodbury, 289 Or App 109 (2017) (DeHoog, J.)

Evidence—Non-Hearsay—Out-of-court statement identifying defendant as the shooter not statement of identification

Declarant’s out-of-court statements identifying defendant as the shooter not statement of identification under OEC 801(4)(a)(C).

Defendant appeals from a judgment of conviction for second-degree assault and unlawful use of weapon. On appeal, defendant assigns error to the trial court’s admission of out-of-court statements by the victim’s girlfriend stating that defendant had shot the victim. Evidence at trial established that defendant, the victim, and the victim’s girlfriend were friends. One evening, they and defendant’s girlfriend got together in defendant’s camper trailer. There, defendant confronted the victim about Christmas presents that had been taken from a car. The victim’s girlfriend then heard shots and saw that the victim was hurt. She later identified defendant as the shooter in a lineup.

At trial, two officers testified that the victim’s girlfriend identified defendant as the shooter. Defendant objected on hearsay grounds to the first officer’s testimony and did not object to the second officer’s testimony. Under OEC 801(4)(a)(C) exception to the definition of hearsay for out-of-court statements of identification did not apply to officers’ testimony recounting statements of victim’s girlfriend identifying defendant as the shooter. To qualify as non-hearsay, the identification must result from, and not merely follow, the declarant’s perception of the person. Here, the girlfriend’s identification of defendant did not result from perceiving defendant in the line-up; rather, it resulted from her earlier acquaintance with defendant. Because the hearsay statements were not harmless, the court reverses and remands for a new trial.

State v. Hartley, 289 Or App 25 (2017)

Evidence—Vouching—Plain Error

Trial court’s failure to sua sponte strike purportedly vouching testimony not plain error because not obvious that statement was offered for its truth.

State v. Deleon, 288 Or App 850 (2017)( (Per Curiam)

Evidence—Prior Bad Acts Evidence—Harmless Error

Admission of prior bad acts evidence harmless in view of trial court’s limiting instruction.

State v. Shinnick, 288 Or App 847 (2017) (Per Curiam)

Evidence—ORS 136.444—Corroboration of Accomplice Testimony

Evidence insufficient to corroborate accomplice testimony because it did not independently connect defendant to the crime or corroborate the commission of the offense.

Defendant was apprehended and convicted of 17-counts after he and two accomplices were observed burglarizing a uniform supply store. Defendant assigns error to the trial court’s denial of his motion for judgment of acquittal on six counts that concerned two earlier conspiracies, to kidnap a jewelry store employee and to rob a cellular phone store, on the grounds that he was convicted based solely on the testimony of his accomplices without extrinsic evidence connecting him to the crimes.

Under ORS 136.44(1), a person may not be convicted based on an accomplice’s testimony unless it is corroborated by other evidence that tends to connect the defendant with the commission of the offense. Even slight or circumstantial evidence will suffice if it tends to connect the defendant with the crime alleged so long as it is independent of the accomplice testimony and there is independent evidence that the crime actually occurred. With respect to the kidnapping episode, the state argues that the accomplice testimony was corroborated by defendant’s apprehension with the two accomplices during the uniform supply store burglary and various items found in their vehicle (firearms, syringes, thermite, zip ties, and a stolen animal shelter jacket), that were to be used in the kidnapping.

The Court concludes that that evidence is insufficient: defendant’s association with the accomplices was too temporally distant from the kidnapping conspiracy, alleged to have occurred two weeks earlier. The instrumentalities of that conspiracy are also insufficient because the state failed to connect them to the vehicle used in the conspiracy, connect defendant to the vehicle, and because, independent of the accomplice testimony, the items are lawful to possess. Finally, the animal shelter jacket, allegedly stolen as part of the plan for the commission of the burglary did not sufficiently corroborate the accomplice testimony because there was no independent logical connection that linked the animal jacket and the planned kidnapping. With respect to the attempted cellular phone store robbery, the court concludes that it does not need to address whether there was sufficient evidence to connect defendant to that crime because there was no evidence independent from the accomplice testimony that the attempted robbery occurred at all. Specifically, a note listing the cellular phone store as a potential target did not evidence that someone had taken a substantial step towards the attempted robbery.

State v. Riley, 288 Or App 807 (2017) (James, J.)

Evidence—Remand for OEC 403 balancing

Trial court failed to adequately demonstrate that it admitted video depicting boyfriend prompting children to use racial epithets after consciously engaging in OEC 403 balancing process in manslaughter case.

State v. Alvarado, 288 Or App 752 (2017) (Per Curiam)

Post-Conviction Relief—Trial counsel’s failure to prevent or remedy prosecutor’s impermissible cross-examination prejudiced petitioner

Prosecutor lacked a reasonable basis for cross-examining witnesses about petitioner’s purported prior bad acts. Post-conviction court erred in concluding that jury instructions, petitioner’s conduct, and evidence on rebuttal eliminated prejudice caused by trial counsel’s failure to prevent or remedy prosecutor’s impermissible cross-examination.

Petitioner/defendant, who was convicted of one count of first-degree sexual abuse, appeals from a judgment denying him post-conviction relief. On appeal, petitioner assigns error to the PCR court’s determination that, although trial counsel had performed inadequately in failing to prepare for and object to questions that the prosecutor asked of two defense character witnesses at trial suggesting that petitioner had an inappropriate relationship with an underage girl, petitioner was not prejudiced by those errors. In concluding that no prejudice occurred, the PCR court pointed to the trial court’s instructions to the jury regarding the questioning, petitioner’s conduct, which provided reasons for the jury to question his credibility, and the source of the hearsay statements, who testified to those statements later during trial.

The court concludes that prosecutor lacked a reasonable basis for his questions and that those questions prejudiced petitioner. The court also concludes that trial counsel’s errors prejudiced petitioner. Because the prosecutor’s questions were improper for any purpose, the only correct instruction would be one that told the jury not to consider the questions at all. But the trial court’s actual limiting instruction was ambiguous with respect to whether the jury could consider the conduct implied in the questions as affirmative evidence of petitioner’s bad character. The fact that the same evidence was presented during rebuttal also did not alleviate the prejudice because had counsel not preformed inadequately, the jury would never had heard the rebuttal testimony or the appellate court would have held that the trial court erred in allowing it and determined that the error harmed petitioner. Consequently, the court holds that the PCR court erred in denying petitioner post-conviction relief.

Holbrook v. Amsberry, 289 Or App 226 (2017) (DeHoog, J.)

Post-Conviction Relief—Inadequate Investigation of Penalty-Phase Mitigation Evidence

Trial counsel’s decision to forgo presenting mitigation evidence to the jury regarding the horrendous circumstances of defendant's childhood during penalty phase absent reasonable investigation into those circumstances fell below professional standards and prejudiced petitioner.

Petitioner/defendant, who was convicted of aggravated murder for killing a 12-year old girl and received a death sentence, petitioned for post-conviction relief claiming that he received inadequate assistance of trial counsel during the guilt- and penalty-phases of his trial. Specifically, petitioner claimed that trial counsel failed to adequately prepare to cross-examine the state’s pathologist, failed to retain and present evidence from a forensic pathologist, and did not timely retain a forensic scientist or call the forensic scientist at trial. Petitioner also claimed that he received inadequate assistance of counsel during the penalty phase because his trial counsel did not make a reasonable strategic choice to focus solely on the future dangerousness question because he did not adequately investigate potential mitigating evidence.

The PCR court denied relief as to petitioner’s guilt-phase claims, but granted relief as to his penalty-phase claim that his trial counsel’s decision to forgo presenting mitigating evidence to the jury was not supported by reasonable investigation and prejudiced petitioner. Petitioner appeals and superintendent cross-appeals from that judgment.

The court concludes that the PCR court did not err in concluding that trial counsel exercised reasonable professional skill and judgment in failing to hire a forensic pathologist where trial counsel had no reason to doubt the state’s pathologist’s expertise or credentials, his testimony was not controversial, and undermining it was not central to the defense theory. The evidentiary points that petitioner claims trial counsel failed to raise were addressed in other ways or were not significant enough that trial counsel was compelled to raise them. The court also concludes that the PCR court did not err in determining that trial counsel’s decisions with respect to the hiring and calling of the forensic scientist were adequate where petitioner failed to establish that the forensic scientist was hampered in her ability to adequately prepare for petitioner’s defense and the main points she would have testified to were addressed in other ways at trial.

The court further concludes that the PCR court did not err in concluding that trial counsel performed inadequately during the penalty phase. Petitioner presented a vast amount of evidence at his PCR trial regarding the horrendous circumstances of his childhood, which was available or reasonably discoverable at the time of his trial. Yet, trial counsel elected to forego presenting mitigating evidence having uncovered virtually no evidence of petitioner’s childhood and based on limited interviews of petitioner, two family members, and a review of the state’s discovery. Trial counsel’s decision to forego presenting mitigation evidence to the jury absent reasonable investigation into those circumstances fell below professional standards. That failure prejudiced petitioner because the mitigating evidence could have helped to explain petitioner’s actions and created a narrative that would have counterbalanced the state’s evidence of petitioner’s history of criminality and sexual assaults on women and children, which had gone unchallenged.

Sparks v. Premo, 289 Or App 159 (2017) (Ortega, P.J.)

PCR—PCR judgment—Remanded for PCR court to fashion relief that will cure petitioner’s actual prejudice

PCR judgment granting petitioner limited relief error where remedy in judgment fails to cure petitioner’s actual prejudice.

Petitioner/defendant appeals from a PCR judgment granting him limited relief on some of his claims by ordering that the judgment revoking his probation be amended to allow for Alternative Incarceration Programs (AIP). Petitioner pleaded guilty and received probation. He agreed that if his sentence were revoked he would receive 72 months’ imprisonment but would be eligible for AIP. Petitioner is not eligible for AIP based his crime of conviction, second-degree robbery. Petitioner later violated the terms of his probation and was revoked. He received 72 months’ imprisonment without eligibility for AIP. Petitioner sought post-conviction relief, contending that he received inadequate assistance of counsel at the revocation hearing, the revocation judgment breached the plea agreement, and that his plea was not knowing and intelligent. The post-conviction relief court amended the revocation judgment to make petitioner eligible for AIP. On appeal, petitioner alleges that the post-conviction court erred because he is ineligible for AIP and the Department of Corrections will not give the amended revocation judgment effect and asserts that the proper relief is to allow him to withdraw his plea. The Court concludes that the appropriate relief is not to reverse petitioner’s underlying convictions and allow him to withdraw his plea but to remand to the post-conviction court to fashion a remedy that cures petitioner’s actual prejudice.

Lujan v. Myrick, 288 Or App 763 (2017) (Ortega, P.J.)

Motion to Suppress—Preservation

When defendant moved to suppress all statements he made during an encounter with police, and trial court’s ruling only addressed suppression of defendant’s post-Miranda statements, defendant not required to again request suppression of pre-Miranda statements to preserve that issue for appeal.

State v. Schmidtke, 362 Or 203 (2017) (Per Curiam)

Motion to Suppress—Attenuation—Preservation

State failed to preserve argument that evidence discovered during unlawful extension of a traffic stop was attenuated from that illegality.

This is a consolidated appeal on remand from Oregon Supreme Court for reconsideration in light of State v. Unger, 356 Or 59 (2014). In its earlier decision, the Court of Appeals reversed and remanded the trial court’s judgments, holding that the trial court had erred in denying defendant’s motion to suppress evidence obtained during a warrantless search of a vehicle in which defendant had been a passenger. Evidence presented at the suppression hearing established that an officer stopped the Jeep in which defendant was a passenger because the brake lights were not working and because defendant was not wearing a seat belt. Defendant told the officer he was on parole for armed robbery. The officer obtained the identifications of the defendant and the driver, ran a records check, and requested backup. The officer retained the identifications and requested consent to search the Jeep, which the driver gave. The officer found drugs and scales during that search, which led to the state charging defendant with possession of methamphetamine.

Defendant challenged the search in the trial court, arguing that the officer unlawfully extended the stop when he asked for consent to search instead of proceeding with the traffic investigation. In response, the state argued that defendant did not have a protected privacy interest in the Jeep and, alternatively, that the officer would have discovered the evidence even if defendant had not been unlawfully detained. The trial court ruled that the officer had unlawfully extended the stop by requesting consent to search, but denied suppression on the ground that defendant did not have a protected privacy interest in the Jeep.

The parties essentially reiterated their arguments on appeal. The Court of Appeals reversed and remanded, holding that defendant had a protected privacy interest in the Jeep and that the officer unlawfully seized defendant when he ceased processing the traffic violation and requested consent to search and that the state had failed to establish that the evidence would have been inevitably discovered during the course of a lawful search based on the driver’s consent. The Court also held that the state had failed to prove that the evidence was attenuated from the unlawful detention. The state petitioned for review, and the Supreme Court vacated the court’s decision and remanded for reconsideration in light of Unger. On remand, the court concludes that it had unnecessarily held that the state had failed to prove attenuation because the state never argued attenuation in the trial court or on appeal. Thus, in view of the court’s earlier holdings that defendant had a protected privacy in the Jeep and the state failed to prove that the evidence would have been inevitably discovered, the court reverses and remands.

State v. Knapp, 289 Or App 139 (2017) (Duncan, J.)

Motion to Suppress—Warrantless Search—Scope of Search Incident to Arrest Exception

Search of defendant’s Jeep for two concealed guns lawful incident to defendant’s arrest for carrying a third concealed handgun.

Defendant appeals from a judgment of conviction for three counts of unlawful possession of a firearm and assigns error to the trial court’s denial of his motion to suppress evidence. An officer had initiated a traffic stop after observing defendant speeding. The officer saw defendant “doing a lot of motion,” before coming to a stop. After defendant’s Jeep came to a stop, defendant exited, against the officer’s repeated directions to stay in the car. The officer quickly detained defendant against the Jeep. The officer saw a machete through the window and found pistol magazines, an empty holster, and two knives on defendant. The officer asked defendant what was going on, and defendant said he had “an open carry going on.” The officer asked defendant if he had a permit, and defendant said no. At that point, the officer believed that defendant was in possession of an unlawfully concealed firearm. The officer asked defendant where the gun was, and defendant said nowhere and then in the car. After being handcuffed, defendant told the officer that there were two more guns in the Jeep. The officer asked about the location of the guns and then administered Miranda warnings.

Before trial, defendant moved to suppress. The trial court suppressed defendant’s statements after he was handcuffed, but not the guns on the basis that they were found in a lawful search incident to defendant’s arrest for carrying a concealed weapon. On appeal, the court concludes that the search for the two additional handguns were lawfully discovered incident to defendant’s arrest for carrying a concealed weapon. Under State v. Anfield, 313 Or 554 (2012), the officer’s search of defendant’s Jeep was permissible incident to his arrest for unlawful possession of a firearm even though the officer was searching for evidence of a new crime, not further evidence of defendant’s unlawful act of possession.

State v. Bladorn, 289 Or App 1 (2017) (Hadlock, C. J.)

Motion to Suppress—Warrantless Searches—Record insufficient to establish that blood alcohol dissipation constituted an exigent circumstance

State failed to prove that exigent circumstances justified warrantless search for blood-alcohol evidence where record contains no evidence as to rate alcohol dissipates from blood.

While looking for a car involved in a driving-related offense, an officer made observations from outside defendant’s fenced and gated property that gave him probable cause to believe that defendant had committed driving under the influence of intoxicants (DUII). The officer entered the property. He believed it would take hours to get a warrant and knew that alcohol dissipates from the blood. To establish its burden of proving the existence of exigent circumstances, the state was required to develop a record that would permit an assessment of whether, at the time he entered the property, the officer believed that the blood-alcohol evidence was at risk of complete dissipation in the time it would take to get a warrant. Because the record does not include any evidence of the amount of time that the officer reasonably believed it would take for the evidence to be lost, the trial court did not error in concluding that the state failed to prove the existence of an exigency.

State v. Perrott, 288 Or App 837 (2017) (Duncan, J.)

Motion to Suppress—Probable Cause of Traffic Violation—Failure to Drive Within a Lane

Officer had probable cause to stop defendant for failing to drive within a lane when defendant momentarily straddled lane line when her lane split from one lane into two lanes.

Defendant was driving down a road when her lane split into two lanes. Defendant briefly “straddled” the new lane before moving fully into the left lane. An officer stopped for violating, ORS 811.370, which requires a driver to operate a vehicle as nearly as practicable within a single lane. Evidence obtained during that stop led to evidence that defendant was driving under the influence of intoxicants. ORS 811.370 requires a driver to operate his or her vehicle entirely within a single lane unless (1) something (like a road hazard) makes it impracticable to do so or (2) the driver is moving from one lane to another and first makes certain that the movement can be made safely. Here, the officer had probable cause to stop defendant because nothing made it impracticable for her to stay within her lane when she completed the movement into the new left lane. The fact that defendant only momentarily crossed the lane marker is irrelevant.

State v. Husk, 288 Or App 737 (2017) (Aoyagi, J.)

Custodial Interrogation/Miranda—Compelling Circumstances

Detective’s statements that he had probable cause to obtain a warrant for defendant’s arrest and that he intended to arrest defendant if she did not cooperate in questioning created compelling circumstances.

Detectives went to defendant’s home to discuss recent thefts at a Safeway store. Both detectives were in uniform, wore badges, and drove marked patrol vehicles. When no one answered the door, the detectives called several times. When they finally spoke over the phone, defendant told the detectives that she did not want to speak with them because she was naked and sick. The detective who spoke to her gave defendant two options: if she spoke to him at her door, he would issue her a citation; if she refused, he would obtain a warrant for her arrest. Defendant agreed to speak to the detectives at her doorway. After repeatedly denying involvement in the thefts and being chided for her denials, the detective told her that defendant that she was under arrest. At that point, defendant said, “Fine, I’ll admit guilt.” The trial court reasoned that Miranda warnings were not required because defendant was neither in custody nor under compelling circumstances and because she did not admit guilt in response to a question. The Court concludes that the circumstances were compelling in light of the amount of pressure exerted on defendant during the interview, specifically the detective’s statements that he had probable cause to obtain a warrant for her arrest and indicating his intent to arrest her if she did not cooperate. Because defendant’s admissions derived from the constitutional violation and were not harmless, the trial court erred in denying suppression.

State v. Esquivel, 288 Or App 755 (2017) (Ortega, P.J.)

Sentencing—Probation Revocation—Consecutive Incarceration Sanctions

If the court revokes multiple probationary sentences for separate supervision violations, the court has the authority to impose concurrent or consecutive incarceration sanctions for each term of probationary supervision that is revoked.

Defendant appeals from a judgment revoking four terms of probationary supervision, three of which are to be served consecutively, based on defendant’s admission that he had committed two probation violations. Defendant argues that the trial court erred in imposing three consecutive terms of incarceration because he committed only two supervision violations. The court concludes that the text and context of the controlling rule, OAR 213-012-0040(2), gives the sentencing court authority to impose either consecutive or concurrent incarceration sanctions any time that more than one term of probationary supervision is revoked for separate violations.

State v. McFerrin, 289 Or App 96 (2017) (Tookey, J.)

Sentencing—$2,000 Fine for Third DUII, $255 State Obligation, $60 Mandatory State Amount—Plain Error

Trial court plainly erred in imposing $2,000 fine for defendant’s third DUII conviction because court erroneously believed that the fine was mandatory rather than discretionary when the sentence includes jail. Trial court failed to exercise discretion when imposing a $255 fine. Trial court had no authority to impose $60 mandatory state amount.

State v. Larson, 289 Or App 60 (2017) (Per Curiam)

Sentencing—Compensatory Fine—Plain Error

Imposition of a compensatory fine in addition to a punitive fine is plain error.

State v. Kellison, 289 Or App 55 (2017) (Per Curiam)

Sentencing—Resentencing—Increased sentence and scope of remand

Resentencing court did not error in imposing increased dangerous offender sentence where court articulated wholly logical, non-vindictive reasons for the increased sentence and initial sentencing court’s finding that defendant was a dangerous offender was binding under the law-of-the-case doctrine.

Defendant appeals a judgment of conviction and challenges the sentence he received on remand after a successful appeal. The Court of Appeals had concluded that a 280-month sentence imposed on one of defendant’s convictions was erroneous and remanded for resentencing. On remand, the resentencing court relied on the first sentencing court’s finding that defendant is a dangerous offender and, based on that finding, imposed a 30-year indeterminate sentence with a 120-month minimum determinate sentence.

On appeal, defendant again challenges his dangerous-offender sentence and makes two arguments. First, defendant argues that the increased sentence violates State v. Partain, 349 Or 10 (2010), because the record is insufficient to justify the increase. The court rejects that argument because the resentencing court articulated wholly logical, non-vindictive reasons for the increased sentence. Second, defendant argues that the resentencing court could not rely on the dangerous-offender designation of the initial sentencing court because defendant had not waived jury on remand. The court rejects that argument because defendant did not challenge the trial court’s finding in his first appeal and reversal of his sentence did not reverse the initial sentencing court’s finding that defendant is a dangerous offender.

State v. Rienke, 289 Or App 10 (2017) (Armstrong, P.J.)

Sentencing—Restitution—Type of victim for which court may award restitution to health insurer

ORS 137.103(4)(a) refers to the direct victim of a crime or violation, as distinguished from an indirect victim such as a family member. Defendant caused a head-on collision when trying to pass another vehicle, seriously injuring the other driver. Defendant was convicted of reckless driving and careless driving. The trial court ordered defendant to pay restitution to the injured driver’s health insurer for medical expenses incurred by the driver and paid by the insurer. On appeal, defendant challenges the restitution award on the grounds that the victim is not the type of victim for which payments to an insurance carrier are authorized under the restitution statute. ORS 137.103(4)(d) (permitting restitution to an insurance carrier that “has expended moneys on behalf of a victim described in paragraph (a) of his subsection”). Specifically, defendant argues the victims of crimes like reckless driving and careless driving qualify for restitution under ORS 137.103(4)(b), which permits the trial court to award restitution on behalf of “[a]ny person * * * whom the court determines has suffered economic damages as a result of the defendant’s criminal activities,” and not under ORS 137.103(4)(a), which permits the court to award restitution on behalf of “[t]he person * * * against whom the defendant committed the criminal offense.” Defendant argues that ORS 137.106(a) is limited to crimes that require injury to another person as an element of the offense. In view of the legislative history of ORS 137.106, the Court concludes that ORS 137.104(a) refers to the direct victim of a crime or violation, as distinguished from an indirect victim such as a family member. Because defendant’s crime directly caused the victim’s injuries in this case, the trial court correctly concluded that the other driver was a victim under ORS 137.103(4)(a) and that the restitution award to the insurance carrier was proper.

State v. Zuniga, 288 Or App 742 (2017) (Aoyagi, J.)