Oregon Appellate Ct - Oct. 15 2014

Latest revision as of 11:21, October 29, 2014

Traffic Stop – Passenger Not Stopped When He Should Reasonably Feel Free to Leave

Officers do not stop a passenger during a lawful traffic stop when they are only seeking passenger’s cooperation and identification and do nothing to convey to passenger that he is not free to terminate the encounter. Here, officers asked defendant/passenger for his ID, whether he had any warrants or weapons, and to exit a truck that was about to be towed. Because the officer did not draw his weapon, raise his voice, or speak in a confrontational manner, a reasonable person would not feel like their liberty was being restrained. State v. Parker, 266 Or App ___ (2014).

Hearsay Exception – Statement Admitted Through OEC 803 Must Be Precisely Identified

The state complies with OEC 803(18a)(b), the hearsay exception for the admission of statements made by a child victim of sexual abuse, when it provides defendant with 1) notice of the date on which the statements were made; 2) the place where the statements were made; 3) where the statements could be found in previously discovered material. Here, the state intended to offer the complete statement of complainant captured on a discovered DVD. Because the defendant knew what evidence the government wanted to introduce and how they would introduce it, the state had complied with the notice requirements of OEC 803. State v. Phillips, 266 Or App ___ (2014).

Hearsay Exception – Continued Stress From A Threat of Death Extends Excited Utterance

The excited utterance exception applies, despite a lapse in time, when “1) the startling events were threats of death and 2) the continuing fright of living with the defendant prolonged the period under which the victim was under the stress of that event.” Here, defendant choked and threatened to kill complainant by holding a knife against complainant’s stomach. Defendant remained with the complainant for 24 hours after the initial assault, accompanying her to both the hospital and to a school appointment. Following the appointment, complainant’s aunt picked her up at which point the complainant began crying and shaking as she told her aunt about the assault and threat. Because complainant’s statements to the aunt “were made under stress of the excitement caused by defendant’s violence,” which was prolonged by the defendant’s continued presence near the complainant; the statements fell under the excited utterance exception. State v. Underwood, 266 Or App ___ (2014).

Expert Testimony – Police Observations of Intoxication Is Not Scientific Testimony

Police observation of drug impairment based on training and experience is not scientific testimony. Here, an officer testified that he recognized defendant was under the influence of marijuana when he noticed that defendant had dilated pupils and red, puffy “spider web” eyes. Because the officer’s testimony did not draw on scientific principles, but rather from his training and experience, it was not expert scientific testimony, but non-scientific expert testimony admissible under OEC 702. State v. Wilson, 266 Or App ___ (2014).

Right to Silence – Refusal To Speak To Cops Cannot Be Used As Indication of Guilt

Even where defendant opens the door to evidence concerning his silence, prosecutors are only allowed to “use that evidence to rebut any misimpressions created by the defendant,” they cannot argue “that defendant’s refusal to speak to the police [is] evidence of guilt.” Here, prosecutor used defendant’s refusal to speak to the police as one of four principle reasons that defendant was guilty of murder. Because the prosecutor commented on defendant’s invocation of the right to silence at least three times during her closing there was a high likelihood that the jury would draw a “prejudicial inference from the prosecutor’s references to defendant’s invocation.” Such prejudice required a new trial. State v. Reineke, 266 Or App ___(2014).

Theft – State Only Need Prove Some Value For Theft 3

Under ORS 164.055, dealing with the statutory presumption of value in theft cases, the state need not prove that stolen property had a specific dollar value to get a conviction for Theft 3 so long as it proves that the property has some value. Here, because the state was able to show that complainant had contracted to sell the stolen material, the state was able to show that some value would have been paid for the stolen material, thus fulfilling the value requirement of Theft 3. State v. Waterhouse, 266 Or App ___ (2014).

Merger – Offenses merge when each offense has an element that the other lacks

“When the same conduct violates two different theft statutes, but those two statutes do not each require proof of an element that the other does not . . . the theft offenses merge.” Here, defendant was charged with one count of organized retail theft and nine counts of first-degree theft. Although organized retail theft includes elements that first degree theft lacks, because first degree theft does not require proof of an element not included in the retail theft statute, the first degree counts were subsumed into the retail theft count and should have merged. State v. Fujimoto, 266 Or App ___ (2014).

Permanency Plans – TPR Judgment Set Aside After Permanency Plan Was Reversed

A termination of parental rights (“TPR”) judgment must be based on the most recent permanency plan, even if the most recent plan would only maintain or continue a prior permanency plan. Here, the juvenile court initially entered a permanency plan in 2011. That same year, DHS initiated proceedings to terminate parental rights. In 2011, however, the juvenile court issued a second permanency judgment continuing the initial permanency plan. In 2013, subsequent to a TPR trial, respondent -parents lost their parental right. Several months after the TPR trial, the COA reversed the second permanency judgment. Because the TPR judgment was based on the second, invalid permanency plan, the juvenile court did not err in granting parent’s motion to set aside the judgment. Dept. of Human Services v. M. H., 266 Or App ___ (2014).

Merger – Trial Court Must Decide Merger Before Considering Consecutive Sentence

Trial court is required to determine whether counts merge before deciding the issue of whether multiple convictions should be served consecutively or concurrently. Here, trial court failed to merge five counts of Unlawful Use of a Weapon that resulted from one episode by declining to rule on whether there were multiple victims or just one. Instead, the court found that multiple gunshots created additional harm and used that as the basis to have the convictions on each count to be served consecutively. The trial court was in error because the trial court was required to determine if counts merged first. State v. Stanton, 266 Or App ___ (2014).

Speedy Trial – Delay Due To Defendant’s Flight Reasonable When Pursued By Authorities

Delay is reasonable when it is caused by defendant’s flight and the investigating authorities were diligent in trying to locate defendant. Here, defendant fled Oregon after learning about allegations of sex abuse. Following indictment in 2003, an all-states arrest warrant was issued. Oregon detectives asked the LA County Sheriff’s Department to monitor what they believed was defendant’s residence. Defendant was arrested in 2011. Because the delay between indictment and arrest was caused by defendant’s flight and Oregon law enforcement was vigilant in trying to apprehend him, the eight year delay was reasonable. State v. Berrellez, 266 Or App ___ (2014).

Per Curiam - DUII Fees And Unitary Assessment Do Not Apply To Reckless Driving $500 unitary assessment for reckless driving does not apply to offenses committed after January 1, 2012. Nor does the $130 DUII conviction fee under ORS 813.020 apply to reckless driving convictions. State v. Cleaver, 266 Or App ___ (2014).