Oregon Appellate Ct. - Feb. 4, 2015

Latest revision as of 11:22, February 9, 2015

Initiating a False Report – Applies to Person Who Knowingly Causes Another to Transmit Report

A person initiates a false report when the person knowingly causes a false report to be transmitted to an organization that deals with emergencies involving danger to life and property. Here, defendant told his dad he had been kidnapped and, against his wishes, dad called the police. The defendant then told the detective, who came to take the report, the same story. The detective warned defendant several times that, based on the allegations, she would have to call out the Major Crime Team at great expense. And if the defendant’s allegations turned out to be false, she would cite him for initiating a false report. Defendant stuck with his false story. Because defendant “repeatedly and falsely asserted” to the detective “that he had been kidnapped, he knowingly initiated a false report which was transmitted to the Major Crime Team, an organization that deals with emergencies involving danger to life or property.” State v. J.L.S., 268 Or App 829 (2015).

Computer Crime – Limited Access as Part of Employment is Not Necessarily Authorized General Access

Having limited physical access to a computer system as part of one’s employment is not the same as “authorized access” under ORS 164.377(4), dealing with computer crime. Here, defendant used a lottery terminal at her work to print out and validate lottery tickets during her shift without paying for them. Although employer had given defendant limited access to the terminal in order to sell lottery tickets and to validate tickets for customers, defendant lacked authorization to use the terminal more generally or to purchase and validate her own tickets while on duty. Because no evidence was presented that defendant could access the terminal apart from serving customers, there was sufficient evidence to conclude that defendant accessed the terminal without authorization. State v. Nascimento, 268 Or App 718 (2015)

Scientific Testimony – SCEA is a Valid Scientific Instrument

In cases concerning the ability to consent to sexual activity, expert testimony about the Sexual Consent and Education Assessment (SCEA) is scientifically valid and admissible because:

1) the assessment was developed through input from hundreds of doctorate level practitioners;

2) the witness had a doctorate in clinical psychology and had been practicing in Oregon since 2006 and had educated herself on the SCEA;

3) the tool was developed “specifically to evaluate the ability of a person to consent to sexual activity”;

4) the SCEA has a lengthy protocol with built-in safeguards to prevent error;

5) the tool has been extensively reviewed;

6) the SCEA has been used since 1993 and reviewed with approval,

7) and, due to the assessments extensive protocol, the test is not wholly subject to the assessor’s subjective interpretation.

State v. Reed, 268 Or App 734 (2015).

Expungement - An Expunged Out-of-State Conviction is Not a Conviction

(1) An expunged out-of-state conviction is not a conviction under the eligibility rules of Oregon's set-aside statute. (2) Criminal acts that occur prior to a conviction petitioned to be set aside are not "behavior and circumstances since the time of conviction." The relevant timeline is as follows:

• June 2006: Oregon arrest for delivery of marijuana
• June 2006: Washington arrest for manufacturing marijuana
• Nov. 2006: Oregon conviction for delivery of marijuana
• Jan. 2007: Washington conviction for manufacturing marijuana
• July 2013: Washington conviction expunged
• Aug. 2013: Oregon petition to set aside

The fact that the Washington conviction occurred after the Oregon conviction is irrelevant. A petition to set aside a conviction may only be rejected for criminal behavior if the behavior occurs after the conviction. Here, the behavior occurred before the conviction and may not be considered. The fact that the Washington expungement would still be considered a conviction if it occurred in Oregon is also irrelevant. The Oregon set-aside statute is very clear that only convictions set aside under the Oregon statute should still be considered as convictions for the purposes of the set-aside statute. Thus, at the time of the Oregon petition to set aside the conviction, there was no prior conviction and no relevant behavior and circumstances since the time of conviction. Which means the court was required to grant the petition. State v Larson, 268 Or App 802 (2015).

Expungement - A Second Public Indecency is Not Eligible

A second public indecency conviction is a sex crime and, therefore, ineligible to be set aside. Even if the first public indecency is set aside. "Sex crime" has the same definition under ORS 137.225 as it does under the sex offender registration statute. If the crime was a sex crime at the time of conviction, it cannot later cease being a sex crime. Thus, it continues to be a sex crime even if the first public indecency is set aside. State v Tucker, 268 Or App 723 (2015).

The Parole Board Has Authority to Revisit It's Rulings

The Parole Board has authority to revisit a determination made at a time when it was operating under a mistaken understanding of the law. Here, the Parole Board "resummed" prison terms for robbery and kidnapping that it had previously "unsummed" when it thought that the prisoner would serve at least 360 months on his conviction for aggravated murder. The board was allowed to revisit the decision after an appellate case changed their understanding of how much time the prisoner would serve. Washington v Board of Parole, 268 Or App 774 (2015).

DUII Diversion Fees - Failure to Consider Ability to Pay is Not Appealable

The trial court's ruling that DUII diversion fees are not waivable for indigency is not an appealable issue. ORS ___ ___. Because a judge is allowed to, but not obligated to, consider ability to pay in determining whether to waive diversion fees, it is not a situation where the fees exceeded the maximum allowed by law. As opposed to attorney fees in a criminal case, for example, where the court may only impose the fees if there is evidence of ability to pay. Here, a failure to consider ability to pay, even when based on an erroneous ruling, does not mean the fees were greater than is legally allowed. Note, however, that the AG conceded in this case that the DUII diversion statute does allow for fees to be waived. So that argument should be made to the trial court, regardless of whether it's appealable. State v Soto, 268 Or App 822 (2015).

IAC – Preponderance Standard to Prove Prejudice Where Guilty Plea in Trial Court

To prove prejudice on an IAC claim where the defendant-petitioner pled guilty in the trial court, the defendant-petitioner must show, in the post-conviction court, “by a preponderance of the evidence, that he or she would not have entered the guilty plea were it not for counsel’s inadequate assistance.” Here, the post-conviction court applied an incorrect standard in determining whether petitioner-defendant was prejudiced when the court found that trial counsel’s mistaken advice had a “tendency” to “affect petitioner’s decision to accept the plea offer.” The remedy is to remand to the post-conviction court to apply the correct standard. Cox v. Howton, 268 Or App 840 (2015).

IAC – 20 Years Not Disproportionate for Firing into Car Full of Passengers

It was not ineffective assistance of counsel where petitioner was not prejudiced by the failure to raise a disproportionality challenge that would not have been successful. The trial court sentenced petitioner to two consecutive ten year terms for attempted aggravated murder after defendant fired into a car carrying six passengers. The crime was grave and severe, and therefore not disproportionate, because

• Petitioner pursued another car,
• did nothing to avoid confrontation with the occupants of that car,
• even if he believed he saw a gun, he did not see any of the occupants try to use the gun,
• when petitioner’s car stopped he opened fire on a car with six people, at close range, using a semiautomatic weapon, with the intent to kill more than one of the occupants.

Although petitioner’s conduct did not involve planning, plotting, or conspiring, it was still sufficiently grave to warrant a ten year sentence. Second, the sentence is not disproportionate to other related crimes, e.g. Manslaughter 2. Lastly, the lack of any criminal history alone does not render an “otherwise constitutional penalty disproportionate.” As such, the sentence was not disproportionate.Real v. Nooth, 268 Or App 747 (2015).

Imposition of Fees – It is Not Plain Error, Where Court is Required to Consider Ability to Pay, to Make No Findings on the Matter

It is plain error to impose indigent defense contribution and attorney fees in the absence of evidence that the defendant is able to pay because such fees may not be imposed unless the defendant is able to pay. It is not plain error, however, to set a fine where the statute only requires the judge to consider the financial resources of defendant. Whether information is considered is not a finding that needs to be made on the record. ORS 161.645. State v. Wheeler, 268 Or App 729 (2015)