Oregon Appellate Ct - July 22, 2015

Latest revision as of 14:02, July 25, 2015

Search and Seizure – A Person Has a Protected Privacy Interest in the Private Entry Road to Their House If A Reasonable Person Would Feel Excluded

A person has a constitutionally protected privacy interest in their property outside the curtilage of their home if there is an objectively clear intent to exclude the public from that area. Whether a property owner or occupant has manifested an intention to exclude the public depends on a fact-specific inquiry into the nature of the property and the characteristics of the signs, fencing and other notices of exclusion. In this case, an officer followed defendant onto his property, past some no trespassing signs, because he reasonably suspected defendant of driving under the influence. The trial court found that the no trespassing signs were a "red herring". Because the reasonable suspicion was actually the red herring and the characteristics of the no trespassing signs were the central issue for whether the officer could go onto the property, the appellate court remands for further factual findings. State v. McKee, 272 Or App 372 (2015).

Prior Bad Acts – Traditional OEC 403 Balancing Remains Valid Despite Williams

Courts determining the admissibility of prior bad acts evidence may continue to apply the traditional OEC 403 balancing test because, although the Oregon Supreme Court decided in State v. Williams that the Due Process Clause of the Fourteenth Amendment requires such balancing, it did not decide whether balancing under due process differs from traditional balancing. Here, the trial court did not err in its balancing where it properly considered the relevance, probative value, and risk of prejudice of the evidence; issued a limiting instruction; and did not admit the evidence “wholesale and indiscriminately.” Remanded for resentencing on other grounds; otherwise affirmed. State v. Brown, 272 Or.App. 424 (2015).

Evidence - A Defendant is Always Entitled to Cross on Bias, Even When the Bias Relates to Otherwise Protected Juvenile Adjudications

The U.S. Constitution (6th Am.), the Oregon Constitution (Art I, sec 11) and OEC 609-1 all protect a defendant's right to attempt, on cross-examination, to show a witness's bias or interest. Here, the trial court erred by preventing the defendant from cross-examining a state's witness regarding the witness's incarceration at the time of the allegations and at the time of trial. Because such evidence could have indicated that the witness had reasons to testify falsely or was vulnerable to pressure from the state, the trial court's error prevented the jury from hearing a qualitatively different reason to distrust the witness's testimony, and therefore requires reversal. State v Nacoste, 272 Or App 460 (2015).

Prosecutorial Misconduct – Court Should Have Granted Mistrial Where DA Used Propensity Argument in Closing After Previously Being Admonished

The trial court should have granted a mistrial where the DA, having been repeatedly admonished for attempting to make propensity arguments, said in closing that, as a “drug dealer” and a “wife beater,” defendant was “kind of the exact guy you would expect to abuse his daughter.” The DA was admonished, the jury was instructed and then the DA again "argued that it was bad parenting by W’s and C’s mothers to have let their girls have contact with “somebody who uses methamphetamine” and who is “a known drug user” and that “[i]t’s really more proof that this actually happened.”" Neither the initial nor the subsequent instructions were sufficient to unring the bell; i.e., the instructions were insufficient to negate the impermissible and prejudicial inference that the state asked the jury to draw. Therefore, the judge abused his discretion in failing to grant the mistrial. Remanded for a new trial. State v Cox, 272 Or App 390 (2015).

Motion to Sever - Sex Abuse With 2 Victims - No Prejudice Even Though Defendant Testifying in One Case and Not the Other

The trial court did not err in denying defendant's motion to sever a sex abuse trial with two victims where defendant testified in one case and not the other. The court finds that, as in Gensler, the facts of the two cases were sufficiently distinct that there was unlikely to be significant confusion and the testimony problems were properly addressed by allowing defendant to testify in only one case, limiting the state's cross-examination and instructing the jury regarding defendant's right not to testify. State v Cox, 272 Or App 390 (2015).

Sentencing Modification – Defendant Has a Right to Be Present for a Non-Mandatory Change To a Sentence

Where a change to a sentencing judgement is discretionary, rather than mandatory, it is error for that change to be made without defendant's participation. Defendant’s sentence was modified by a written judgement to deny earned time on each of his felony convictions for the first 144 months, but other language in the judgment appeared to deny earned time credit for the entirety of defendant’s 342-month sentence. Because the asserted error became apparent for the first time only after the written judgement modified the sentence, the defendant is able to raise the objection for the first time on appeal. Remanded for resentencing. State v Horner, 272 Or App 355 (2015).

Stalking Order – Where an Expressive Contact Does Not Objectively Communicate Intent to Harm, the Contact is Not a “Threat” and Thus Not a Qualifying Contact

“Although respondent’s communications were unwanted and some were sexual in nature or expressed an intention to contact petitioner in person, they did not suggest that respondent would engage in unlawful or violent conduct.” Respondent had not been physically violent toward petitioner nor anyone else. The expressive contacts included text messages that said respondent would stay at petitioner’s house until she returned and that he wanted to “[lie] naked with [her]. These expressions did not create an objectively reasonable “fear of imminent and serious personal violence” and thus, did not qualify. S.J.R. v. King, 272 Or App 381 (2015).

TPR - Parent Must Be In Contact With the System to Excuse a Failure to Appear at a Termination Hearing

A parent who deliberately breaks contact with her attorney, DHS, and the court before a dependency proceeding of which she is aware cannot invoke the doctrine of "excusable neglect" when her subsequent failure to appear triggers the termination of her parental rights. Excusable neglect is "a parent's reasonable, good faith mistake as to the time or place of the dependency proceeding." It does not include a situation where the parent has lost contact with DHS and the defense attorney. In the case at hand, the mother was aware of the date of the hearing for approximately four and a half months before the hearing. She left the state but did not inform her attorney or DHS as to her location or contact information until she contacted the court, her attorney, and DHS via letter ten days before the hearing. The letter gave only an address in WA where she could be reached. The attorney wrote her, informing her that she needed to contact him immediately, and she did not respond. Thus, despite her letter, mother did not have sufficient contact with DHS, the court or her attorney to establish a reasonable, good faith mistake. DHS v. K.M.J., 272 Or App 506 (2015).

TPR – Terminating the Rights of an “Unfit” Parent is Not Necessarily “In the Best Interest of the Child”

Factors to apply in the required “best interest of the child” analysis that may weigh against terminating parental rights—even when the parent is found to be “unfit”—include: the child’s strong attachment to the parent, a positive and nurturing relationship between parent and child, and a risk of extended mourning that would hinder the child’s attachment with a new family. Here, despite the court’s finding that the parent was “unfit” (importantly there was no abuse), there was not clear and convincing evidence that terminating parental rights was “in the best interest of the child” based on the above-mentioned factors. DHS v. M.P.-P., 272 Or App 502 (2015).

TPR – The Basis For Termination of Parental Rights May Not Exceed the Basis for Jurisdiction

Where the state expands the allegations for termination of parental rights beyond the basis for jurisdiction, the question on appeal is whether the termination was based on allegations consistent with the jurisdictional allegations. Here, the court finds that DHS did inappropriately expand the allegations in the termination petition. But because 5 of the allegations at TPR were materially indistinguishable from the initial jurisdiction petition, there was a valid foundation for terminating parental rights. DHS v. J.C.H., 272 Or App 413 (2015)

Dependency Jurisdiction – Narcolepsy and Substance Abuse Do Not Constitute Legally Sufficient Evidence of Nonspeculative Harm

Per curiam. A mother’s narcolepsy combined with both parents’ substance abuse does not necessarily create a nonspeculative risk of harm to the child, and therefore presents insufficient grounds for the juvenile court’s taking jurisdiction of the child. Reversed. Dept. of Human Services v. J. L. M., 272 Or.App. 566 (2015).

Dependency Jurisdiction – Joint Custody With Unfit Parent and Substance Abuse Do Not Constitute Legally Sufficient Evidence of Nonspeculative Harm

Per curiam. Neither sharing joint legal custody with an admittedly unfit parent, nor substance abuse, is sufficient grounds for the juvenile court’s taking jurisdiction over a minor child, absent a showing that either of these conditions created a nonspeculative risk of harm to the child. Reversed. Dept. of Human Services v. C. A., 272 Or.App. 569 (2015).

Appellate Procedure – Failure to Give a Prior Bad Acts Instruction Is Not Plain Error Because The Law Is Currently Unsettled

Under a plain error analysis, the failure to give the sort of bad-acts jury instruction approved in State v Leistiko is too interconnected with unsettled law. The Court analyzes State v. Williams and concludes that, because OEC 404(4) supersedes the OEC 404(3) exclusions of prior bad-acts evidence for criminal defendants, the questions pertinent to requiring a Leistiko instruction shift to involve OEC 403 balancing and other Due Process arguments under the state and federal constitutions. Determining when a Leistiko analysis is required under the Williams framework for OEC 404 is not a settled question. Because the question is not settled, defendant cannot rely on plain error or the subsequent developments in State v. Leistiko because his arguments at the trial court were categorically different, focusing primarily on whether the prior bad acts were similar, not whether they were relevant. State v Horner, 272 Or App 355 (2015)

Parole Hearing – Board of Parole May Place Limits on Who Can Accompany an Inmate at a Hearing

On its face and consistent with legislative intent, ORS 144.123 gives the Board of Parole statutory authority to “place limits on people [an] inmate may select to attend a board hearing” as set forth in OAR 255-030-0025 and OAR 255-030-0026. Here, defendant contends that an inmate has a “right” to bring any person of his choice to such a hearing. The Court disagrees and states that the “inmate’s choice must be in compliance with and to the extent authorized by the administrative rules.” Furthermore, defendant contends that the rule was not “promulgated jointly” by the Board of Parole and the Department of Corrections as required by the statute because each agency created its own rule at a separate time. The Court disagrees, finding that the term “rule promulgated jointly” is an “inexact term” and the rule must only recognize “that both agencies have an interest in regulating attendance at board hearings…and ensur[e] that those regulations set consistent criteria for attendees.” Smith v. Board of Parole, 272 Or App 493 (2015).

Parole Board Hearings - Impaired Petitioners Are Entitled to Both Appointed Assistance and a Personal Representative

At Parole Board hearings, petitioners who are "incapable of presenting their position due to language barriers, mental or emotional incapacity or educational deficiency" are entitled to have both an appointed legal assistant and another person of their choosing speak on their behalf. Per OAR 225-30-025, prisoners who are "incapable of presenting their position" at a hearing will be provided with assistance. The assistance, however, "shall not preclude the prisoner being accompanied to the hearing by a person of the prisoner's choice." Here, the Parole Board required the petitioner to choose between having his mother or his appointed legal assistant speak at his exit interview, and decided the legal assistant's presence and off-record conversations with petitioner counted as "assistance." However, the court finds that "assistance" provided to those "incapable of presenting their position" necessarily includes speaking to the Board on the petitioner's behalf. Reversed and remanded. Hartwell v. Board of Parole, 272 Or.App. 332 (2015).