Oregon Appellate Ct - Aug. 19, 2015

Latest revision as of 09:58, August 27, 2015

Disorderly Conduct - A Smell Need Not Be Harmful To Be a Physically Offensive Condition

To constitute a physically offensive condition under ORS 166.025, an odor must be more than minimally unpleasant but need not be dangerous or harmful. To determine whether a reasonable person would consider the smell to be sufficiently offensive requires an analysis of the nature of the odor, its frequency duration and intensity and the circumstances under which it is smelled. Here, a search warrant affidavit failed to establish probable cause of an offensive condition where it described a marijuana smell wafting over to bordering units in a triplex 2-3 times a week. Marijuana itself is a neutral smell which some find pleasant and some find unpleasant. The fact that it was going into people's houses weighed in favor of it being offensive. But the warrant was basically silent regarding duration and intensity: "And the absence of information about those factors makes it impossible to assess whether, under the totality of the circumstances, the odor probably was more than minimally unpleasant". State v Lang, 273 Or App 113 (2015).

Kidnapping – Secret Confinement - Another Person’s Knowledge of Victim’s Location Is Only a Defense if the Person Would Reasonably Be Expected to Aid Victim

Kidnapping, under ORS 163.225(1), requires that the defendant have "secretly confined the victim in a place where that person is not likely to be found" by someone who could reasonably be expected to assist the victim. Here, the victim was kept in defendant’s house for two days where she was beaten and sexually abused. When the police ultimately came to the house, defendant concealed victim in his bedroom and covered her in bedding to hide her from police. The fact that defendant's two friends came in and out of the house and knew the victim was at the house was not sufficient to defeat the element of secret confinement since the friends were not inclined to notify the police. Thus, a fact finder could decide that the location was a place where the victim was secretly confined and not likely to be found. State v. Kawamoto, 273 Or App 241 (2015).

Unlawful Sexual Penetration – Forcible Compulsion - Extended Violence Towards Victim Creates a Sufficient Causal Connection Between Force and Penetrative Act

To prove forcible compulsion for unlawful sexual penetration, the state must prove not only that defendant penetrated the anus, vagina, or penis of the victim with an object but that he compelled the victim to submit to that act by either physical force or threats. Here, the defendant repeatedly beat the victim with a baseball bat and inserted the bat into her anus. Such an extended episode of violence directed at the victim is sufficient for the fact finder to infer a causal connection between defendant’s assaultive behavior and the penetrative act at issue to satisfy either the physical force or implied threats prongs. State v. Kawamoto, 273 Or App 241 (2015).

Choice of Evils - Imminence - A Realistic Threat of Serious Harm is Not Imminent Enough If The Timing Is Vague

A specific, credible threat of serious injury that could be carried out at any time is not sufficiently imminent to assert the defense of choice of evils. The threat must be "immediate" in the sense of being "ready to take place" or "near at hand". Here, defendant was a prison inmate who had been told that his life was in serious danger from a skinhead gang who thought he was a snitch. Thus, he armed himself with a sharpened toothbrush, a prohibited weapon. But because there was no timing associated with the threat and no way to tell when violence might occur, the threat was insufficiently imminent, even if absolutely true, to suffice for either choice of evils or self-defense. State v McPhail, 273 Or App 42 (2015).

Voluntary Act - Mental Illness Is Only Relevant to Voluntariness in a Crime of Omission If It Goes to Defendant's Capability of Performing the Required Acts

Where a crime is based on a failure to act, the voluntary act requirement means that the defendant must fail to perform an action that the defendant is “capable of performing.” Defendant's mental illness is only relevant to the question of whether there was a voluntary act in a neglect case where the mental illness evidence tends to prove that the defendant was incapable of performing the required acts. Here, defendant was charged with animal neglect and sought to introduce evidence that, due to her Obsessive Compulsive Personality Disorder (OCPD) she involuntarily acquired a large number of cats. The court holds that a compulsion to acquire cats does not tend to prove that defendant was incapable of performing the bodily movements required to care for her cats. Thus, evidence of OCPD was not relevant to the question of whether there was a voluntary act. Also, a person is still able to perform a voluntary act, even in the absence of alternative courses of action. Thus, defendant's financial inability to provide adequate care for her cats does not lead to the conclusion, in and of itself, that there was not a voluntary act in the failure to provide veterinary care or sufficient food. State v. Hess, 273 Or App 26 (2015)

Search and Seizure - Exploitation – Warrant Discovery Does Not Automatically Cure Police Misconduct under Article 1, section 9

Extending the reasoning of State v. Bailey (a Fourth Amendment case) to Article 1, Section 9 of the Oregon Constitution, courts must now apply the five factor exploitation analysis under State v. Unger to determine whether the discovery of an outstanding warrant attenuates the taint of prior unlawful police conduct. The court disavows State v. Snyder, 72 Or App 359, rev den, 299 Or 251 (1985) (holding that the discovery of a warrant purged the unlawful police conduct under Article 1, section 9). Here, the defendant was unlawfully stopped when the officer approached the defendant, inquired into the defendant’s identification, and then told the defendant to “hang on a second” when the defendant wanted to leave to go to the bathroom. The officer admitted that there was no reasonable suspicion of criminal activity. The officer then ran defendant’s name for a record’s check and discovered an outstanding warrant. Because the state failed to prove attenuation from the unlawful stop in accordance with the five factors, the discovery of the warrant did not cure the police misconduct. The five Unger factors are: (1) the temporal proximity between the unlawful police conduct and the discovery of the challenged evidence; (2) the presence of mitigating circumstances; (3) the presence of intervening circumstances; (4) the purpose and flagrancy of the unlawful police conduct; and (5) the nature, extent and severity of the constitutional violation. State v. Benning, 273 Or App 207 (2015)

Discovery of a Warrant - Attenuation - a Federal Bailey Analysis

Defendant was stopped by a Trimet officer for a fare inspection. The trimet officer suspected the defendant was providing a false name and escorted him to another officer, who started a new investigation of providing false information to an officer. The defendant admitted to giving a fake name, provided his real name, and a warrant was discovered. The officer subsequently discovered incriminating evidence pursuant to a search incident to arrest. Because the Oregon constitutional arguments were unpreserved, the court applied the three-prong federal analysis from Bailey to determine whether the discovery of the warrant was attenuated from the unlawful seizure (the court assumed but did not decide that the stop was unlawful):

(1) Temporal Break: there was no temporal break between the unlawful seizure and the challenged evidence, which weighs in favor of suppression;

(2) Intervening Circumstances: While the discovery of the arrest warrant was the direct consequence of the unlawful detention, the officer was not on a searching expedition for a warrant and therefore this factor bears only some weight in favor of suppression;

(3) Purpose and Flagrancy: the misconduct was not purposeful or flagrant because the unlawfulness of the seizure was not obvious to the officer, as the officer was confronted with an individual who had given and then admitted to providing a false name. This factor weighs against suppression.

Balancing the factors, the court concludes that the discovery of the warrant was sufficiently attenuated from the unlawful seizure. State v. Mitchell, 273 Or App 207 (2015)

Probable Cause – Looking at One's Phone Is Not Probable Cause of Driving While Using A Mobile Device

A person "uses" a phone for the offense of Operating a Motor Vehicle While Using a Mobile Communication Device (ORS 811.507(2)) if the person uses a phone for the specific acts of voice or text communication. Here, after observing the defendant hold a device that emitted light for ten seconds and look down twice at the device while driving, a trooper pulled the defendant over for violating ORS 811.507. (The defendant was ultimately arrested for DUII.) Without more, merely looking down at a mobile device while driving does not violate ORS 811.507. Thus, the officer’s observations did not rise to the level of probable cause necessary for a stop. Reversed. State v. Rabanales-Ramos, 273 Or App 228 (2015)

Merger - Animal Neglect - Each Animal is a Separate Victim

Each animal in an animal neglect prosecution is a separate victim for the purposes of merger. Oregon’s anti-merger statute, ORS 161.067(2), provides that “when the same conduct or criminal episode through violating only one statutory provision involves two or more victims, there are as many separately punishable offenses as there are victims.” Here, defendant argued her cats were her property and, therefore, that her 45 counts of animal neglect should be merged into a single conviction. The court adopts the reasoning of State v. Nix (a vacated Supreme Court case) and rejects defendant's argument. When the animal neglect statutes are violated, for purposes of the anti-merger statute, each animal neglected is a separate victim. State v Hess, 273 Or App 26 (2015)

PCR - Extrinsic Threats of Prosecution in Plea Negotiation Do Not Create an Involuntary Plea

A plea is not involuntary "as a matter of law” merely because of a prosecutor’s extrinsic threats or promises in plea negotiation. Here, defendant pled guilty to avoid his family being charged with witness tampering and their security forfeited. The possibility that the defendant decided to accept the plea offer despite being innocent does not itself make the plea involuntary, whether because of factors intrinsic to the prosecuted case or because of factors outside the formal case:

"that unsettling reality is inherent to the plea-negotiation process, which has been deemed 'crucial to the proper functioning of the criminal justice system.’"

Berg v Nooth, 273 Or App 97 (2015)

Post-Conviction DNA Testing - Petitioner Must Identify Specific Evidence To Be Tested

A trial court is not required to order post-conviction DNA testing under ORS 138.690 unless the petitioner identifies specific evidence to be tested. Here, the pro se petitioner requested that DNA testing be performed on "bodily fluids, sperm, reproductive cells, saliva". Since the petitioner did not articulate any evidence where the genetic material might be located, the statutory requirements were not met. State v Thunderbird, 273 Or App 256 (2015)

TPR - Serious Detriment - A Parent's Condition Can Be Seriously Detrimental to a Child Even If No Harm Has Yet Been Suffered

The apparent wellness of a child at the TPR trial is not determinative of whether a parent's conduct or condition is seriously detrimental to the child under ORS 419B.504. Here, the court determines that, despite the fact that the child was doing well in foster care, serious detriment existed because of:

"mother’s unmanaged drug use, including admitted daily marijuana use that interferes with her ability to address her mental health conditions and makes her ADHD worse, as well as a suspicious inability to provide useable urine samples for the last two years; long-term mental health conditions, including untreated ADHD and a borderline personality disorder, which have manifested, and continued to manifest at the time of trial, in a chaotic and unstable lifestyle; failure to provide any thought-out plan for reunification, stable housing, or source of support for her and A; failure to learn parenting skills; and an inability to commit to a long-term adjustment of her circumstances through participation in services."

DHS v EN, 273 Or App 134 (2015).

The Law of the Case Doctrine Bars Arguments on Issues Decided By an Appellate Court in the Same Litigation

The law of the case doctrine provides that when a ruling has been made in a particular case by an appellate court, while it may be overruled in other cases, it is binding and conclusive both upon the inferior court and appellate court in any further proceedings in the same litigation. Here, the Court of Appeals had determined that the victims in this case were the children depicted in the downloaded images that were the basis of the 15 counts of first degree encouraging child sexual abuse. The case was remanded for sentencing to determine if any of the counts merged. On remand the defendant argued that to constitute a victim the state must establish the actual identity of the person. The trial court properly rejected this argument, because the Court of Appeals had ruled that the children in the images in this case were victims for the purpose of the merger analysis. State v Reeves, 273 Or App 37 (2015)

Preservation on Remand - Attenuation vs Exploitation

On remand from the Supreme Court, in light of Unger, Lorenzo and Musser, the state argued for the first time that defendant’s consent to search was not a product of the unlawful extension of the stop because the extension “did not directly reveal information that prompted the request for consent to search” and the unlawful conduct “was minimal in duration and severity.” The court declines to consider the state’s alternative basis for affirming the trial court’s denial of the motion to suppress, because had the state raised the exploitation issue with the trial court the record might have developed differently. State v Fowler, 273 Or App 20 (2015)