Oregon Appellate Ct. - Feb. 11, 2015

Revision as of 17:10, February 13, 2015

Search & Seizure – No Expectation of Privacy in Structure Erected on Sidewalks

A person has no reasonable expectation of privacy “in a temporary shelter erected on public space unless the governmental entity controlling the space has either authorized the structure or, over a period of time acquiesced to the structure’s existence.” Here, because defendant’s tarp shelter violated a city ordinance by encroaching two feet onto a public sidewalk and he had been told to remove the structure, defendant had no protected privacy interest in the shelter when a week after he was told to remove it, officers lifted the tarp and saw defendant with a meth pipe. State v. Tegland, 269 Or App 1 (2015).

Restitution – Goods Stolen From Retail Space are Valued at Retail Prices

To determine the market value of a stolen item for the purposes of restitution, a court looks at the time and place of the theft. Here, defendant stole fifteen pairs of jeans from Macy’s. Because the “jeans were stolen from shelves in the retail space, where they were available to customers for sale,” the market value of the jeans is their retail value, not the wholesale value. Thus, instead of being required to pay $539.70 in restitution, the wholesale value, defendant had to pay $1,020 in restitution, the retail value. State v. Islam, 269 Or App 22 (2015).

Indictment – Move to Elect What Conduct the State Wants to Prove at Trial in Generalized Indictment

Demurrer on a generalized indictment is not sufficient for a court to dismiss the indictment. Rather, it is the defendant’s burden to move, pre-trial, for the state to elect what specific acts it is seeking to prove at trial.

Here, a grand jury returned an indictment for four counts of Sex Abuse I and four counts of Sodomy following state’s presentation to the grand jury of more than eight instances of sexual misconduct. None of the counts specified a time or place, but made general allegations of misconduct “on or between September 1, 2006 and October 1, 2008.” Defendant demurred arguing that the indictment failed to provide notice of the charges against him and failed to inform defendant if the counts returned were the same counts that the grand jury indicted him on. The trial court denied the demurrer. At the conclusion of its trial-in-chief, the state elected specific criminal acts and the indictment was amended to include “a generalized description of the type of sexual conduct and a location where it occurred.”

The COA upheld the denial of the demurrer because 1) the defendant failed to move, pre-trial, under State v. Hales, for the state to elect what specific acts they would prove at trial. 2) State v. Wimber indicates that under Article VII, section 5, when an indictment is returned that alleges fewer instances of criminal acts than evidence presented by the state to the grand jury, courts assume that the indictment includes “the criminal acts that the victim described at trial and that the state previously had presented to the grand jury,” so long as no “new or different theory, element, or crime” is added to the indictment. Because the amendments to the indictment were not substantive, but in form only,( i.e. it did not alter the defense strategy) the trial court overruling of the demurrer and MJOA on the same grounds, was affirmed. State v. Antoine, 269 Or App 66 (2015).

Unavailability of a Witness – Statements Admissible When State Acts in Good Faith to Secure Presence

The state makes reasonable good faith efforts to secure presence of unavailable declarant when they 1) attempted to contact out-of-state declarant several times by phone and mail, 2) tried to serve a subpoena on declarant, 3) arranged accommodation for declarant, and 4) tried to contact declarant’s family about her whereabouts. Here, complainant-declarant did not show up at trial. Her statements were admitted under OEC 804(3)(c) because State had tried to contact complainant several times by phone and mail, tried to subpoena complainant at her last known address, and spoke to complainant several weeks before trial, and arranged hotel accommodations for her. Under the totality of the circumstances, the state had made a good faith effort to secure complainant’s presence. Admitting her statements did not violate Article I, section 11 of the Oregon Constitution. State v. Starr, 269 Or App 97 (2015).

Confrontation – Admission is Harmless if Statement is Repetitive of Non-Testimonial Statement

Statements taken by an officer in order to terminate an ongoing emergency are not testimonial. Furthermore, statements given to another officer after the emergency has dissipated are testimonial, but harmless if they only provide repetitive detail or details not relevant to the charge. Here, complainant told first responding officer that “her boyfriend beat her up.” Five minutes later, when another officer arrived and asked her what happened, complainant stated that defendant “pushed her and she fell against the cement and hit her face on a — a curbing . . .” Although the second statements were testimonial, because they were cumulative of the prior non-testimonial statement, it was harmless beyond a reasonable doubt. State v. Starr, 269 Or App 97 (2015).

Single Subject Rule – BM 73 Meets Single Subject Rule of Oregon Constitution

A ballot measure meets the single-subject requirement of Article IV of the Oregon Constitution when it identifies 1) the precise sphere of regulation, 2) the targeted persons, and 3) the intended outcome. Here, Ballot Measure 73 “which create[s] enhanced penalties for some repeat sex offenders and intoxicated drivers” met these requirements. The sphere of regulation is the criminal justice system. The targeted people are repeat offenders. And the intended outcome is enhanced punishments. As such, Ballot Measure 73 does not violate the single subject rule. State v. Mercer, 269 Or App 135 (2015).