Oregon Appellate Ct - April 22, 2015

Revision as of 15:07, April 24, 2015

Kidnapping – Moving a Person from One Room to Another, Without More, Is Not Asportation

Moving multiple people into one room during a robbery does not meet the asportation element of kidnapping when the movement is incidental to the robbery and is not designed to further isolate or increase control over the victims. Here, the Defendant was part of a home-invasion robbery involving five complainants. The Defendant went through the house, located the complainants, and moved them, at gunpoint, into one room. Because the movement was incidental to the robbery and there was no difference between the rooms in terms of isolating or controlling the complainants, the state failed to prove the asportation element. State v. Ibabao, 270 Or App 508 (2015).

PCS – A Person Can Constructively Possess Drugs Located in Another Person’s Vagina

Defendant constructively possessed drugs located in codefendant’s vagina where the circumstances indicated that the defendant “had a joint right to control” the concealed drugs. Such circumstances included: 1) The defendant lived in an apartment with the co-defendant. 2) The apartment “was a hub for illegal drug activity.” 3) Officers found additional drugs in the apartment. 4) Evidence was presented “that males will sometimes insulate themselves from risk by having females engage in the actual drug transaction.” 5) When they were stopped, the Defendant told the co-defendant to “keep her mouth shut,” “suggesting that he had knowledge” that the co-defendant possessed the drugs. 6) Lastly, the Defendant “drove evasively after the officers began following [him].” Given these facts, there was sufficient evidence for a reasonable person to infer that Defendant had control over the drugs in the co-defendant’s vagina. No error in denying MJOA. State v. Sherman, 270 Or App 459 (2015).

Jury Concurrence – Error Not to Give Concurrence Instruction on Accomplice vs Principle

The court is required to give a jury instruction on concurrence when there is an issue regarding whether the defendant is charged as an accomplice or as a principle. Here, however, the court finds the defendant was not prejudiced by the error because under either factual scenario the jury could find the elements of the offense. The Defendant was charged with murder and the jury was presented with two factual scenarios: 1) the Defendant chased down and stabbed the victim, or 2) the Defendant chased down and punched and kicked the victim while a third-party committed the fatal stabbing. Because under either scenario the jury was asked to find that the Defendant intended to cause the death of the victim, either by being the stabber, or by having “the purpose of making the victim vulnerable to the stabbing,” the Defendant was not prejudiced by the trial court’s failure to give a concurrence instruction. State v. Munoz, 270 Or App 490 (2015).

Choice of Evils – Failure to Appear - Caring for Someone Who Is Ill is Not Sufficient, By Itself

Traveling to care for a person’s sick mother, by itself, is not a sufficient offer of proof to warrant the choice of evils jury instruction when charged with failure to appear. Here, the Defendant was told that his mother, who lives in Jordan, was very ill. Unable to contact his attorney or reschedule with the trial court, the Defendant left for Jordan. He did not return to Oregon for his court date two weeks later, but stayed in Jordan for three months. Although the COA assumes psychological harm at not being able to care for one’s mother might warrant a choice of evils instruction, the Defendant, in his offer of proof, did not show that

• that his mother was facing imminent death, or
• that he could not fly to Jordan then back to Oregon for his court date, or
• that there was a threat of psychological harm at the time of the court date.

As such, the trial court was correct in deciding not to issue the choice of evils jury instruction. State v. Freih, 270 Or App 555 (2015).

Stops – Tense Conversation and Investigatory Questioning Can Create a Stop

A police encounter becomes an unconstitutional stop when an officer’s tone indicates an assertion of authority that, combined with investigatory questioning, indicates that the person is not free to leave. Here, the Defendant was standing on a street corner with several friends. One of the friends was stopped by police for jay-walking. One of the officers began to have a “terse” conversation with the Defendant where he warned that the Defendant could be arrested if he didn’t alter his behavior. While that “terse” conversation was occurring, another officer approached the Defendant and asked the Defendant if he had any drugs or weapons on him. The Defendant replied that he had a knife. Under the totality of the circumstances, the show of authority in the conversation colored by the investigatory questions would make a reasonable person feel that they were unable to leave, transforming the conversation into an unconstitutional stop.

J. Lagesen, dissenting, argues that the conversation, which the Defendant initiated, did not amount to a stop. A reasonable person would not feel that their freedom was being restricted and that they could not just walk away. The officer with whom the Defendant was having the conversation was telling the Defendant how he could avoid being arrested and the second officer did not ask questions that under State v. Highley would constitute a seizure. State v. Norton, 270 Or App 584 (2015).

Merger – Rob I and Rob II With a Firearm (Same Incident/Same Complainant) Do Not Merge

Robbery I with a firearm and Robbery II with a firearm do not merge. Here, the Defendant used a gun to rob the complainant during a drug buy. Among other things, the Defendant was charged with one count of Robbery I, one count of Robbery II under ORS 164.395(1)(a) (representing that the person is armed with a dangerous weapon), and one count of Robbery II under ORS 164.395(1)(b) (“aided by another person actually present”). All three counts were charged with the firearm aggravator. Because Robbery I requires that the gun be “presently capable,” whereas Robbery II with a firearm can be committed with an “inoperable” gun and can potentially require the presence of another person, Robbery I and Robbery II with a firearm have different elements and do not merge. State v. Burris, 270 Or App 512 (2015).

Merger – Multiple Counts of Sex Abuse I (Same Incident/Same Complainant) Merge

Under ORS 163.427 (Sex Abuse I) multiple counts arising from the same incident with the same complainant merge. Here, the Defendant was convicted of multiple counts of Sex Abuse I. Two of those counts arose from the same incident where the Defendant fondled the complainant’s breasts. Count 1 alleged that the Defendant had violated ORS 163.427(1)(a)(A) (“[t]he victim is less than 14 years of age”). Count 2 alleged that the Defendant had violated 163.427(1)(a)(C) (complainant is “physically helpless”). Because no evidence was presented that there were separate incidents, and the different subsections of ORS 163.427 are not separate statutory provisions for the purposes of merger, and the legislature only intended to define the one crime of Sex Abuse I, the two counts should have merged. State v. Black, 270 Or App 501 (2015).

Dependency – Sufficient Progress for Service Agreement Does Not Require Return of Child

Even if a parent has made sufficient progress towards meeting the goals of the service agreement with DHS, a court can still alter the permanency plan from reunification to “another planned permanent living arrangement” if it is unreasonable to wait any longer to restore custody. Here, the court found that mother had made sufficient progress in meeting the expectations set out in the DHS service agreement. She participated in family therapy, had unsupervised visits with the child, worked on developing her parenting skills, was clean and sober, and was continuing with her alcohol treatment. Despite these improvements, evidence introduced at the permanency hearing demonstrated that mother still lacked the tools to “manage her emotional reactivity and put [child’s] needs before her own.” Furthermore, mother’s inability to “react supportively as [child] suffered an emotional crisis” was “deeply upsetting” to child, and led child to engage in “minor self-harm actions.” As such, the record was sufficient to support the court’s conclusion that mother had made insufficient progress toward being able to safely take care of the child within a reasonable amount of time. Dept. of Human Services v. R.S., 270 Or App 522 (2015).

TPR – Denial of Addiction Can Be the Basis for a Termination

Even where a parent has successfully stopped using the drug that led to the initial loss of custody, a court may still terminate parental rights where the parent refuses to acknowledge and address the underlying causes of the addiction. Here, the child was removed from father’s care after a sheriff’s deputy observed heroin and 84 syringes in father’s home. Despite father’s success in quitting heroin, the COA holds that termination of parental rights was appropriate when: · father continued to doctor shop for prescription opiates, · used benzodiazepine, · minimized the dangerous living conditions that existed at the residence when the child was taken away, · refused to admit his addiction, · and failed to seek grief counseling for the mother’s suicide. In light of father’s behavior, the child’s anxiety problems and the child's attachment to her foster parents (her aunt and uncle), the COA decides it is in the best interest of the child that father’s parental rights be terminated. Dept. of Human Services v. J.A.M., 270 Or App 464 (2015).