Oregon Appellate Ct - May 20, 2015

Revision as of 16:28, May 22, 2015

A Person Has a Possessory Interest in a USPS Express-Mail Package In Transit

A person has a possessory interest in a package sent by express mail through the US Postal Service (USPS) that has not yet been delivered. Here, Portland Police working with the USPS were regularly grabbing "suspicious" packages out of the mail stream, subjecting them to a dog sniff and doing a knock and talk with the intended recipient. In this case, the police seized a package express-mailed to defendant, got a hit from a drug dog, went to Defendant's house, talked to his roommates, got his information, called him and got him to consent to the package being opened and his room being searched. The court finds that "for an in-transit USPS express mail package, the police may not detain such a package without probable cause and a warrant or without the existence of one of the carefully delineated exceptions to the warrant requirement." A person who uses express mail has the right to control the package by pulling it out of the stream of mail at any time and the USPS has regulations limiting their ability to inspect such packages. Thus, the situation is similar to a person who has put their garbage out to be picked up by a specific company. Some rights are given up to the specific company, but there is no general intent to make the contents of the property available to the public. See State v Galloway. A package sent through the regular mail may be more like garbage that has already been picked up by the company, who now has complete possessory rights. See State v Howard/Dawson.

The police significantly interfered with defendant's possessory right in this case because they "literally dispossessed" defendant of his package the moment they took it out of the stream of mail where he had a right to control it. The officers exploited the illegality because they leveraged their possession of the package to gain consent. State v Barnthouse, 271 Or App 312 (2015).

Burglary 1 - A Breezeway Can Be Part of a “Dwelling”

“Dwelling” means “a roofed structure that is more or less completely enclosed by walls and is regularly or intermittently occupied by a person who resides in the structure at night." Here, defendant was charged with first-degree burglary following his entry into the breezeway between a house and a garage. Defendant argued that the breezeway was “a separate area outside of the house.” However, the court finds that a trier-of-fact could find that it was part of the dwelling:

“The house, breezeway, and garage are physically attached to one another by virtue of shared walls; there are no gaps between the walls of the house, the walls of the breezeway, and the walls of the garage. Though access to the breezeway from the front of the property is through an open archway, the ordinary meaning of a building indicates that the structure need only be mostly enclosed by walls. Here, walls mostly enclose the structure. Furthermore, though there is no direct access to the house from inside the breezeway, the homeowners could enter the breezeway from the house by going out the side door of the house, walking on the covered landing, and through the archway. That walk to and from the house and breezeway occurs in a fenced and gated area of the property.”

State v Taylor, 271 Or App 292 (2015).

DUII – A Person With a CDL is Ineligible for DUII Diversion, Regardless of the CDL's Validity

A person who has an active commercial drivers license (CDL) is ineligible to enter a DUII diversion program, even if the CDL is invalid and subject to cancellation. Here, defendant argued that he was eligible for diversion because ODOT improperly renewed his CDL without the requisite medical certificate. The court finds that the validity of the CDL is not the correct question. All that matters where a CDL has been issued is whether the CDL has "expired or been canceled or revoked.” A CDL that is “subject to cancellation” has not been cancelled for the purposes of ORS 813.215(1)(h).” State v Crisafi, 271 Or App 267 (2015).

Attorney Fees - The Court Must Determine Ability to Pay

Before imposing attorney fees, a judge must determine whether the defendant has the ability to pay such fees. Here, the judge neither engaged in a colloquy with the defendant nor put facts on the record to support ability to pay. Thus, it was a plain error. The court decides to correct the error because defendant received prison time (as opposed to probation) and the record contained no evidence of another source of income or "that he has or will have the capacity to pay the fees." In contrast, the court recently chose not to correct the same error in State v Baco because the defendant received probation (and therefore was not prevented from working) and the defendant agreed to attorney fees on another case being sentenced at the same time. State v Hunt, 271 Or App 347 (2015).

Sex Abuse - OEC 412 - Evidence of Prior Consent is Admissible When the State Opens the Door By Bringing in Prior Sexual Contacts

The state opens the door to cross-examination that would otherwise be barred under OEC 412 when it elicits testimony on direct of prior sexual contacts between defendant and the complainant. Here, defense counsel sought to ask complainant about his relationship with defendant to support “defendant’s position that [complainant] had consented in fact to the charged contacts, as part of an ongoing voluntary relationship, and fabricated his accusations only after that “relationship broke apart.” The state argued on appeal that the only point of the line of defense questions at issue was to elicit a 412-barred inference that there was prior consensual sex, therefore the current incident was consensual. The court finds that complainant’s testimony under direct examination about his prior sexual relationship with defendant opened the door to such an inference: "The state’s invocation of OEC 412 in this posture is, respectfully, ironic". State v Cervantes, 271 Or App 234 (2015).

OEC 801(4)(a)(B) - Prior Consistent Statements to Rebut a Motive to Fabricate Must Have Been Made Prior to When the Motive Existed

Prior witness statements are not admissible at trial as “prior consistent statements” under OEC 801(4)(a)(B) to rebut a motive to fabricate when the prior statements were made at a time when a motive to fabricate already existed. Here, the defense in a sex abuse case was that the complainant made up the charges to get an immigration visa. The state, in response wanted to bring in a slew of consistent statements the complainant made after the immigration motive existed, arguing that "the prior consistent statements did not come “after the purported motive to fabricate arose,” because defendant presented the motive as “present and ongoing[.]. . . Consequently, A’s motive to lie, at least for immigration purposes, had not yet terminated. . .The state’s response is puzzling—and, with respect, may be a non sequitur." Because the prior testimony was made when there was already a motive for complainant to fabricate her story, the prior statements were not permissible to rebut defendant’s “motive to fabricate” assertion. State v Bautista, 271 Or App 247 (2015).

Merger - Attempted Agg Murder with Two Victims Does Not Merge With Both Lesser Counts of Attempted Murder for Same Incident/Same Victims

Here's the setup: For trying to kill two people, defendant is convicted of two counts of attempted murder (one for each victim) and 1 count of attempted aggravated murder with two victims. He argues that both counts of attempted murder should have merged into the attempted aggravated murder conviction because every element is subsumed, including both victims. Unfortunately for the defendant, State v Goltz says that where there are two identical attempted agg murder counts, each with the same two victims, they don't merge. The court says that it cannot "apply ORS 161.067 [the merger statute] in a manner that would create the nonsensical result that a defendant can be convicted of two counts of attempted aggravated murder for attempting to murder two victims in the same criminal episode, under Goltz, but nonetheless cannot be convicted of one count of attempted aggravated murder and one count of the lesser offense of attempted murder for the exact same conduct." The court reasons that the defendant "could not have it both ways". If a "count of attempted aggravated murder has two attempted murder victims, such that it subsumes both counts of attempted murder under ORS 161.067(1), then there are also two attempted murder victims under ORS 161.067(2),”. Two victims cannot become one victim for the purpose of merger. State v Munoz-Juarez, 271 Or App 261 (2015).

Probation Revocation – A Sanction Cannot Exceed the Maximum Determinate Sentence

A probation-revocation sanction that combines incarceration and post-prison supervision cannot exceed the maximum determinate sentence. Here, on a C felony, the court imposed a 48 month prison term followed by a 36 month term of PPS. Since 84 months exceeds the 60 month maximum, it was an illegal sentence. The state tried to argue that the court didn't have appellate jurisdiction because it was a probation sanction, not an original sentence. The court succinctly rejects that argument, finding that it has jurisdiction pursuant to both ORS 138.053(1)(e) and ORS 138.222. State v Johnson, 271 Or App 272 (2015).

Dependency Jurisdiction - A Child’s Entire Circumstances are Relevant to the Question of Jurisdiction When Parents have Placed Care of the Child in Someone Else.

For a juvenile court to assert dependency jurisdiction when the parents have placed the care of their child in another person, all of the child’s circumstances are relevant as to whether there is a current threat of serious loss or injury to the child. Here, while parents’ conduct in isolation may have been sufficient to show a current threat of serious loss or injury to the child so as to assert juvenile jurisdiction, the child was not in parents’ care. Instead, the child was being continuously cared for by grandmother. DHS argued that “the record of parents’ activities is sufficient to support jurisdiction regardless of [grandmother’s] care” under ORS 419B.100(2). The court disagrees and finds that DHS needed to look at all of the child’s circumstances to determine whether the child was endangered under 419B.100(1)(c), because the focus of the inquiry is on the child’s welfare, not on the parents’ conduct and circumstances. Furthermore, a parent’s act of putting a child in another person’s care does not show by itself that the child’s welfare is threatened. Dept. of Human Services v A.B., 271 Or App 354 (2015).