Oregon Appellate Ct - August 13, 2014

Latest revision as of 12:17, August 25, 2014

Double Jeopardy- “Same Offense"

Defendant’s admission to taking multiple pieces of jewelry on “one occasion,” as well as a lack of evidence that jewelry was taken in any manner other than “all at the same time and without pause” is not legally sufficient to establish multiple prosecutions for theft as the “same offense.” Defendant’s admission to a Deschutes County sheriff’s deputy that she stole unrecovered pieces of jewelry and the Multnomah County prosecutor’s knowledge of a pending prosecution in Deschutes county were not enough to show that the Multnomah County prosecutor “reasonably knew” of the offenses. Defendant had challenged a Deschutes County prosecution as barred by a Multnomah County conviction for stealing a single gold ring from the same victim. Although the state conceded that the Multnomah prosecutor had knowledge of two counts, defendant could not produce evidence sufficient to show prosecutorial scienter for the remaining counts, or that any of the counts arose from the same criminal episode. Vacated and remanded to determine if counts 2 and 3 arose from same criminal episode. State v. Hamel-Spencer, 264 Or App ___ (2014).

Sex Abuse II Merges with Sodomy III When the Conduct Involves Deviate Sexual Intercourse With a Victim Under 16

“For merger purposes, the “does not consent” element in ORS 163.425(1)(a) encompasses the victim’s age element in ORS 163.385(1).” Here, defendant “moved [15 year old’s] pajama pants and underwear to the side and licked her vagina.” His second-degree sexual abuse and third-degree sodomy convictions should have been merged because the charges involved the same elements: deviate sexual behavior and lack of consent. Lack of consent is satisfied by proof of incapacity to consent. See State v. Ofodrinwa, 353 Or 507 (2013). Reversed and remanded to merge relevant counts; remanded for resentencing; otherwise affirmed. State v. Pass, 264 Or App ___ (2014).

A “No Trespassing” Sign Next To Driveway Does Not Automatically Create a Privacy Interest in the Driveway

A “No Trespassing” sign on a fence next to a driveway does not, by itself, objectively manifest an intention to exclude visitors from the driveway. Officers used defendant’s driveway to get to his front door, despite a “No Trespassing” sign on the fence next to the driveway and other signs not visible to those driving to the home. The officers did not invade defendant’s right to privacy because the defendant failed to manifest the objective intention necessary to exclude the officers. Although it was night and the officers claimed they were unable to see the sign, the court expressed no opinion on how the visibility of signs at night manifests a person’s intention. Affirmed. State v. Hockema, 264 Or App ___ (2014).

Mistrial- Eliciting Testimony That DUII Suspect Invoked Right to Remain Silent, Found Inadmissible In a Pretrial Ruling, Was Prejudicial

Mistrial is appropriate when the prosecutor elicits prejudicial testimony about a DUII defendant’s invocation of the right against self-incrimination and a curative instruction only asked the jury to ignore the testimony. Police tracked down a SUV suspected in a hit and run and found defendant outside of the vehicle. After defendant failed field sobriety tests and registered a .14 BAC, the officer asked her when she stopped drinking. She replied, “Don’t want to say anything incriminating.” Despite a pretrial ruling that found this statement inadmissible, the prosecutor elicited it from the officer at trial. Simply telling the jury to ignore the statement was not enough to cure the prejudicial effect. Reversed and remanded. State v. Osorno, 264 Or App ___ (2014).

Defendant May Agree to the Judicial Determination of an Element, During a Jury Trial, Without a Written Waiver of Jury

A defendant is not entitled to have a jury try an element of an offense if, during a jury trial, he orally agrees to have the trial court decide that element. Under the Oregon Supreme Court’s holding in State v. Barber, 343 Or. 525 (2007), a trial before the court without a written waiver by the defendant is a violation of the defendant’s right to a jury trial. Here, at the end of the trial, the prosecutor and defense counsel both agreed that findings regarding the defendant’s license suspension should be made before the court rather than before a jury. The court concludes that Barber does not require a consideration of the alleged errors because the defendant had received a jury trial, and, in any case, it refuses to exercise its discretion to consider invited errors. State v. Kinney, 264 Or App __ (2014).

The Retention of Identification for More Than a Brief Period May Be a Per Se Stop.

An extended retention of a defendant’s identification card may amount to a per se stop. A stop occurs when there is an imposition, either by physical force or through some show of authority, of some restraint on an individual’s liberty. Here, the court reconsidered whether the police officer’s interaction with the defendant amounted to a stop in lieu of the Supreme Court’s decisions in Backstrand, Highley, and Anderson, all of which emphasized that neither briefly holding a person’s identification card, nor calling in the person’s identification information for a warrant check, automatically created a stop. The court concludes that the state’s failure to produce any evidence that the officer’s retention of the defendant’s identification was brief, in combination with other circumstances, demonstrated that the defendant was stopped when the officer received consent to search her purse. Reversed and remanded. State v. Thompson, 264 Or App __ (2014).

Civil Commitment - It's Plain Error Not to Advise AMIP of the Right to Subpoena Witnesses

The failure to advise an allegedly mentally ill person of his or her right to subpoena witnesses in a civil commitment hearing is plain and not harmless error, even if the person is represented by counsel. ORS 426.001(1) requires the court in a civil commitment hearing to advise an allegedly mentally ill person of certain information, including the reason for being brought before the court, the nature of the proceedings, the possible results of the proceedings, the right to subpoena witnesses, and the person’s right to counsel. Here, the defendant appeared before the trial court in a civil commitment hearing, represented by counsel, and the trial court did not advise her of her right to subpoena witnesses. The trial court committed plain error in failing to advise the defendant of her rights to subpoena witnesses, and the court exercises its discretion to correct the error. Reversed and remanded. State v. V.B., 264 Or App __ (2014).

Burglary - A Private Club Is Not "Open to the Public”

A member’s only tennis club is not "open to the public”, for the purposes of Burglary in the Second Degree, when:

There is an electronic reader next to the door

There are various signs referring to “members” and “membership”

And the name of the facility refers to a specific club and function.

Here, defendant walked through the unlocked doors of the Albany Tennis Club and stole items from a purse that was in the women’s locker room. The fact that the front doors were open during the time that defendant entered the club did not matter because “the club had no general reception area where a staff member might be available to interact with prospective members or other visitors” and the doors were unlocked exclusively to allow access to members. Affirmed. State v. Etzel, 264 Or App ___ (2014).

Preservation - Search of a Bedroom vs Opening the Door

On appeal, defendant argued that his grandmother's opening of his bedroom door constituted a search. At trial, defendant argued that there was no legal basis for police to enter and search the bedroom, not that opening the door itself was a search. Thus, his argument was not preserved. Also, defendant's argument that Machuca's exigency analysis does not extend to residential searches was too late when raised for the first time in a reply brief. Affirmed. State v. Brown, 264 Or App ___ (2014).