Oregon Appellate Ct. - Nov. 13, 2014

Revision as of 17:31, November 19, 2014

Mistrial – Jury Instruction Mitigates Where Jury Infers That Prior Bad Act Was Unfounded

No abuse of discretion to deny motion for a mistrial where a reasonable jury could find that prejudicial allegations of prior bad acts were unfounded and where a limiting instruction was given. Here, defendant’s wife testified about two prior, uncharged allegations of child molestation that DHS reported as unfounded. Based on the DHS findings and that one of the alleged victims was the child of a sheriff’s deputy who would have reported the conduct if there was any basis to them, it was likely that the jury would infer that the charges were unfounded.

Furthermore, a mistrial is not warranted where the defendant offered nothing, but bare assertion to argue that there was an “overwhelming probability” that the jury was incapable of following the jury instruction. Because the jury could have reached the above inference and there was no evidence presented that the jury would not listen to the mitigating instruction, the court did not abuse its discretion in denying defendant’s motion for a mistrial. State v. Garrison, 266 Or App ___(2014).

Sentencing – No Shift To Concurrent Sentences Where Sex Abuse Is Separate Incident

Defendant is not eligible for a “shift-to-I” reduction in the sentencing guidelines where the individual counts of sex abuse occurred at distinct moments within a period of continual sexual misconduct. Here, defendant was convicted on several counts of rape, sex abuse, and sexual assault. Defendant’s conviction of sexual abuse in the second degree didn’t merge with the other counts of sex abuse/rape because each count was for a specific event instead of a continuous event that included the conduct contained in the sex abuse in the second degree count. State v. Garrison, 266 Or App ___(2014).

Jurisdiction – City And State Have Concurrent Jurisdiction Over Misdemeanors Charged In Municipal Court

Under ORS 221.339(5), the legislature provided concurrent jurisdiction between district attorneys and city attorneys over misdemeanors committed in the city. Neither office is subordinate to the other. Clatsop County District Attorney v. City of Astoria, 266 Or App ___ (2014).

Effective Counsel – Issues Raised Pre-trial, But Not In Trial Are Preserved

Failure to renew an objection at trial that was made pretrial is not deficient representation. Here, defense counsel had moved to suppress statements pretrial, but did not renew those objections at trial. Subsequently the Oregon Supreme Court revaluated the “compelling circumstances” test for Miranda issues. By objecting pre-trial, counsel had already demonstrated the requisite skill of counsel in preserving the Miranda topic for the appellate court, even if the decision was decided on different grounds based on the subsequent Supreme Court Opinion. {http://www.publications.ojd.state.or.us/docs/A149496.pdf Saunders v. Nooth], 266 Or App ___ (2014).

Juvenile Jurisdiction – Mental Health Services Not Required if Other Active Efforts Shown

When an Indian child is involved, DHS must show that “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of Indian family.” Here, a mother showed up at the jurisdictional and dispositional hearing with her face painted white and hearing voices telling her to hurt her kids. Even though DHS had not completed a psychological evaluation nor provided mental health services to the mother, the court stated that other facts—providing visits to the child, scheduling appointments, actively searching for relative replacements, and working with the Cherokee tribe to enroll the child—all contributed to sufficient active efforts by DHS for reunification of the family. Dept. of Human Services v. M. D., 266 Or App ___ (2014).

IPO – Requires an Intentional Mental State

“Refuse to obey a lawful order by a police officer” in the IPO statute (ORS 162.247(1)(b)) requires an intentional culpable mental state—a conscious intention not to obey an officer’s lawful order. Here, defendant was charged with Attempting to Elude a Police Officer but the trial court convicted him of IPO as a lesser included offense. Because IPO requires the state to prove a higher culpable mental state (intentional) than the mental state for Attempting to Elude (knowingly), it is not a lesser included offense.

State v. Enyeart, 266 Or App ___ (2014).

Jurisdiction – Constitutional Claims Outside of ORS 138.050 Must Wait For PCR

Appellate courts do not have jurisdiction to hear an alleged violation of the ex post facto clause of the Oregon or federal constitution in a direct appeal under ORS 138.050(1). Here, defendant, on remand, plead to DUII and received a fine under the 2012 version of ORS 813.030. Defendant argued that because the actual event occurred in 2009, the 2009 version of ORS 813.030 should apply and that applying the current version of ORS 813.030 to the 2009 conduct was a violation of the ex post facto clause. Because ORS 138.050(1) only allows for a direct appeal of a guilty plea for a punishment that “exceeds the maximum allowable by law; or is unconstitutionally cruel and unusual,” and not for violations of the ex post facto clause, that claim would have to be “left to possible post-conviction relief.”

State v. Taylor, 266 Or App ___ (2014).