Oregon Appellate Ct - Aug. 19, 2015

Revision as of 08:05, August 23, 2015

Choice of Evils - Imminence - A Realistic Threat of Serious Harm is Not Imminent Enough If The Timing Is Vague

A specific, credible threat of serious injury that could be carried out at any time is not sufficiently imminent to assert the defense of choice of evils. The threat must be "immediate" in the sense of being "ready to take place" or "near at hand". Here, defendant was a prison inmate who had been told that his life was in serious danger from a skinhead gang who thought he was a snitch. Thus, he armed himself with a sharpened toothbrush, a prohibited weapon. But because there was no timing associated with the threat and no way to tell that violence might occur that day, much less was "about to happen", the threat was insufficiently imminent, even if absolutely true, to suffice for either choice of evils or self-defense. State v McPhail, 273 Or App 42 (2015).

Search and Seizure - Exploitation – Warrant Discovery Does Not Automatically Cure Police Misconduct under Article 1, section 9.

Extending the premise of State v. Bailey (a Fourth Amendment case) to Article 1, Section 9 of the Oregon Constitution, courts must now apply the five factor exploitation analysis under State v. Unger to determine whether the discovery and execution of an outstanding warrant attenuates the taint of prior unlawful police conduct. The court disavows State v. Snyder, 72 Or App 359, rev den, 299 Or 251 (1985) (holding that the discovery of a warrant purged the unlawful police conduct under Article 1, section 9). Here, the defendant was unlawfully stopped when the officer approached the defendant, inquired into the defendant’s identification, and then told the defendant to “hang on a second” when the defendant wanted to leave to go to the bathroom. The officer admitted that there was no reasonable suspicion of criminal activity. The officer then ran defendant’s name for a record’s check and discovered an outstanding warrant. Because the state failed to prove attenuation from the unlawful stop in accordance with the five factors, the discovery of the warrant did not cure the police misconduct. The five Unger factors are: (1) the temporal proximity between the unlawful police conduct and the discovery of the challenged evidence; (2) the presence of mitigating circumstances; (3) the presence of intervening circumstances; (4) the purpose and flagrancy of the unlawful police conduct; and (5) the nature, extent and severity of the constitutional violation.State v. Benning, 273 Or App 207 (2015)

PCR - Whether a Plea is Involuntary Is a Case-Specific Analysis

A plea is not involuntary "as a matter of law” merely because of a prosecutor’s extrinsic threats or promises in plea negotiation. Here, defendant pled guilty to avoid his family being charged with witness tampering and their security forfeited. But it is not enough that it is possible that the defendant decided to accept the plea offer despite being innocent, whether because of factors intrinsic to the prosecuted case or because of factors outside the formal case:

"that unsettling reality is inherent to the plea-negotiation process, which has been deemed 'crucial to the proper functioning of the criminal justice system.’"

Berg v Nooth, 273 Or App 97 (2015)

Post-Conviction DNA Testing - Petitioner Must Identify Specific Evidence To Be Tested.

A trial court is not required to order post-conviction DNA testing under ORS 138.690 unless the petitioner identifies specific evidence to be tested. Here, the pro se petitioner requested that DNA testing be performed on "bodily fluids, sperm, reproductive cells, saliva". Since the petitioner did not articulate any evidence where the genetic material might be located, the statutory requirements were not met. State v Thunderbird, 273 Or App 256 (2015) __________________

It Is Not a Defense to a Crime by Omission That Defendant Was Compelled to Act

Where criminal liability is premised on a failure to act, the defendant must fail to perform an action that the defendant is “capable of performing.” Here, defendant was charged with animal neglect and sought to introduce evidence that, due to her Obsessive Compulsive Personality Disorder (OCPD) she involuntarily acquired a large number of cats. The court holds that a compulsion to acquire cats does not tend to prove defendant was incapable of performing the bodily movements required to care for her cats. Thus, evidence of OCPD was not relevant to the underlying crime. Also, a person is still able to perform a voluntary act, even in the absence of alternative courses of action. Thus, defendant's financial inability to provide adequate care for her cats does not lead to the conclusion, in and of itself, that there was not a voluntary act. State v. Hess, 273 Or App 26 (2015)

Merger - Animal Neglect - Each Animal is a Separate Victim

Oregon’s anti-merger statute, ORS 161.067(2), provides that “when the same conduct or criminal episode through violating only one statutory provision involves two or more victims, there are as many separately punishable offenses as there are victims.” Here, defendant argued that her 45 counts of animal neglect should be merged into a single conviction. She contended that her cats were her property and thus not victims. Accordingly, this left only one victim of her crimes – the public. The court rejected defendant’s argument and adopted the reasoning of State v. Nix, 355 Or 777 . When the animal neglect statutes are violated, for purposes of the anti-merger statute, each animal neglected is considered a separate victim. State v Hess, 273 Or App 26 (2015)

Probable Cause – Merely Looking Down at Device Is Not Probable Cause of Driving While Using A Mobile Device

A person commits the offense of Operating a Motor Vehicle While Using a Mobile Communication Device (ORS 811.507(2)) if the person uses a mobile communication device for the purpose of voice or text communication. Using legislative history, the court rejects the state’s argument that the statute encompasses any use of a mobile device, and holds that it pertains only to the specific acts of voice or text communication. Here, after observing the defendant hold a device that emitted light for ten seconds and look down twice at the device while driving, a trooper pulled the defendant over in violation of ORS 811.507. The defendant was ultimately arrested for DUII. Without more, merely looking down at a mobile device while driving does not violate ORS 811.507, and the officer’s observations did not rise to the level of probable cause to stop the defendant for the traffic violation. Reversed. State v. Rabanales-Ramos, 273 Or App 228 (2015)

Kidnapping – Another Person’s Knowledge of Victim’s Location Defeats Kidnapping Only if Person Would Reasonably Aid Victim

To prove Kidnapping under ORS 163.225(1), the state must prove that the defendant "secretly confined the victim in a place where that person is not likely to be found" by those who could reasonably be expected to assist the victim. Here, the victim was kept in defendant’s house for two days where she was beaten and sexually abused. When the police ultimately came to the house, defendant concealed victim in his bedroom and covered her in bedding to hide her from police. The fact that defendant's two friends came in and out of the house and knew victim was at the house was not alone sufficient to defeat the element of secret confinement since the friends were not inclined to notify the police. Thus, a fact finder could decide that the location was a place where the victim was not likely to be found. State v. Kawamoto, 273 Or App 241 (2015).

Unlawful Sexual Penetration – Extended Violence Towards Victim Sufficient Causal Connection Between Violence and Penetrative Act

To prove unlawful sexual penetration, the state must prove not only that defendant penetrated the anus, vagina, or penis of the victim with an object but that he compelled the victim to submit to that act by way of either physical force or threats under ORS ORS 163.411 and ORS 163.305(2). Here, the defendant had repeatedly beat the victim with a baseball bat and inserted the bat into her anus. The court found that the extended episode of violence directed at the victim was sufficient for the factfinder to infer a causal connection between defendant’s assaultive behavior and the penetrative act at issue to satisfy either the physical force or implied threats prongs. State v. Kawamoto, 273 Or App 241 (2015)

Discovery of a Warrant -- Bailey Analysis

Defendant was stopped by a Trimet officer for a fare inspection. The trimet officer suspected the defendant was providing a false name and escorted him to another officer, who strayed into a new investigation of providing false information to an officer. The defendant admitted to giving a fake name, provided his real name, and a warrant was discovered. The officer subsequently discovered incriminating evidence pursuant to a search incident to arrest. Because the Oregon constitutional arguments were unpreserved, the court applied the three-prong federal analysis from Bailey to determine whether the discovery of the warrant was attenuated from the unlawful seizure (the court assumed but did not decide that the stop was unlawful):

(1) Temporal Break: there was no temporal break between the unlawful seizure and the challenged evidence, which weighs in favor of suppression;

(2) Intervening Circumstances: While the discovery of the arrest warrant was the direct consequence of the unlawful detention, the officer was not on a searching expedition for a warrant and therefore this factor bears only some weight in favor of suppression;

(3) Purpose and Flagrancy: the misconduct was not purposeful or flagrant because the unlawfulness of the seizure was not obvious to the officer, as the officer was confronted with an individual who had given and then admitted to providing a false name. This factor did support suppression.

Balancing the factors, the court concluded that the discovery of the warrant was sufficiently attenuated from unlawful seizure. [ http://www.publications.ojd.state.or.us/docs/A154686.pdf State v. Mitchell], 273 Or App 207 (2015)