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Oregon Supreme Court November 30, 2012

by: Stephanie Clark and Abassos • November 30, 2012 • no comments

A victim does not have the right to withhold records necessary to preserve the trial court record for appeal.

A victim has the right to refuse discovery requests under Article I, section 42. But when a trial court holds that a defendant cannot gain access to a victim's discovery, the victim cannot withhold a sealed copy of the discovery from the record to prevent review. Here, the trial court prohibited defendant's access to a copy of the victim's Google search on the night of the alleged sexual assault. The Court holds that the victim must provide a sealed copy to preserve appeal of the trial court's decision. State v. Bray, __ Or __ (2012).

Oregon Supreme Court November 29, 2012

by: Stephanie Clark and Abassos • November 29, 2012 • no comments

The admissibility of eyewitness identifications is determined by reliability and grounded in the evidence code.

When a defendant moves to exclude an eyewitness identification, the state bears the burden of proving the ID is reliable. The state must do so by establishing the facts necessary for admissibility under the evidence code-i.e. that the eyewitness has personal knowledge of the matters to which he or she will testify and the identification was rationally based on the witness's first-hand impressions and will be helpful to the jury. If the state meets its burden, the defense must show that the probative value of the ID is substantially outweighed by the risk of unfair prejudice. This rule is a revision to the State v. Classen test for admissibility, which required a trial court to first determine whether an identification was made under suggestive circumstances before deciding whether it was independently reliable. Two cases consolidated for the opinion were decided under the new rule today.

In State v. Lawson, Mrs. Hilde identified the defendant as her attacker. However, she only saw the person's profile for a few seconds because he placed a pillow over her face. When questioned initially at the hospital she told police that she could not identify her attacker and she was unable to pick him from a photographic lineup. It was only after Mrs. Hilde first saw the defendant in a newspaper photo that said he was the suspect and then at a preliminary hearing, that she was able to positively ID him. The Court held that the lack of personal observation raised serious concerns that the ID was reliable and not a product of suggestive circumstances. Remanded for retrial.

State v. James on the other hand passes the new test. Two men robbed Safeway, one blocking the exit and fighting off the managers while the other ran away with the booze. The report to police included great detail of the suspects:"a fairly large guy; Indian male six feet to six feet two inches, 220 pounds, wearing baggy blue jeans, white tank top tee shirt"; and a "small Indian male approximately five feet tall, 110 pounds, wearing a black coat with a hood and baggy blue plants, carrying a black back pack." Five hours later a police officer picked up two males matching the description, drove them to Safeway, and the managers identified them as the robbers. The Court held that the ID was based on personal knowledge and up-close personal observation. Although the police just showing up with defendants may have been suggestive, the detailed description provided sufficient evidence that the identification was based on the witnesses' original observation. State v. Lawson/James, __ Or __ (2012).

Scientific Evidence > Physical Abuse Diagnosis That Identifies the Perpetrator

A physician's conclusion that the defendant caused a child physical injuries did not meet the requirements for admissibility as scientific evidence because it did not have sufficient indicia of scientific validity to be helpful to the jury under OEC 702. Here, in a prosecution for child abuse, the trial court admitted the expert testimony of, and a written report by, a CARES physician. The expert diagnosed the child, C, as a victim of child abuse and concluded that "[C] was physically abused by [defendant]." The expert's conclusion was inadmissible as scientific evidence because her testimony did not sufficiently describe the techniques that she had used to identify the perpetrator. To the extent she did describe her techniques, her testimony also failed to demonstrate that those techniques were generally accepted, consistent with recognized safeguards to increase diagnostic accuracy, or supported by literature in the field. State v. Sanchez-Alfonso, __ Or __ (2012).

Oregon Appellate Court November 15, 2012

by: Stephanie Clark and Abassos • November 15, 2012 • no comments

A meth conviction from 4 yrs ago plus personal amount possession now does not create pc for a search warrant

Officers obtained a search warrant for defendant's house based solely on:

1. A four-year-old conviction for possessing a commercial amount of methamphetamine.

2. A recent consent search by defendant's probation officer that found a half gram of meth and a dirty pipe in defendant's house.

Such evidence, without more, did not provide probable cause to believe that defendant would have additional methamphetamine in other parts of his house. State v. Huff, __ Or App __ (2012).

Dependency - Permanency Judgment - Harm vs Severe Harm

"Under the totality of the circumstances as they existed at the time of father's motion, DHS established that there was a reasonable likelihood of harm to M's welfare such that it was not error to continue jurisdiction. M did not meet father until she was eight years old and had been in foster care for more than two years. . . M strongly preferred to continue to live in her foster home and was not aligned with father. Further, there was evidence that a sudden transition from her current placement with her "psychological" grandparents and into father's home could be harmful to M."

However, "the record does not support the juvenile court's determination that placement with father within a reasonable time would cause M severe mental and emotional harm. Although there was evidence that any transition would be very difficult and would require services for M and father, that prospect is not unlike the circumstances in most dependency cases where a change in placement will be difficult for the child." Thus, the plan should have been for reunification, not guardianship. Permanency judgment reversed. DHS v JN, __ Or App __ (2012).

Per Curiams

• Civil Commitment - The record lacks legally sufficient evidence to support a finding that the defendant was a danger to others as a result of a mental disorder. State v. M.J., __ Or App __ (2012) (per curiam).
• Unlawful use of a weapon - The court affirms based on State v. Ziska, which held that "'use' in ORS 166.220(1)(a) describes both the actual use of physical force and the threat of immediate use of physical force." State v. Garza, __ Or App __ (2012) (per curiam).

Oregon Supreme Court November 8, 2012

by: Stephanie Clark and Abassos • November 8, 2012 • no comments

Standard for Criminal Negligence

A criminally negligent state of mind does not require "seriously blameworthy" conduct or that a defendant's conduct shows an "indifference to consequences"; it requires only that the risk of a particular result from defendant's conduct be "substantial and unjustifiable" and that failure to be aware of said risk is a "gross deviation" from a reasonable standard of care. Whether conduct exhibits a criminally negligent state of mind is heavily fact-dependent. Here, defendant was guilty of criminally negligent homicide in a vehicle collision where facts showed he was more than "merely inattentive": he was driving in a known "safety corridor" under hazardous conditions, he was a professional driver who should have been aware of these conditions, several witnesses observed him driving unsafely prior to the collision, and the collision was avoidable.

The Oregon Supreme Court also affirmed State v Betts (384 P2d 198, 1963) in noting that evidence of prior conduct logically permits an inference of an ongoing state of mind.

State v Lewis, ___Or___ (2012)

Motion for reconsideration allows minor change in previous ruling for purposes of habeas corpus

Upon petition for reconsideration, the Oregon Supreme Court modified its ruling in State v.Leistiko, 352 Or 172, 282 P3d 857 (2012) to make clear that defendant raised two arguments on his petition for review, although they were not later briefed on the merits, for purposes of subsequent habeas relief. Otherwise the opinion is undisturbed. State v Leistiko ___Or___ (2012)

Oregon Appellate Court November 7, 2012

by: Stephanie Clark and Abassos • November 7, 2012 • no comments

Increase in "Look-Back" Period for DUII Diversion Is Not an Ex Post Facto Violation

The five-year increase in the "look-back" period for DUII diversion eligibility does not result in "greater or additional punishment" for DUII such that the increase is an ex post facto violation. The change in eligibility requirements was not an increase in "punishment" because the primary purpose of the change was to be a procedural alternative to punishment, not to change the crime of or sentence for, DUII. State v. Carroll, __ Or App __ (2012).

Particularity Requirement for Admitting Abuse-Victim Hearsay

The pretrial notice required under OEC 803(18a)(b) for admitting an abuse victim's out-of-court statements must identify the particular statements to be offered. Here, the state violated the rule by only providing copies of reports and stating that the reports "contain the particulars of statements made by [victim] that the state intends to offer." State v. Bradley, __ Or App __ (2012); see also State v. Wood, __ Or App __ (Oct. 24, 2012).

Aiding-and-Abetting After-the-Fact Is Not a Crime

Oregon law does not recognize an aid-and-abet after-the-fact theory of criminal liability because "the aid-and-abet statute plainly applies only to conduct prior to or during the commission of a crime." Here, the trial court erroneously convicted defendant of fraudulent use of a credit card for helping the principal actor escape arrest after defendant learned of the theft and misuse of the credit card. The court exercises its discretion to correct the trial court's unpreserved error and remands for a new trial because defendant "stands convicted of something that is not a crime." State v. Barboe, __ Or App __ (2012).

Merger, Valuation of Stolen Property, and Restitution in Juvenile Proceedings

The court affirms the juvenile court's judgment of jurisdiction for acts that, if committed by an adult, would constitute first-degree arson, aggravated first-degree theft, and two counts of second-degree burglary.

• The two counts of burglary do not merge because youth had sufficient time to renounce his criminal intent between entering a school building with intent to commit theft and later reentering with intent to commit arson.
• ORS 164.115(1), governing the valuation of property under the theft statutes, does not bar the court from considering the cost of replacements as a factor in determining fair-market value. Here, the juvenile court properly considered the cost of replacement computers in finding that the stolen property was worth at least $10,000 as required for aggravated first-degree theft.
• The term "victim" for restitution purposes in juvenile proceedings includes insurance companies. "Victim" is given its definition in the Criminal Code, not the juvenile code.

State v. G.L.D., __ Or App __ (2012).

Stop - Reasonable Suspicion

An order to come out of a house with your hands up is a stop. Here, there was reasonable suspicion for the stop where defendant entered a house occupied by two murder victims, didn't match the description of anyone who lived there, and didn't answer the telephone when officers called the house. Also, officers had probable cause to enter the house since there was probable cause to believe that there was evidence of recent murders inside and that it was at risk of being destroyed. And, for the same reasons, there were exigent circumstances that required the officers to secure the house. The officers gained probable cause to arrest when defendant came out of the house and they noticed blood on his pants. Finally, it was not a violation of Miranda when defendant asked if he needed an attorney and the officers responded that "It's up to you." Defendant's statement was equivocal and officers responded appropriately. State v. Hudson, __ Or App __ (2012).

Dependency > Preservation > Failure to Make Required Findings

Because a dispositional order is required at the conclusion of a dependency hearing, the contesting party must object at that time if a juvenile court fails to include statutorily required findings under ORS 419B.340(2) in order to preserve the issue for appeal. DHS v. C.C.

Dependency > Subject Matter Jurisdiction

In a custody case involving multiple jurisdictions, ORS 109.741(1)(b) confers jurisdiction to Oregon when no other state has jurisdiction under paragraph (1)(a) and both subparagraphs (1)(b)(A) and (1)(b)(B) apply. Here, mother had "a significant connection" with Oregon because she:

• had belongings in Oregon
• had lived in the state for four years
• received prenatal care in Oregon
• applied for and collected public assistance in the state.

Furthermore, mother's contacts with health care institutions and professionals, her interactions with DHS, and her erratic conduct constituted relevant evidence "concerning the child's care, protection, training and personal relationships" in Oregon under ORS109.741(1)(b)(B). Therefore, the Oregon court had jurisdiction. DHS v. S.C.S

Dependency > Continued Jurisdiction

A court may not base an order for continued jurisdiction on unalleged facts unless the underlying petition provided sufficient notice of what the parent must do to prevent continued jurisdiction. Here, the petition stated that the mother had alcohol problems and pleaded guilty to assault and strangulation. Thus, mother had sufficient notice that her anger problems were at issue. DHS v. M.M.B.

Failure to Demand a Speedy Trial

Where a defendant is in prison and knowingly fails to demand trial, the delay is attributable to the state, but it is otherwise reasonable under ORS 135.747. Here, defendant failed to appear for two separate court dates for a misdemeanor DUII. He was arrested on a bench warrant, and shortly thereafter, his probation on an unrelated charge was revoked. While in the DOC, defendant waited nine months to demand trial. The court holds that because defendant knowingly failed to demand, the nine-month delay was reasonable, and the cumulative delay of 16 months attributed to the state was also reasonable. State v. Bircher.

A Superficial Bruise Does Not Qualify as a Physical Injury

For the purposes of first-degree criminal mistreatment, "physical injury" means "impairment of physical condition or substantial pain." ORS 161.015(7). In turn, "impairment of physical condition" requires "harm to the body that results in a reduction in one's ability to use the body or a bodily organ for less than a protracted period of time." State v. Higgins, 165 Or App 442(2000). Here, defendant admitted to spanking her 16-month-old across his buttocks, which made the child cry and caused a bruise. However, the child's doctor testified that the bruise was 'superficial,' and the child had full range of motion. Thus, there was no evidence that the bruise was a 'physical injury' for purposes of criminal mistreatment.State v. Wright

MJOA - Variance between Indictment and Evidence

Variance between the indictment and the evidence at trial is prejudicial, "[i]f thedefendant would need to develop a different argument to contend with the variance." State v. Boitz, 236 Or App 350, 356 (2010). Here, defendant was charged with hindering prosecution. The indictment alleged that the defendant "did***prevent, by means of deception, the discovery or apprehension of Shane Culp." This differed from the statutory language and jury instruction which states that a person hinders prosecution where he, "[p]revents or obstructs, by means of * * * deception, anyone from performing an act which might aid in the discovery or apprehension ofsuch person[.]" Defendant's argument was that defendant did not prevent sheriffs from apprehending Shane Culp since the sheriffs decided that defendant was lying and ultimately arrested him. Instead, defendant prevented the sheriffs from immediately searching the house which would satisfy the statute but not the indictment. Thus, the variance in this circumstance was prejudicial, and the court reverses. State v. Hansen

DMV Can't Suspend a License Twice for the Same Failure to Pay a Fine

Where the DMV has already suspended a person's license for the maximum statutory period for failure to pay traffic fines, the DMV cannot re-suspend the license because the driver continues not to pay the fine. Here, because defendant had already been suspended for the statutory period, DMV lacked the authority to suspend his license again, and the appropriate remedy is exclusion of the later suspension order. Richardson v. DMV.

Per Curiams

• State v. Freeman: The automobile exception authorizes a warrantless search of a vehicle but does not extend to body searches of the vehicle's occupants.
• State v. K.B.G.: Civil commitment: Evidence was insufficient to support a finding that defendant was a danger to others and could not provide for her basic needs.
• State v. Withnell: The defendant was tried jointly with the defendant in today's case State v. Hansen, and the evidentiary record is identical. Thus, the trial court's denial of defendant's motion for judgment of acquittal is reversed for the reasons stated in Hansen.

Oregon Supreme Court November 1, 2012

by: Erick Tobias and Abassos • November 1, 2012 • no comments

Witness Competency Requires Sufficient Ability to Communicate Perceptions

For a witness to be competent, he must have sufficient ability to perceive, recollect and communicate such that his testimony will be worthwhile. Here, the state wanted to introduce the testimony of defendant's autistic son, Z. The accommodations necessary for Z to testify "would effectively exclude most questions involving intangible actions, past events, persons and objects not present at trial, distances, times, dates, and locations." Thus, his severely limited ability to communicate his perceptions renders him incompetent to testify.

A video in which Z allegedly leads investigators in a car to the scene of the crime was properly excluded:

• Its probative value depends upon the jury accepting a number of assumptions and inferences,
• It contains a number of suggestive and leading questions by the investigators, and
• It would mislead the jury because it would likely be given inordinate attention at trial.

State v. Sarich, __ Or __ (2012).

Oregon Appellate Court October 24, 2012

by: Erick Tobias and Abassos • October 25, 2012 • no comments

Speedy Trial Statute does not Apply to Retrials

Under ORS 135.747, a defendant is "brought to trial" when "the trial is commenced." Where there is a mistrial and the defendant is retried, the first trial is the relevant one for tolling the speedy trial statute. State v. Garner, __ Or App __ (2012).

Scope of State-of-Mind Exception to Hearsay Rule

An elderly victim's past-tense out-of-court statements in a theft case-that she did not want to transfer her home to defendants- do not concern her present state of mind, but rather her mental condition and intention at a time preceding the statements. Thus, the statements do not fall under the state-of-mind exception to the hearsay rule. State v. Richardson, __ Or App __ (2012).

The Meaning of "Use" Under ORS 166.220, Unlawful Use of a Weapon

Under ORS 166.220(1)(a), unlawful use of a weapon, "use" describes both the actual use of physical force and the threat of immediate use of physical force. Here, defendant committed UUW by threatening the victim with a crowbar. While defendant did not intend to actually use physical force, he did intend to threatenthe immediate use of physical force. State v. Ziska, __ Or App __ (2012).

OEC 803(18a)(b) Hearsay Exception For Abuse Victims > Insufficient Notice

Notice under OEC 803(18a)(b) requires "at a minimum that the state identify in its notice the substance of the statement sought to be introduced and also identify the witness or the means by which the statement would be introduced." State v. Chase, 10 Or App 541, 546-47 (2011). Here, the state's notice that it intended to introduce victim's statements along with reports including the substance of the statements insufficiently identified which statements from the report would be introduced. State v. Wood, __ Or App __ (2012).

Forcible Compulsion May Be Proved by Alternative Evidence

Forcible compulsion is a single element of first-degree sodomy that the state may establish by alternative evidence of either physical force or threat. The jury need not agree on the means of forcible compulsion because the alternatives would not constitute separate crimes. State v. Sullivan, __ Or App __ (2012).

Merger > Assault Convictions Merge Absent "Sufficient Pause"

Multiple assault convictions arising out of the same, single-victim incident must be merged unless there is a "sufficient pause" between the assaults affording defendant the opportunity to renounce his criminal intent. The mere passage of time does not establish this "sufficient pause"; the evidence must show that one assaultended before another began. State v. Glazier, __ Or App __ (2012).

Civil Commitment > History of Not Taking Heart Medication May Be Sufficient

In cases involving a defendant who refuses to take medication for a physical condition, the state must provide evidence on the nature and severity of the condition if refusal continues to support a finding that defendant is a threat to himself. Here, evidence that defendant had previously refused medication that may result in a heart attack if not taken was sufficient. State v. J.S., __ Or App __ (2012).

Lack of a Privacy Interest is not a Basis for Proving Attenuation

That an unlawfully stopped passenger does not have a possessory or privacy interest in a car is not a basis to show that a search of the car after the driver consented was attenuated from the unlawful stop. Here, the defendant-passenger met the "factual nexus" burden by showing that consent to search was obtained during an illegal stop where police sought consent instead of proceeding with processing the traffic infraction. The state argued that the search was valid as it pertained to defendant because it did not interfere with his possessory or privacy interest. However, the state presented no evidence that consent made the search lawful and discovery of the meth inevitable. Therefore, the state did not meet its burden of showing attenuation. State v. Knapp, __ Or App __ (2012).

Prison + PPS Can't Exceed Statutory Max

You can't get 60 months prison and 24 months PPS on a C felony. Even if the judge says that the PPS shall be reduced by whatever amount is necessary to make the total actual time less than 60 months statutory maximum. In that case it's an indeterminate sentence, which is also not allowed. State v. Powell, __ Or App __ (2012).

Defense Attorney Scheduling Does Not Waive a Defendant's Speedy Trial Request

A defendant who requests a speedy trial pursuant to ORS 135.760 may later waive that right if the waiver is intentional and unequivocal. Here, defendant did not personally and intentionally waive his right to a speedy trial when trial dates outside of the 90-day period were set via email between defense counsel and the DA. State v. Benner, __ Or App __ (2012).

Officer's Failure to See Evidence Does Not Make Suspicion Reasonable

The court holds that an officer did not have reasonable suspicion to stop defendant for criminal trespass when he saw her on an elevated walkway between two shopping centers. Although each of the shopping centers had no trespassing signs posted, the sign on the walkway stated "no trespassing between 11 pm and 7 am", and the officer saw defendant on the walkway around 10pm. The fact that the officer claimed that he did not see the sign was irrelevant because the walkway is physically distinct from the shopping centers where access was restricted. State v. Musser, __ Or App __ (2012).

Bases For Appointment of a Guardian Ad Litem

Father's tendency to ramble and veer off-point provided sufficient evidence for the trial court to appoint a guardian ad litem for father during his parental-rights termination proceedings because he was unable to direct and assist his counsel. Further, due process does not require proof that the guardian consulted with father before entering into a stipulated judgment terminating father's parental rights. DHS v. K.L.W., __ Or App __ (2012).

Opening Vehicle Hatch Manifests Consent to Search

Opening the back hatch of a vehicle, in response to an officer's request to search the back of the vehicle, constitutes consent to the search; it is not "mere acquiescence" to the officer's actions. State v. Pickle, __ Or App __ (2012).

Per Curiams:

• The automobile exception does not apply to a search of defendant's person if defendant is standing outside the vehicle when the search occurs. State v. Jones, __ Or App __ (2012).

• The trial court erred in failing to merge convictions for delivery of methamphetamine and delivery of methamphetamine within 1,000 feet of a school. The trial court also erred in failing to merge convictions for first-degree child neglect and endangering the welfare of a minor. State v. Kinsley, __ Or App __ (2012).

Oregon Supreme Court October 18, 2012

by: Stephanie Clark • October 18, 2012 • no comments

Evidence of Prior Bad Acts Not Admissible to Show Intent Unless There's Sufficient Evidence that the Charged Act Occurred

In the absence of evidence sufficient to support a finding that the charged act occurred, similar bad acts are not admissible to show intent. Here, the defense to sex abuse was that the defendant didn't do it. Since no evidence had been presented yet, the trial court should not have denied defendant's motion in limine to exclude uncharged sexual misconduct. Instead, the court should have found the evidence admissible only on the conditions that (1) the state presents sufficient evidence at trial that the charged act occurred and (2) there be a jury instruction permitting consideration of the prior acts only after a finding that the charged act occured.

The Court also holds that prior uncharged sexual misconduct between a defendant and victim may be admissible to "bolster" a victim's identification of the defendant. Here, however, there was no need to strengthen the identification of the defendant because the victim and defendant had "continuous, ongoing contact." State v. Pitt, __ Or __ (2012).

Oregon Appellate Court October 17, 2012

by: Erick Tobias • October 18, 2012 • no comments

Mens Rea Jury Instruction Must be Statute Specific

The state must prove mens rea with regard to the specific elements of the substantive criminal statute. Here, defendant was charged with second-degree criminal mischief requiring "damages." Damages are a result not a circumstance Thus, a jury instruction defining reckless as awareness and conscious disregard of "a risk that a result will occur or that a circumstance exists" was reversible error. State v. Davis, __ Or App __ (2012).

Officer's Decision to Impound Vehicle, And Thus Conduct Inventory, May Be Discretionary

An officer's decision to impound a vehicle may involve the exercise of discretion, even though that discretion will determine whether an inventory of the vehicle occurs. The Portland Police Bureau towing policy mandates towing and inventorying a vehicle when citing a driver for driving uninsured, but not when citing for failure to carry proof of insurance. An officer may constitutionally choose which citation to issue. State v. Penney, __ Or App __ (2012).

First Degree Criminal Mistreatment Not Applicable to Affirmative Conduct

"Withholding necessary and adequate…physical care" under ORS 163.205(1)(a) does not apply to affirmative conduct or a failure to stop engaging in that affirmative conduct. Here, defendant's act of placing her hand over the victim's mouth leading to victim's death did not constitute first-degree criminal mistreatment. State v. Kaylor, ­__Or App__ (2012).

Theft by Receiving - Defendant "Knows" Property Was Subject of Theft Where He Knew the Victim Disputed His Right to Possess the Items

"[I]n order to be found guilty of theft by receiving, defendant must have known or believed that the articles of personal property at issue were the subject of theft." Here, the victim was in the hospital and asked defendant to sell his property and give the money to victim's wife. Instead, the defendant retained the property to settle a debt that the defendant felt victim owed to him. A year later, the victim tried to recoup the property, and the police contacted defendant. The court holds that a rational trier of fact could have found that the defendant knew the property he retained was the subject of theft. State v. Smith, __ Or App __ (Oct 2012).

Relevancy of "Delayed Reporting" Testimony in Sexual Abuse Cases

Expert testimony regarding "delayed reporting" in a child sexual abuse case may be relevant even when defendant does not intend to impeach the complainant's credibility based on that delay. Here, testimony on delayed reporting was relevant to explain the five-year reporting delay and to counter any inference that the delay was indicative of fabrication. State v. White, __ Or App __ (2012).

Oregon Supreme Court October 11, 2012

by: Stephanie Clark • October 12, 2012 • no comments

The State Cannot Rely on Principal Liability on Appeal when they Relied on Accomplice Liability at Trial

When the state solely argues at trial that defendant is liable for first-degree assault as an accomplice, due process precludes affirming that conviction on appeal based on a new theory that defendant was a principal actor in the assault. State v. Burgess, __ Or __ (2012).

Anonymous Juries

An anonymous jury is permitted "only when there are strong grounds for believing that the jury needs the protection of anonymity and the trial court takes reasonable precautions to minimize the prejudicial effects on the defendant." Here, even though defense counsel knew the identities of the jurors, the jury was nonetheless anonymous because the defendant did not. The trial court made no findings, as required, that the circumstances of the case justified empanelling an anonymous jury. Moreover, the trial judge's instruction to the jury that anonymity was to protect them from the public and the press did not negate the prejudicial implication that defendant was dangerous.

Evidence of past nonviolent, homosexual conduct is admissible to show that a defendant is a "continuing threat" to society only if the state presents evidence of "a close link" between that sexual history and future dangerousness. Here, evidence that defendant murdered his female victims to fulfill sexual urges insufficiently linked his past homosexual activity to the future danger of defendant doing the same to other male prison inmates.

Defendant also challenged the constitutionality of Measure 6 (1984) on the basis that it made multiple changes and additions to the Oregon Constitution that required a separate vote under Article XVII, section 1. The Court recognized only four of the fifteen changes raised by the defendant and held that the changes were too closely related to require an additional vote.

State v. Rogers, __ Or __ (2012).

Oregon Appellate Court October 10, 2012

by: Stephanie Clark • October 10, 2012 • no comments

Overtime Payments to State Employees Are Not a Recoverable Cost of Prosecution

"Unforeseeable and unbudgeted" salary-related payments to state employees are not a "specially incurred" cost of prosecution recoverable under ORS 161.665(1). Here, overtime police expenditures for guarding defendant in the hospital were not recoverable. State v. Kuehner, __ Or App __ (2012).

PCR > Inadequate Advice about Stipulated Facts Trial

A defense attorney's advice is constitutionally deficient when it inaccurately informs client that a stipulated facts trial will preserve an issue for appeal that is, instead, unpreserved. Here, defendant's attorney told him that a stipulated facts trial on his DUII would preserve appeal on the issue of whether he was eligible for diversion. However, defendant's stipulation to the victim's injury made defendant ineligible for diversion under ORS 813.215(1)(j)(B).

Koch v. State, __ Or App __ (2012).

Oregon Appellate Court - October 3, 2012

by: Sduclos • October 3, 2012 • no comments

ECSA > Plain Error to Allow Conviction Based on What Defendant Could Have Done with Images

It is plain error to convict defendant of Encouraging Child Sexual Abuse (ECSA) based only on the presence of images in his computer's automatic cache of internet files. At defendant's trial for ECSA, the prosecutor used the theory that defendant "controlled" and "possessed" images because defendant could have saved, printed, or downloaded the files. Defendant objected to testimony on the issue based on relevance. However, defense counsel never argued the issue at the motion for judgment of acquittal, so the insufficient proof issue was not preserved on appeal. The court reverses on a plain error basis because the law is not reasonably in dispute, and to let the conviction stand would be a grave error. See also, State v. Barger,and State v. Richie. State v. Tilden, ___Or App __ (10/3/12).

==

Per Curiam

Dependency - The court rehears and adheres to its former opinion that proof of mother's past medical neglect of a sibling does not pose a current risk of harm to the juvenile. Dept. of Human Services v. L.G., __ Or App __ (2012) (per curiam).

Oregon Appellate Court September 26, 2012

by: Stephanie Clark • September 27, 2012 • no comments

Right to Jury Trial > Misdemeanor Prosecuted as Violation

Where the DA elects to prosecute a misdemeanor as a violation, the defendant is entitled to a jury trial if the prosecution and conviction "retains the characteristics of a criminal prosecution." The court looks to the type of offense, the nature of the prescribed penalty, the collateral consequences associated with conviction, the significance of the conviction to the community, and the pretrial practices associated with arrest and detention for the offense to determine if a prosecution retains criminal characteristics. Brown v. Multnomah County Dist. Ct., 280 Or 95 (1977). Here, charges for third-degree theft and attempted first-degree theft prosecuted as violations, entitled the defendant to trial by jury because:

• Theft has been a crime recognized by society for a very long time.
• The nature of the $6,250 maximum fine imposed under attempted first-degree is criminal.
• A defendant can be arrested and detained for theft, regardless of whether prosecuted as a misdemeanor or a violation.

State v. Fuller, __ Or App __ (2012).

A Belief is Reasonable (or not) Based on What the Officer Knew at the Time

When assessing whether an officer's subjective belief is objectively reasonable, the court should not consider other benign explanations for defendant's behavior or evidence gathered after the stop. State v. Ellis, __ Or App __ (2012).

Speedy Trial > Notice Need Not be Received by Mail

A delay caused by a defendant's failure to appear is reasonable if the defendant received notice of the missed court date. A defendant is not required to receive notice by mail. Here, defendant received notice via prior hearings and agreements with the court, and notices sent to his last known address and given to his attorney. State v. Stephens, __ Or App __ (2012).

Where a defendant failed to inform the court of her current address as required by her conditions of release and notice is sent to her most recent address on file, the resulting delay from failure to appear is reasonable. State v. Turner, __ Or App __ (2012).

Trial Court's Mistaken Reliance on Inapplicable Statutes Does Not Vitiate Finding of Probable Cause

Though the trial court mistakenly relied upon statutes that defendant could not have violated, the facts as the officer perceived them satisfied the elements of a traffic infraction. Therefore the officer had probable cause to stop defendant. That the statutes relied upon by the state on appeal were different than those cited by the trial court was irrelevant; neither side argued any statutes before the trial court, both sets of statutes involved the same operative facts, and the pertinent facts were recorded on video. State v. Ordner, __ Or App __ (2012).

Consent to Search > Invalid when Obtained by Knocking on Back Door

Police violated defendant's constitutional rights by trespassing onto the curtilage of his home and knocking on the back door. The trespass tainted defendant's consent to search the home, and therefore, all evidence subsequently obtained is suppressed. State v. Unger, __ Or App __ (2012).

Stop > No Reasonable Suspicion from Standing Next to Intoxicated Friend in Parking Lot

Defendant was stopped when police took and retained his ID for a warrant check. No reasonable suspicion supported the stop when he was standing with his girlfriend next to a parked car while police detained his intoxicated friend. The evidence subsequently obtained that defendant had driven under the influence of alcohol was a result of the unlawful stop and is suppressed. State v. Smith, __ Or App __ (2012).

Speedy trial > Cumulative Delay of 19 Months Attributed to State Unreasonable in a Misdemeanor

A cumulative period of 19 months, attributable to the state, in a misdemeanor case is unreasonable even though 14 months of the time is reasonable. The courts have generally concluded that state-caused delays over 15 months are generally unreasonable, though in prior cases the majority of the delay was unjustified. Here, defendant was charged with misdemeanor DUII. The state's delay was attributed to various errors including (1) the court's unexplained docket error, (2) the state awaiting a decision in Machuca, (3) rescheduling due to jury selection in a death penalty case, and (4) various scheduling conflicts. The court held that the unexplained docket error (accounting for 5 months) was not adequately explained and was therefore unjustified. Although the other delays were "routine scheduling delays," the cumulative period of nineteen months in a misdemeanor case was unreasonable. State v. Peterson, ___ Or App __ (2012).

Physical Restraints at Trial > Oregon and Federal Due Process Requires the Court to Find Defendant Posed an Immediate and Serious Risk Before Placing Her in Physical Restraints at Trial

To restrain a defendant during trial, the judge must independently find on the record that, "the defendant posed an immediate or serious risk of committing dangerous or disruptive behavior, or that he posed a serious risk of escape." Where the court restrains a defendant during trial without "substantial justification," the defendant suffers "manifest prejudice," regardless of whether the restraints are visible to jurors. Here, the jail placed defendant in a leg restraint based on their classification of her as a "medium risk." Although defendant had 13 prior felony convictions, none involved escape or anything suggesting a flight risk. She wore pants and a dress to cover up the restraint, and the court was willing to allow her to take the stand and leave the stand outside the presence of the jury. Instead, Defendant entered a conditional guilty plea. The court holds that the trial court was not authorized to defer to the jail's classification without particularized evidence that justified it. State v. Wall, ___ Or App ___ (2012)

Motion to Withdraw Admission does not Preserve Juvenile's Argument that Waiver of Counsel was Not Knowing, Voluntary and Intelligent

Youth's motion to withdraw her admission did not preserve her argument that she did not validly waive her right to counsel because counsel did not argue it in the motion or the hearing. Here, Youth had waived her right to counsel at the time of the admission. Her Counsel's motion to withdraw the admission because Youth did not understand what she was admitting did not preserve a claim that her waiver of counsel was not knowing and voluntary. State v. CS, __ Or App __ (2012)

PCR > Must Have a Tendency to Affect the Result of Trial

The following errors were not sufficient for post-conviction relief because of the ample evidence of defendant's guilt:

(1) Defense counsel's failure to object to detectives' hearsay statements that both co-defendants had implicated the other in the crime.

(2) Defense counsel's failure to call a cell phone expert to dispute the state's evidence that the cell tower data from defendant's phone did not necessarily mean that he was in Springfield, rather than in Eugene.

(3) Defense counsel's failure to call a witness who would testify that the defendant had told her that co-defendant was going to do the robbery so that she could warn the victims and police. Counsel had subpoenaed the witness, and she failed to appear.

(4) Failing to timely object to a discovery violation.

Derschon v. Belleque, __ Or App __ (2012).

Per Curiams:

• The trial court plainly erred in using the crime seriousness score of 7 to impose sentences on 12 counts of second-degree sexual abuse under the court's prior decision in State v. Simonson, 243 Or App 535 (2011). State v. Burge, __ Or App __ (2012) (per curiam).
• Challenged evidence of defendant's prior conviction for fourth-degree assault was improperly admitted in trial for first-degree criminal mistreatment. State v. Grisham, __ Or App __ (2012) (per curiam).
• Both parties agree the evidence was insufficient to support defendant's involuntary commitment. State v. P.F., __ Or App __ (2012) (per curiam).
• Both parties agree the evidence was insufficient to support defendant's continued involuntary commitment. State v. P.F., __ Or App __ (2012) (per curiam).
• The trial court plainly erred by 1) imposing a unitary assessment on defendant's attempted murder conviction and 2) imposing a 144-month sentence on defendant's second-degree assault charge. The court remands the case for resentencing. State v. Battles, __ Or App __ (2012) (per curiam).
• The court remands for resentencing with instruction for trial court to merge guilty verdicts for first-degree rape and second-degree sexual abuse into a single conviction for first-degree rape. State v. Ledford, __ Or App __ (2012) (per curiam).
• The trial court erred in finding that defendant's child was within jurisdiction of juvenile court. The child's welfare must be endangered at the time of the hearing, not simply at some point in the past. DHS v. R.V., __ Or App __ (2012) (per curiam).
• The trial court plainly erred in entering misdemeanor convictions for four counts of contempt and by imposing unitary assessments. State v. Quade, __ Or App __ (2012) (per curiam).

Oregon Supreme Court September 20, 2012

by: Stephanie Clark • September 20, 2012 • no comments

Defendant in Stalking Case Entitled to Jury Trial on Compensatory Damages

A defendant in a case for compensatory damages under the civil stalking statute, ORS 30.866, is entitled to a jury trial. Article I, section 17, and Article VII (Amended), section 3 of the Oregon Constitution preserve the right to a jury trial in all claims "at law" (as opposed to claims in equity). The Court rejects the plaintiff's contention that the right cannot attach to a newly created statutory claim that is not "of like nature" to a claim triable by jury at common law. Instead, looking to the "nature of the relief sought," a claim for compensatory money damages under ORS 30.866 is legal (rather than equitable), and therefore, entitles the defendant to a trial by jury. M.K.F. v. Miramontes, __ OR __ (2012).

Alternative Writ of Mandamus > Discretionary Dismissal

Defendant filed a petition for an alternative writ of mandamus, seeking to compel the trial court to modify the conditions set forth in a pretrial release agreement that barred contact with his father, a potential state witness. Defendant argued in his petition that the trial court had no statutory authority to impose the no-contact condition. The court dismisses the writ under its discretionary power because defendant conceded at oral argument that the trial court had the statutory authority to bar contact but contended that the facts did not support the condition, changing the legal question presented. State v. Blok, __ Or __ (2012).

Oregon Appellate Court September 19, 2012

by: Stephanie Clark • September 19, 2012 • no comments

PCR > Ineffective Counsel > Failure to Request Lesser Included Offense Instruction in Bench Trial

Failure to request a jury instruction for conviction on a lesser degree of assault than second-degree was constitutionally inadequate assistance. Defendant was prejudiced regardless of the fact that it was a bench trial. Bostwick v. Coursey, __ Or App __ (2012).

Dependency > Required Findings > Change of Permanency Plan

When a trial court changes a permanency plan from reunification to adoption, it must make the factual findings required under ORS 419B.476(5)(a). Here, the trial court attempted to adopt DHS's factual findings, but did not explicitly state or attach the findings to which it referred. Dept. of Human Services v. H.P., __ Or App __ (2012).

Per Curiams

• Restitution - The court remands a restitution order because the lower court impermissibly awarded damages partially based on "conduct for which defendant had not been convicted and did not admit having committed." Here, the trial court awarded damages in a telephonic harassment case for such things as medical expenses, a new phone, and gas expenditures.State v. Barker, __ Or App __ (2012).
• Sentencing - The trial court erred when it orally imposed the presumptive probationary term of 18 months and later imposed an enhanced 24-month sentence in the written judgment without making any supportive factual findings. State v. Dimmick, __ Or App __ (2012). Per Curiam.

Note: The State v. Christian opinion was accidentally posted to the Oregon Appellate Court page, but was originally issued March 21, 2012.

Oregon Appellate Court September 12, 2012

by: Erick Tobias • September 12, 2012 • no comments

DUII > Exigency > Probable Cause of Controlled Substance Justifies Warrantless Seizure of Urine

Defendant was arrested for DUII. Following DRE, defendant's urine tested positive for Oxycodone. The court holds that the results were lawfully obtained under the exigent-circumstances exception to the warrant requirement because once police have probable cause to believe evidence of a controlled substance will be in a suspect's urine, an exigency exists. State v. Fuller, __ Or App __ (2012).

Reasonable Suspicion > Recent Drug Use Does Not Support Belief of Present Possession

Previous drug use does not provide reasonable suspicion of present drug possession.

During traffic stop, Defendant displayed signs of meth use, though not enough to warrant a DUII investigation. Based on those signs, the officer suspected defendant had more drugs. He obtained consent to search her purse and found meth. The court holds that signs of recent meth use like nervousness and grinding teeth do not support reasonable suspicion of present meth possession. State v. Farrar, __ Or App __ (2012).

Emergency-aid exception > Evidence of Suicidal Behavior not Evidence of Assault or Homicide

Officer's opening of defendant's front door was not justified by the emergency-aid exception to the warrant requirement where defendant did not immediately answer the door after police subdued his suicidal roommate. Evidence of suicidal behavior does not lead directly to a reasonable belief of assaultive or homicidal behavior. Consent to search was not attenuated from the illegal entry just because the officer's feet did not enter the apartment. State v. Lorenzo, __ Or App __ (2012).

Per Curiam -- Where a petition for a stalking protective order relies on speech based contacts, the petitioner must establish that the contacts"instill[ ] in the addressee a fear of imminent and serious personal violence from the speaker, [are] unequivocal, and [are] objectively likely to be followed by unlawful acts." E.O. v Cowger

Oregon Appellate Court September 6, 2012

by: Stephanie Clark • September 6, 2012 • no comments

Impartial Magistrate > Inception Order Not Unlawful When Issued by Judge Previously Assigned to Case as DA

A judge who signs a body-wire order for a case to which he was assigned years earlier as a DA does not lack the "neutrality and detachment" required for the issuance of such an order.

The court assumes that the "neutral and detached" standard required of judges issuing warrants also applies to inception orders. Here, the issuing judge-years earlier assigned to the gang-related murder case as a DA-was sufficiently "neutral and detached" because:

1. He was "severed and disengaged" from law enforcement activity. He had no affiliation with law enforcement at the time that he reviewed the order application.

2. Under an objective appraisal of "psychological tendencies and human weakness," his previous involvement in the investigation-viewing the crime scene, attending an autopsy, and acting as assigned attorney-did not amount to unconstitutional bias. State v. Hale, __ Or App __ (2012).

Oregon Appellate Court August 29, 2012

by: Sduclos • August 29, 2012 • no comments