Oregon Appellate Ct - May 13, 2015

by: Abassos and Kit Taylor • May 13, 2015 • no comments

Probable Cause - Behavior Intended to Assert One's Privacy Rights Cannot Contribute to PC

A person's behavioral assertion of a constitutionally protected privacy right may not be part of an officer's probable cause calculus. Here, for example, "defendant’s behavior of tightly clutching her purse and refusing a search manifested a desire to protect the privacy of the item and, as such, was an assertion of her constitutional rights." Because the behavior was an assertion of her right to privacy, it could not be evidence of a crime for probable cause purposes:

"When an individual seeks to protect an item and openly asserts his or her privacy rights, that behavior and assertion is neither innately shifty nor sinister—rather, it is constitutionally protected. And, '[a]llowing the police to conduct a search on the basis of the assertion of a privacy right would render the so-called right nugatory.' State v Brown"

Other than defendant's actions toward her purse, the only other support for probable cause of possession of drugs was:

• evidence of historical drug use
• evidence of very recent drug use
• a scale in plain view in defendant's purse

The evidence of past and recent drug use doesn't even amount to reasonable suspicion because of the stacking inferences necessary to get from past drug use to current possession. The scale brings the case closer to probable cause, but other cases have found "a similar constellation of facts" to be insufficient for probable cause. See, for example, State v Lane (marijuana residue, film canister, scale, nervousness and agitation). Reversed and remanded. State v Barker, 271 Or App 63 (2015).

Waiver of the Right to Counsel is Not Knowing If There Is Only an Abstract Appreciation That It Is Risky

A person has not knowingly waived the right to counsel unless the person understands the specific risks involved in proceeding to trial without an attorney. Here, the trial court did not review any specific risks, instead merely indicating in the abstract that risks were involved. Also, defendant did not speak English as his primary language and the colloquy indicated that defendant was not fully understanding the conversation. Nothing else, in the totality of the circumstances, established understanding. Defendant had no prior experience with the criminal justice system, for example, and had been largely unwilling to communicate with his appointed attorneys. Reversed and remanded. State v Kim, 271 Or App 196 (2015).

It Is Not a Search When Police Observe and Download Files Shared on a Peer to Peer Network

A person does not have a privacy interest in digital files shared with others on a peer to peer network. Thus, it is not a search when police use a program to identify the files shared by a person's IP address and download those files. Here, officers used software called Shareaza LE to target already shared network files containing child pornography on defendant's computer. Such “limited observation of particular conduct” is distinct from “prolonged observation” that amounts to “pervasive and constant examination of [defendant’s online activity] throughout his daily life.” See State v Campbell, 306 Or 157, 759 P2d 1040 (1988). The fact that the officers technically got the files from defendant's computer was fine because the software targeted only those files that had been shared on a peer to peer network. That the officers did not know at the time of downloading that the files belonged to defendant was irrelevant because they did know that the files had been shared - so either way there was no privacy interest and it was not a search. State v Combest, 271 Or App 38 (2015).

UUV - Keeping a Vehicle for Three Weeks on a One-Day Rental Contract is a "Gross Deviation From the Agreement"

For the purposes of the UUV statute, using a vehicle 3 weeks after a one-day rental contract has expired is "so lengthy a period beyond the specified time as to render such retention or possession a gross deviation from the agreement.” ORS 164.135(1)(c). Defendant argued in this case that his continued possession of a rented U-Haul truck was not a gross deviation from the agreement because there were clauses in the contract that “contemplated that the truck might be returned late or to a different location.” Furthermore, he argued that his subsequent payment for the unauthorized possession eliminated any gross deviation. The court rejected the fluid contract argument because the agreement stated that “any operation of [the vehicle rented] outside of time agreed * * * is without [U-Haul’s] consent[.]” Had defendant sought to extend the contract, he would have had to make an additional deposit and been issued an updated agreement. Defendant did not pay an additional deposit, was not issued an updated agreement, and failed to respond to U-Haul’s repeated “equipment recovery” requests. Thus, the subsequent payment was irrelevant because the crime was complete when defendant kept the vehicle for an excessive period of time. State v Craine, 271 Or App 101 (2015).

DUII - ORS 813.011 - Mandatory Minimum Sentence for Repeat Offenders Cannot be Suspended or Reduced

The mandatory minimum sentence of 90 days for repeat DUIIs under ORS 813.011 may not be suspended or “reduced in any way”. The plain language of the statute prohibits such reductions. State v Epps, 271 Or App 232 (2015).

Imposition of Attorney Fees is Appropriate if the Court Reasonably Infers that Defendant May Have the Ability to Pay in the Near Future

The court can impose attorney fees if the judge can reasonably infer from the totality of circumstances that defendant may have funds to pay fees in the near future, even absent an “ability-to-pay inquiry.” Here, Defendant argued that the trial court did not establish that he had the ability to pay attorney fees where the record indicated he was “unemployed and indigent.” However, the court rejects that argument because at trial Defendant testified to being a “farm equipment mechanic” who “usually finds jobs.” Furthermore, at sentencing, Defendant stated that despite seasonal layoff, he was “expecting to be going back to work fairly soon in the very near future.” The Court finds that based on Defendant’s statements it was appropriate for the judge to find that defendant may be able to pay the attorney fees. State v Jaimes-Pineda, 271 Or App 75 (2015).

OEC 403 - Exclusion of Relevant Rebuttal Evidence is Permissible to Avoid a “Trial within a Trial”

The court may exclude relevant rebuttal evidence to avoid issue confusion by a jury, and to prevent undue delay if the probative value would be substantially outweighed by the problems caused. See State v. Huffman. Here, the trial court allowed a witness to testify that defendant threatened her on the first day of trial and allowed the defendant to testify that he never threatened the witness. But neither were allowed to testify as to the details or context of the incident that occurred because the judge wanted to avoid a “trial within a trial” on the merits of the incident. The appellate court finds that the value of the contextual details, which both parties conceded were relevant, does not outweigh the possibility that the jury would be confused about the issues that were being litigated an the trial would be unduly delayed. State v Jaimes-Pineda, 271 Or App 75 (2015).

Sodomy I - Forcible Compulsion Must be Knowing

For the purposes of first-degree sodomy, a jury must be instructed that forcible compulsion has a requisite mental state of knowing. Here, however, the court finds the failure to give a proper instruction was harmless error because “there “was no evidentiary basis from which the jury could find that defendant, in engaging in the charged conduct, subjected [complainant] to forcible compulsion but not find that defendant did so knowingly.” Based on the totality of the circumstances, there was nothing in the parties’ history to suggest that such conduct was previously considered acceptable sexual behavior such that defendant “might, plausibly, have not known that he was subjecting [complainant] to forcible compulsion.” This case is distinct from State v Gray, where parties’ relationship as a married couple and their prior sexual relationship put defendant’s mental state of knowing at issue, and failure to properly instruct the jury was therefore not harmless error. See 261 Or App 121, 322 P3d 1094 (2014). State v Ross, 271 Or App 1 (2015).

Child Sex Abuse - Vouching

It was inadmissible vouching when an employee of Child Protective Services testified in a child sex abuse case to:

"the specific amount of details that [the complainant] was able to disclose during the interviews. And then also her—her demeanor in how much this interview[] was affecting it and—and her anger that she had in express- ing her feelings. Those were all collectively what led me to believe that indeed she had been molested.”

However, while the witness's expression of belief in the credibility of the complainant was vouching, the court finds the error to be harmless because the defense attorney did not object, move to strike, or make a mere “repair effort” on cross-examination, but instead questioned the witness extensively on the vouching comment. Defense counsel elicited ‘far more repetitive and detailed exacerbating testimony” that “completely eclipsed” the witness’s prior impermissible statement. State v Ross, 271 Or App 1 (2015).

TPR - Pattern of Conduct Not likely to Change is Sufficient to Terminate Parental Rights

Parent’s pattern of detrimental conduct and “past resistance to help” that amount to an unlikelihood that parent will change is sufficient basis for termination of parental rights. Here, factors amounting to termination included: mother’s criminal history when she interfered with police during a domestic violence dispute; methamphetamine and alcohol abuse; children’s exposure to domestic violence; homelessness; mental illness in the forms of “posttraumatic stress disorder, major depressive disorder in partial remission, and narcissistic and anti-social personality traits”; and failure to “follow through with visitation.” Furthermore, the court finds that mother’s own prediction that she would be able to care for children within a “reasonable time” of six months if she received treatment is not sufficient to prevent termination because her prediction was unlikely to be achieved. Dept. of Human Services v R. K., 271 Or App 83 (2015).

TPR - Short-term Treatment Progress and Desire to Change Not Sufficient to Prevent Termination of Parental Rights

Parent’s short-term treatment and lifestyle progress by trial start date and testimony of “desire to change,” are not sufficient to overcome unfitness to parent or the improbability that unfitness will be overcome within a reasonable time. Here, father’s “abuse of alcohol, domestic abuse, regular criminal behavior, repeated incarceration, and unstable housing” were not overcome by two weeks of alcohol treatment prior to trial, and three weeks of participation in an “aftercare” program. The court finds the case is distinct from State ex rel SOSCF v Armijo, where “the mother had participated for 10 months in residential programs to address her psychological and substance abuse issues.” See 151 Or App 666, 950 P2d 357 (1997). Here, father was recently released from custody, and had not addressed his domestic violence or criminal conduct issues. Additionally, his “conduct and lifestyle” were seriously detrimental to the child who was at risk of long-term attachment and emotional issues and “in need of permanency.” Dept. of Human Services v R. K., 271 Or App 83 (2015).

TPR - Unavailability to Parent Due to Incarceration Alone is Not Sufficient Proof of Serious Detriment to Child

Temporary unavailability to parent due to incarceration is not sufficient to prove serious detriment to the child for the purposes of terminating parental rights. Here, child was removed from mother’s home while father was incarcerated, but affect on child did not rise to serious detriment at time of trial. Similarly, testimony at trial about child’s potential for “emotional distress” due to lack of permanency as a result of foster care did not rise to the level of seriously detrimental. Additionally, while child’s imminent out-of-state move for a foster care placement with an aunt would affect the ability for father and child to develop a relationship during the period of father's incarceration, it would not be to the child’s serious detriment. Finally, father had not exhibited conduct amounting to unfitness to parent. Therefore under the totality of the circumstances, the court finds it is not improbable that the father will be able to integrate child into his home within a reasonable time. This conclusion is consistent with other TPR cases where theory of unfitness was at least partially based on a parent’s incarceration. See State ex rel SOSCF v. Stillman, 333 Or 135, 145- 46, 36 P3d 490 (2001); Dept. of Human Services v. C. M. P., 244 Or App 221, 260 P3d 654, rev den, 351 Or 254 (2011). Dept. of Human Services v R. K., 271 Or App 83 (2015).