Oregon Appellate Ct - Sept. 10, 2015
by: Abassos, Alarson and Cmaloney • September 10, 2015 • no comments
Probable Cause – Driving 32MPH in a 35MPH Zone at Night Is Not PC of Driving Too Slow In Left Lane
Defendant was pulled over for driving under the speed limit in the left-hand lane (ORS 811.315 - failure of a slow driver to drive on the right), and was subsequently arrested for DUII. Defendant was driving 32 MPH late at night through an urban area with a posted speed of 35 MPH. At the MTS hearing, the defendant presented the Oregon Driver’s Manual, which advises night drivers to reduce their speeds for safety. Because the facts do not support the conclusion that defendant’s speed was less than the normal speed under the circumstances (an element under ORS 811.315), the officer’s subjective belief of a violation was not objectively reasonable. Accordingly, the traffic stop was not supported by probable cause. State v. Murphy 273 Or App 566 (2015).
Other Bad Acts Evidence – 403 Balancing Required for 404(4) Evidence
“[W]hen a defendant requests a balancing test “in a prosecution for child sexual abuse, the admission of ‘other acts’ evidence to prove character and propensity under OEC 404(4) depends on whether the risk of unfair prejudice outweighs the probative value of the evidence under OEC 403. State v. Williams, 357 Or 1, 20 (2015).“ Here, defendant, charged with sex abuse of his granddaughter, requested that the court apply the balancing test to evidence of a previous sex abuse conviction. Because the court refused to conduct a OEC 403 balancing test, it was error to admit the evidence.
State v. Dunn, 160 Or App 422 (2001), State v. Leach, 169 Or App 530 (2000), State v. Cavaner, 206 Or App 131 (2006), and State v. Phillips, 217 Or App 93 (2007) (holding that OEC 404(4) prohibits a court from performing OEC 403 balancing on other acts evidence) are no longer good law in relation to their holdings on OEC 404(4) and OEC 403.
State v. Brumbach 273 Or App 552 (2015).
Merger – A "Sufficient Pause" Occurs Only Through Defendant’s Conduct, Not the Conduct of Others
When determining whether there was a sufficient pause for merger purposes, the focus is on defendant’s conduct, not the conduct of codefendants. If there was a sufficient pause in the defendant’s criminal conduct to afford the defendant the opportunity to renounce his criminal intent, then the convictions do not merge. Here, the defendant and three other men jointly removed the victim’s clothing at his apartment and then defendant filmed the three men having intercourse with the victim. Defendant was convicted of three counts of using a child in a display of sexually explicit conduct. The state argued that the convictions should not merge because each time the men changed sexual positions there was a pause in the sexual conduct that gave the defendant the opportunity to renounce his criminal intent. The court rejects this argument because there was no evidence suggesting that there was a pause in defendant’s criminal conduct. Accordingly, the court should have merged the three convictions. State v Howe, 273 Or App 518(2015)
Probable Cause - Traffic Violation - Probable Cause of a Violation May Exist Even If the Violation Never Occurred
Probable cause of a traffic violation exists where:
- (1) the officer subjectively believes a violation occurred; and
- (2) the facts perceived by the officer establish the elements of a traffic offense
Whether a violation actually occurred is not central to determining probable cause. Here, the trial court found that the officer’s testimony was truthful but that he was mistaken in his belief that defendant made an illegal u-turn. Even though the trial court found there to be no violation, there was still probable cause if the facts that the officer mistakenly thought he saw established the elements for an illegal u-turn. Remanded for further findings. State v Gordon, 273 Or App 495 (2015)
Plain Error Review - The Error Assigned Must Not Reasonably Be In Dispute
The trial court in this case revoked defendant’s probation and then, later the same day, tried to vacate the judgment and continue probation. The state objected, arguing that the court lost jurisdiction once the judgment was completed. The trial court agreed but specifically tried to have the issue decided by the appellate court. On appeal, the defendant only assigned error to “the lack of record regarding whether the judgment had been executed”. This was part of a larger argument that the judge continued to have jurisdiction over the judgment of probation revocation until it was executed. Since it wasn’t executed until the defendant was transferred to the DOC and there was no evidence that defendant had been transferred to the DOC, the judge still had jurisdiction. However, since no statute requires a judge to make findings regarding the execution of a sentence, the specific error assigned was, at least, in dispute. State v Flores-Celestino, 273 Or App 576 (2015).
PCR - Preservation
Where petitioner failed to oppose defendant’s motion to dismiss, he failed to preserve any argument that it should not have been dismissed. Here, the state moved to dismiss petitioner’s fourth claim on the basis that no documentary evidence was attached in support of the claim. Petitioner not only didn’t oppose the motion, he repeatedly stated that he had “no evidence to support that allegation at this time”. Thus, petitioner’s argument on appeal that an affidavit submitted for the third claim sufficed for the fourth claim as well, was not preserved for appeal. Affirmed. Schultz v Franke, 273 Or App 584 (2015)
