Oregon Appellate Ct - June 18, 2014

by: Abassos, Lisa Fitzgerald, Katie Watson, Sam Robell, Evan Ottaviani and Tim OConnor • June 18, 2014 • no comments

Dependency - An Appeal of Jurisdiction is Moot Once Jurisdiction is Terminated

A parent may not appeal the juvenile courts underlying jurisdictional judgment once a parent regains custody over their child, and the juvenile court terminates jurisdiction and wardship over the child. Mother and father lost jurisdiction over T based on the allegation that (1) mother had a substance abuse problem that presented a risk to T, and (2) that father did not have an order granting him sole legal custody of T and therefore, is unable to protect T from mother. Parents then appealed the juvenile courts determination, after the juvenile court had dismissed jurisdiction and terminated wardship over T, claiming that the original judgment presented collateral consequences. The court stated that the parents only presented claims—that the future possible actions by DHS and possible prospective employment – “are mere possibilities and purely speculative.” The court dismissed the appeal as being moot. Dept. of Human Services v. B. A., 263 Or App ___ (2014).

Miranda Warnings Communicate a Restriction of Freedom

Miranda warnings may be reasonably interpreted by an individual, during the beginning of a consensual encounter with police, as a means of restricting their freedom. “Miranda warnings are required only in circumstances where a person is not free to leave. . . a person given those warnings in [similar circumstances] would interpret them as communicating some restraint on his or her freedom.” In this case defendant’s wife was asked, partly in front of defendant, about a vehicle that was crashed in a nearby ditch. Defendant’s wife stated she had crashed the truck so that she wouldn’t run over a dog in the street. Police viewed defendant sitting behind his wife and asked him to exit his home to come outside to talk. Police then walked defendant down to a flat area to perform a field sobriety test, where defendant was read his Miranda warnings, and asked to consent to a pat-down. The officer’s actions, when viewed under the totality of the circumstances, constituted a show of authority rendering the encounter as a stop. Reversed and remanded. State v. Charles, 263 Or App ___ (2014).

Katie

A Pre-Mills MJOA on Venue Should be Remanded to Give Defendant an Opportunity to Object Properly

Where defendant, prior to State v Mills, unsuccessfully challenged venue via MJOA, the case should be remanded to the trial court to allow the defendants an opportunity to object to venue. In Mills, the Supreme Court held, contrary to its prior decisions, that the Oregon Constitution does not require the state to prove venue beyond a reasonable doubt, and the criminal defendant, instead, has a waivable right to object to improper venue by way of a pretrial motion. Here, given the state of the law before Mills, it would be unfair to conclude that the defendant had waived his right to challenge venue by waiting until the state had rested its case. State v.Bigsby, 263 Or App ___ (2014).

A DUII suspect who wishes to invoke his Fifth Amendment right to counsel must be clear that he is not merely accepting his more limited right to call an attorney prior to the administration of a breath test under Article I, section 11 of the Oregon Constitution. In determining whether a defendant made an unequivocal, Fifth Amendment request for counsel, the defendant’s statements are viewed in lieu of the totality of the circumstances. Here, the defendant asked to speak to an attorney after being informed by the police officer that he could receive privacy if he chose to call an attorney before deciding whether or not to submit to a breath test. The court held that, in this context, a reasonable officer would have understood the defendant to be invoking his more limited right to speak with an attorney under Article I, section 11 of the Oregon Constitution, rather than his rights to counsel under the fifth amendment, or Article I, section 12. State v. Martinez, 251 Or App ___ (2014).

Tim

Merger-ECSA & using a child in display of sexually explicit conduct- what is necessary to allow defendant an opportunity to renounce criminal intent

Under ORS 161.067(3) when a criminal episode involves multiple violations of the same statute with the same victim, to support multiple charges there must be a sufficient pause in the conduct which gives the defendant an opportunity to renounce the criminal intent. The mere passage of time is not sufficient for this. Also, if there is no brake in the conduct than the incident represents one charge. Here, the defendant took and transferred to his computer three pictures of a minor in his care engaging in sexual conduct and was convicted on three counts of encouraging child sex abuse and using a child in display of sexually explicit conduct. Defendant appealed claiming that the charges should have been merged and the court of appeals agreed. The court reasoned that the charges for the transfer of the pictures must merge because the only evidence that the pictures were not transferred concurrently was “a invariable two second difference” in the time stamp on the transfers. This was not sufficient on its own to show that the files were not transferred concurrently much less that there was a sufficient pause to allow renunciation of criminal intent. The court ruled that the charges for taking the pictures must merge because they all took place during a continuous instance of abuse and there was no evidence of a pause and resumption of the activity. Reversed and remanded as to merger of convictions and affirmed as to all else. State v. Cale, 263 Or App ___ (2014).

Ps. I am not sure if there is common shorthand for the using a child in display of sexually explicit conduct that gets used in practice but if there is please edit it into the headline.

Motor Vehicle- Misdemeanor-Attempting to elude or flee from a police officer-No requirement of evasive maneuver to constitute an attempt to flee from or elude from police Under ORS 811.540(1) the plain meaning of the terms “flee” and “elude” as used in the statue contain no requirement of an evasive maneuver to complete the crime of attempting to flee from or elude a police officer. There is also no requirement that the suspect must have intent to escape. The offense is complete when a person is given a signal to stop and knowingly continues on and refuses to stop. Here, the defendant was driving home and was signaled to stop after speeding, turning without a signal, and rolling through a stop sign. Defendant drove roughly 250 yards to reach his driveway before stopping and was convicted of attempting to flee from or elude a police officer. He appealed his conviction claiming that the statue required that he drive evasively as an element of the crime. The court rejected this argument and affirmed the conviction. State v. George, 263 Or App ___ (2014).

Second-Degree Assault- Mental State- Dangerous or Deadly weapon- The “knowingly” requirement of the crime applies to all elements, including the nature of the weapon used Under ORS 163.175 to be guilty of second-degree assault a person must knowingly or intentionally cause physical injury to another by use of a dangerous or deadly weapon. Here, the defendant struck another man in the face with a broom handle and was convicted. Defendant appealed because the trial court refused to allow him to argue in closing that the state had failed to prove that he knew that a broom handle was a dangerous or deadly weapon when he acted or to request this in the jury instruction. The court reversed the conviction holding that the mental state requirement applied to all the elements of the crime. In reversing the conviction the court also held that the issue was preserved because the defendant had done “something” to provide the trial court with sufficient information to identify and correct the error immediately, if warranted. The court also held that it was abuse of discretion by the trial court to prevent the defendant from arguing a failure to prove a material allegation of the charge in closing arguments, despite the broad discretion and control trial court has concerning content of closing arguments. Reversed and remanded. State v. Fletcher, 263 Or App ___ (2014).

Evan

Sleep is considered “physically helpless” in O.R.S. 163.427(1)(a)(C)- sexual abuse in the first degree. One is “physically helpless,” defined as “unconscious” or “for any other reason . . . physically unable to communicate unwillingness to an act,” when he or she is asleep. Defendant was found guilty of first degree sexual abuse when roommate woke up with defendant’s “hand in her pants in her vagina playing with it.” Affirmed. State v. Marker, 263 Or App ___ (2014).

Towing a car is not lawful under the administrative seizure exception when decision to tow was motivated by suspicions of criminal activity and not the requisite administrative reasons. An ensuing search of the unlawfully seized car is also unlawful if officers were able to obtain enough evidence for the search warrant affidavit from the seizure alone. An officer who orders a car towed must have administrative reasons, such as a hazard in the roadway, in order for the administrative seizure exception to apply. There was no administrative justification for towing defendant’s Jeep when the car was left in a legal parking position in a non-dangerous area. This unlawful seizure could have resulted in an unlawful search, if there was a causal relationship between the seizure and the search. After the seizure, an officer was able to match a decal left at the scene to the Jeep sitting in the impound lot. This evidence was included in an affidavit used to obtain a search warrant. Reversed on seizure issue; remanded for evidentiary decision on extent of connection between seizure and search. State v. Lambert, 263 Or App ___ (2014).

Staleness- evidence to be obtained not consumable or easily marketable Items that are not consumable or easily marketable are not stale for the purposes of obtaining a warrant to search a vehicle. Defendant’s logic that specialized water-testing equipment is more likely to be sold than held for personal use also suggests that a buyer might be difficult to find. Therefore, officer could have reasonable believed that the items were still in defendant’s car. Affirmed. State v. Lambert, 263 Or App ___ (2014).

Tents as buildings under burglary statute Tents are considered buildings when they have been adapted for use as a place of business. Here, the company brought large equipment into the tents that could not be easily moved about the property. Even though the tents were not physically modified, the were “sufficiently adapted from any number of other possible uses for the specific purpose of allowing Carollo to carry on its water-testing business.” Affirmed. State v. Lambert, 263 Or App ___ (2014).

Courtney

Unreasonable delay and speedy trial rights under former ORS 135.747 In determining whether a client’s speedy trial rights have been violated, the court must first determine the relevant amount of delay by subtracting from the total delay any periods of delay that the defendant requested or consented to. Upon finding the relevant amount of delay, the court then determines if that net delay is reasonable. Filing a motion “necessarily entails delay” and is considered “in effect, a request for postponement for a reasonable period of time to rule on that motion” but not “an open-ended agreement to any ensuing postponement, even if there was good reason for it.” A crowded docket is reason for some delay but with a case that has “already been substantially prolonged”, a reason must be given for why that case was not given priority along with other older cases. A choice to place a case in abeyance may be a reasonable choice but such a delay, based on a choice by the DA , is not a delay consented to or requested by the defendant. An unconsented delay of 21 months in a misdemeanor case, which approached the two-year statute of limitations, was unreasonable. State v. Blevins, 263 Or App ___ (2014).

Lisa

Defendant’s Awareness of Trial Date and Location Does Not Establish Voluntary Absence Evidence that a defendant has been informed of the trial date and location is not a sufficient factual basis to establish voluntary absence from trial. Here, the court held that the defendant’s misdemeanor trial should not have proceeded without more evidence that the defendant’s absence was voluntary. Reversed and remanded. State v. Shutoff, 263 Or App___ (2014).

Appeals Must Be Raised within 30 Days and Cannot Address Issues from Judgments Outside That Timeframe Under ORS 138.053 an appeal must be made within 30 days of the judgment and cannot address issues from prior judgments outside the 30 day timeframe. Here, defendant was sentenced in May 2011 and did not appeal the judgment within 30 days. Later, in September 2011 his probation terms were modified and the defendant did appeal that judgment within 30 days. The court held that while issues specific to the probation modification could be addressed, appealable issues from the original judgment in May 2011 could not. The defendant could have appealed those issues within 30 days of the May 2011 judgments. Affirmed. State v. Ritchie, 263 Or App ___ (2014).