Oregon Appellate Ct - Aug. 26, 2015
by: Abassos, Alarson and Cmaloney • August 30, 2015 • no comments
Right to Remain Silent – Officer Question That Prompts Invocation May be Admissible If Relevant and There's No Adverse Inference From Invocation
Where a defendant invokes the right to remain silent in response to an officer's question, the pre-invocation question may be introduced later in trial to provide context for subsequent voluntary incriminating statements, so long as the questions are relevant and do not draw the jury to an adverse inference of defendant’s invocation. Here, defendant was stopped for driving under the influence of methamphetamine. The officer asked whether the defendant had used drugs, and the defendant invoked. However, the defendant later voluntarily made incriminating statements about drug use while in custody, which were admitted at trial. In opening statement, the prosecutor mentioned the officer’s question about drug use and defendant’s later voluntary responses. The court did not err in allowing the prosecutor’s statements because (1) the questions provided context to the defendant’s later statements about drug use and (2) the statements were presented as clearly volunteered, without any inference to defendant’s invocation. State v. Jay, 273 Or App 373 (2015)
Self-Defense – Defendant’s Admission of Injury to Another Not Required to Claim Self-Defense
A defendant need not admit to assaulting or injuring another in order to claim self-defense. Here, in the course of working at care facility, the defendant had an altercation with an autistic patient and was convicted of Criminal Mistreatment-I and Assault-4. Evidence was presented that the patient was combative with the defendant and the defendant knowingly extended his arm towards the patient to prevent the patient from biting him. The court rejects the trial court’s ruling that the defendant must admit to causing injury before being entitled to a claim of self-defense. Because the evidence indicated that defendant’s movement was intending to thwart the patient’s attempt to bite him, that evidence was sufficient to claim self-defense. Remanded. State v Strye, 273 Or App 265 (2015).
Search and Seizure – Walking Away from Property Does not Relinquish Property Interest
For purposes of Article 1, section 9, neither putting an object on the ground nor walking away relinquishes one’s property interest in that object. Here, defendant was approached by an officer regarding a hit-and-run. The defendant set down a bottle of water and a Mcdonald’s food bag while conversing with the officer. The defendant then accompanied the officer over to the defendant’s vehicle—located across the street—leaving the items where he had set them down. They spoke for another 10-20 minutes. Due to increased suspicion of the defendant, another officer went to pick up the Mcdonald’s bag where defendant had left it, searched the bag absent a warrant, and discovered methamphetamine. The court held that despite the apparent “low-value” of the food bag and bottle, the facts were insufficient to conclude that defendant’s statements and conduct demonstrated that he had abandoned the McDonald’s bag at the time that the officer opened it. State v. Brown, 273 Or App 347 (2015).
Expert Witness – Detectives May Opine As Expert on Delayed Reporting With Proper Training & Experience
To be an expert under OEC 702, a person simply must have the “knowledge, skill, experience, training or education” to provide testimony “in the form of an opinion or otherwise” regarding the “particular topic” on which the person claims expertise. Here, the defendant was charged with sex abuse and unlawful penetration of his daughter, who did not report the incident until years later. A detective testified as an expert on the different reasons why victims of either sexual abuse or domestic abuse might not report such abuse immediately. The court found that the detective’s training—multiple trainings on delayed disclosures in child abuse cases—and the detective’s experience—ten years in law enforcement with multiple investigations involving delayed disclosure—sufficient to allow the detective to testify. State v. Althof, 273 Or App 342 (2015).
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[Department of Human Services v. T. M. S. – insert title]
A mother and her child appealed the juvenile court’s judgment changing a permanency plan from reunification to adoption. Three arguments were raised on appeal: (1) mother had made sufficient progress in the services provided to her to allow the child to return home, and, as a consequence, a compelling reason existed to determine that filing a termination petition would not be in the child’s best interest, ORS 419B.498(2)(b)(A); (2) the bond between mother and child is a compelling reason to determine that filing a termination petition would not be in the child’s best interests under ORS 419B.498(2)(b)(B); and (3) the failure to complete an updated psychological evaluation before the permanency hearing constituted a failure to provide sufficient services under ORS 419B.498(2)(c). The court rejected each of these arguments. There was not a compelling reason to preclude the filing of a termination petition when the mother repeatedly had drug relapses and was not consistently participating in services. Furthermore, the child’s expression of love for her mother and opposition to adoption were insufficient to constitute a compelling reason to preclude filing a termination petition. Additionally, there was not a failure to provide sufficient services when the psychological exam that had been ordered to occur after the DHS hearing was to assess the mother’s progress and the record did not indicate that the department failed to provide services consistent with the case plan.
Department of Human Services v. T. M. S., 273 Or App 286 (2015) [1]
[State v. Vanornum – insert title]
The Supreme Court remanded this case finding it was plain error for the trial court to use Uniform Criminal Jury Instruction (UCrJI) 1227 (describing when a person is allowed to use physical force for self-defense in response to an officer’s use of unreasonable force when making an arrest). The Supreme Court had previously decided that (UCrJI) 1227 was an incorrect statement of law (which has since been revised). The Court of Appeals exercised their discretion to consider the defendant’s claim of plain error. The court found that had the jury been correctly instructed on the law the outcome of the case might have been different. Furthermore, preservation would not have made a difference in this case because the trial judge said he was “pretty unlikely’ to accept an alternative jury instruction. The court held that gravity of the error and the ends of justice required them to exercise their discretion to correct the error and remanded for a new trial. State v. Vanornum, 273 Or App 263 (2015) [2]
[State v. Miles – insert title]
The definition of “sexual contact” in ORS 163.305(6) contains the term “intimate parts.” Case law has clarified that for a body part to be considered in intimate “the part must be subjectively intimate to the person touched, and either known by the accused to be so or to be an area of the anatomy that would be objectively known to be intimate by a reasonable person.” Furthermore, a body part is considered to be subjectively intimate when a person ordinarily allows it to be touched only by people with whom the person has a very close personal relationship. Defendant argued that there was insufficient evidence to support his sexual abuse conviction because the three-year-old victim was too young to have a subjective belief that her hips and legs were “intimate parts.” Defendant also argued it was an error to exclude his proffered expert testimony regarding the capacity of three-year-old children for understanding intimacy and intimate parts for reasons of language development. The court held there was sufficient evidence to establish that the victim subjectively believed that her hips and legs were intimate parts that were only touched by those close to her, such as her parents. Furthermore, it was not an error to exclude the defendant’s expert testimony because whether a child abstractly understands the concept of intimacy in terms of language acquisition is not required to assess a subjective belief that a body part is intimate. State v. Miles, 273 Or App 271 (2015) [3]
