Case Reviews
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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 [edit]⇲
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).
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Per Curiam [edit]⇲
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
Oregon Supreme Court - August 23, 2012by: Sduclos • August 23, 2012 • no comments Notice of Appeal from Supplemental Judgment - 30 Day Period Does Not Require Appellate Attorney to Receive Notice [edit]⇲Under ORS 138.071(4), a defendant has 30 days to file notice of appeal from a supplemental judgment "after the defendant receives notice that the judgment has been entered." The statute requires that defendant receives actual, rather than constructive notice of the entry before the 30-day period begins to run, but a "defendant" includes defendant's trial counsel or appellate counsel. Here, Defendant's trial counsel received notice of entry of a supplemental judgment of restitution in November 2009, more than four months after it was entered by the trial court. Four months later, in March 2010, appellate counsel received notice of entry of that judgment and filed notice of appeal. The court holds that because trial counsel was still acting as defendant's agent at the time he received notice of the judgment, "defendant" received actual notice as of November 2009. Thus, his amended notice of appeal in March 2010 was not timely filed. State v. Mullins, ___ Or ___ (Aug 23, 2012). Oregon Appellate Court - August 22, 2012by: Sduclos • August 22, 2012 • no comments
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