Oregon Appellate Court - March 27, 2013

by: Jwestover and Abassos • March 27, 2013 • no comments

DHS Must Make Reasonable Efforts at Reunification with Each Parent

“Reasonable efforts,” under ORS 419B.340(1), “to prevent or eliminate the need for removal of the ward from the home,” and “to make it possible for the ward to safely return home,” must be made for both parents. Here, DHS provided a child’s mother with “parental training, a psychological evaluation, assistance with transportation and housing, supervised visitation, and referrals for services,” but made only one effort, “ICPC home study referral,” on behalf of the father. Notwithstanding the fact that the father lives in Kentucky, the court finds that that DHS’s efforts as to him were unreasonable, and reverses and remands. Dep’t of Human Servs. v. J.F.D., 255 Or App ___ (Mar. 27, 2013).

Bench Trials and Harmless Error

Defendant was alleged to have sexually abused two young girls. One of the girls, J.F., testified that "defendant had also attempted to engage her in certain urine related activities.” The prosecution introduced testimony from three women that defendant had abused them as children and engaged in similar urine related activities. During a bench trial the court convicted defendant on the charges relating to J.F., but acquitted on others. The court here finds that because the trial court expressly stated it was not influenced by the women’s testimony, and that it believed J.F.’s testimony and relied on it in convicting, “even assuming that the admission of the evidence was erroneous, the judgment must be affirmed.” State v. Jones, 255 Or App ___ (Mar. 27, 2013).

Visa Eligibility Relating to Accusations of Abuse Are Relevant Impeachment Evidence

A U visa may be acquired on the grounds that an individual is the victim of abuse. At trial, after being accused of sex crimes by his step-daughter, M, defendant sought to impeach her for bias by asking her questions about her application for a U visa. The trial court would not allow the line of questioning. The court here finds that the U visa application was relevant to M’s motive to fabricate, and thus admissible. Also, because “the jury was not fully informed of matters relevant to an assessment of M’s credibility, which was essential to the case,” the error in excluding it was not harmless. State v. Valle, 255 Or App ___ (Mar. 27, 2013).

Stipulating May Dissuade Appellate Court from Exercising Discretion to Reverse for Plain Error

Stipulating to particular facts may affect rights on appeal, particularly if the objection is otherwise unpreserved. Here, defendant was convicted of, among other things, UUW. The court relied on defendant’s stipulation of the fact that he was “on supervision” at the time of the crime in imposing an upward durational departure of 60 months. This violated ORS 136.773(1), which requires submission of enhancement facts to a jury “unless defendant makes a written waiver of the right to a jury trial on the enhancement fact.” On review, the court assumes plain error occurred, but refuses to exercise its discretion to remedy, stating that “because he stipulated to the enhancement fact, defendant was not prejudiced by any error.” [http://www.publications.ojd.state.or.us/docs/A144351.pdf State v. Engerseth, 255 Or App ___ (Mar. 27, 2013).

PER CURIAM OPINION

• UUW “Use” and “Threaten to Use”—under State v. Ziska, 253 Or App 82, 88–89 (2012), “use” in the UUW statute means “both the actual use of physical force and the threat of immediate use of physical force.” Thus, it was no error for a trial court to refuse to give a jury instruction including the line, “Threatening to use a dangerous weapon is not use of that weapon.” State v.Pinckney, 255 Or App ___ (Mar. 27, 2013).