Oregon Appellate Court - April 3, 2013

by: Jwestover and Abassos • April 3, 2013 • no comments

Suppressing Statements but Not Evidence When Independent Grounds for a Search Existed

Unlawfully stopping a passenger in a car does not necessarily preclude a valid automobile exception search. Here, a driver gave consent to search his car, and when defendant (passenger) was asked to step out of the car an officer patted him down for weapons. The officer felt a small canister in defendant’s jacket pocket, but did not pursue the matter. The officer told his partner about the canister, and the partner conducted a pat down and discovered that the canister contained marijuana. The court finds that this second pat down constituted an unlawful seizure, and all resulting statements should be suppressed. The suppressed statements were in regards to the contents of a backpack that, when searched, produced several pounds of marijuana. However, the court also finds that due to the driver’s erratic driving, the passenger’s lethargic demeanor, and an odor of marijuana, the officers had probable cause to search the car at the outset under the automobile exception. State v. Tovar, 256 Or App ___ (Apr. 3, 2013).

A Deal’s a Deal, PSRB

Agency decisions must be supported by substantial evidence. Here, petitioner sought conditional release from PSRB custody in order to serve a 32 months prison term. PSRB agreed that upon completion of his prison sentence PSRB could not reconsider petitioner’s conditional release if it disapproved of Board of Post-Prison Supervision’s imposed conditions. Nevertheless, PSRB denied petitioners conditional release. The court finds the PSRB board chair’s statement of, “[W]e would ask that you return to the [PSRB] for approval of the Post-Prison Supervision plan for a period of two years,” during the initial negotiations, when read in context, did not authorize PSRB to reconsider or disapprove the BOPPS’s conditions. PSRB’s denial of conditional release was thus not supported by substantial evidence. Laing v. PSRB, 256 Or App ___ (Apr. 3, 2013).

Plain Error—Testimony of Sex Abuse Diagnosis Without Physical Evidence

It is plain error to admit a medical doctor’s diagnosis of sexual abuse when no physical evidence of abuse was found. Here, a 10-year-old girl told a doctor that defendant touched her inappropriately, but the doctor found no physical evidence supporting the allegation. Nonetheless, at a bench trial the doctor testified to a diagnosis of “abusive contact of an adult with a patient, no penetration or genital contact.” The Court of Appeals concludes “in the absence of a statement by the trial court that it did not consider [the doctor’s] diagnosis,” the error was not harmless. Reversed. State v. Lopez-Cruz, 256 Or App ____ (Apr. 3, 2013).

Merger—Sufficient Pause Between Attempts to Evade Means No Merger

Multiple convictions for Attempt to Elude do not merge if there was a “sufficient pause” for defendant to renounce his criminal intent between each occurrence. Here, officers attempted to stop defendant four times over the course of an hour and a half. On the first three attempts, the defendant successfully evaded officers before being discovered again. The Convictions do not merge because the intervening breaks between each instance of evasion constituted a sufficient pause. Appellate counsel’s argument that the “sufficient pause” issue should have gone to the jury under Blakely and Apprendi was not preserved. See Ryan Scott’s blog post on this issue. State v. Reed, 256 Or App ____ (Apr. 3, 2013).

Wards of State May Be Immunized over Noncustodial Parents’ Objections

ORS 419B.352 (Juvenile code: Medical or psychiatric examination or treatment) grants broad authority to a court to make health care decisions regarding children that have been placed in its custody. Here, parents lost custody of eight children, who became wards of the court and were placed in the legal custody of DHS. Thereafter, parents contested court’s approval of DHS’s request to order immunization of the children. The court of appeals finds the juvenile court did not abuse its discretion in ordering immunizations. Additionally, the court’s order did not unlawfully infringe on parents’ constitutional rights to direct the upbringing of their child. DHS v. S.M., 256 Or App ____ (Apr. 3, 2013).

Jurisdiction over Juveniles—Sufficiency of Evidence

Juvenile court jurisdiction under ORS 419B.100(1)(c) is appropriate when there is sufficient evidence showing a current risk of harm to the child. Here, mother’s mental instability and inconsistent attendance at child’s therapy sessions were sufficient to support the court’s finding that “mother was unable or unwilling to meet and understand” her child’s medical and developmental needs. DHS v. L.F., 256 Or App ____ (Apr. 3, 2013).

PER CURIAM OPINIONS

• Assault II and UUW Merge—Trial court plainly erred when entering two separate convictions for second-degree assault and unlawful use of a weapon. Since both counts were based on a single incident when defendant shot his brother’s leg, the separate convictions should have been merged into a single conviction for second-degree assault. State v. Wytcherley, 256 Or App ____ (Apr. 3, 2013) (per curiam).

• Possession of a Stolen Vehicle and UUV Merge—Trial court plainly erred when failing to merge the guilty verdict for possession of a stolen vehicle with the verdict for unauthorized use of a vehicle. Because all of the elements of possession of a stolen vehicle are subsumed into the elements of unauthorized use of a motor vehicle, the convictions should be merged. State v. Jones, 256 Or App ____ (Apr. 3, 2013) (per curiam).

• Felon in Possession of Firearm Merges—Trial court erred in failing to merge defendant’s guilty verdicts for being a felon in possession of a firearm stemming from a single burglary. Because there is no evidence of a sufficient pause in defendant’s criminal conduct, the guilty verdict on 5 counts should have been merged. State v. Chappell, 256 Or App ____ (Apr. 3, 2013) (per curiam).