Oregon Appellate Court - May 22, 2013

by: Jwestover and Abassos • May 24, 2013 • no comments

Unlawful Seizure of Passenger Requires Independent Showing of Authority

A passenger during a traffic stop is not herself stopped merely because the stop of the driver is unlawfully extended. Prior post-Ashbaugh cases had already ruled that a passenger in a stopped car is not herself automatically stopped. The court reaffirms the rule that the question of a passenger stop is determined by whether a show of authority is directed at the passenger. State v. Ross, 256 Or App ___ (May 22, 2013).

Escape from Constructive Restraint

A defendant is in custody once constructive restraint is imposed, and can thus escape from it. Here, the court finds that a man was constructively restrained after police officers manifested their purpose to apprehend by threatening to taze him and ordering him to allow them to handcuff him. Affirming the man’s conviction, the court finds that the man’s subsequent threat that he would “come after” the police if tazed and his flight from the officers were sufficient grounds to satisfy the elements of Escape II. State v. Ashbaugh, 256 Or App ___ (May 22, 2013).

Preservation Requirement Does Not Apply Where Defendant Has No Opportunity to Object

A defendant need not preserve objections to a judgment denying post-conviction relief if that judgment does not meet the requirements of ORS 138.640(1), because a defendant could not know the judgment was deficient before it was entered. Accordingly, plain error review is not warranted in these cases. Here, the court finds the judgment deficient under ORS 138.640(1) and reverses and remands without making a plain error analysis. Walker v. State, 256 Or App ___ (May 22, 2013).

No “Witness-False-in-Fact” Jury Instructions Where Witness Admits to Prior False Statements

A “witness-false-in-part” jury instruction may not be granted if the witness, during her testimony, identifies all false statements made in a previous out of court statement, because there is nothing that would tend to show the jury that witness’s testimony was false. Here, a witness testified that she previously lied to police, and clarified all false statements. The court finds that the trial court abused its discretion when it provided a witness-false-in-part jury instruction. The court also finds that the trial court’s error was not harmless, because the instruction bears on the credibility of the witness’s testimony under oath, which is qualitatively different from lying to police at the scene. State v. Milnes, 256 Or App ___ (May 22, 2013).

PER CURIAM OPINIONS:

• A judge may not impose forfeiture as a condition of probation. State v. Youngs, 256 Or App ___ (May 22, 2013).

• To support involuntary commitment the state must prove by clear and convincing evidence that because of a mental disorder the appellant is unable to provide for her basic personal needs. State v. J.V.S., 256 Or App ___ (May 22, 2013).