Oregon Appellate Court - August 14, 2013

by: Sonja Good Stefani, Alex Flood, Alarson, Zara Lukens and Abassos • August 15, 2013 • no comments

Plain Error to Admit Prior Bad Acts Evidence without Actus Reus Instruction

It was plain error for the trial court to admit prior bad acts evidence without the requisite qualifying jury instruction. Because the defendant did not concede that he had engaged in the actus reus, the trial court should have instructed the jury not to consider uncharged misconduct evidence offered to prove intent unless and until the jury found the act to have been done and was proceeding to determine intent. State v. Jones, 258 Or App ___ (2013).

Frequenting - Cohabitant Not Automatically in Possession of Drugs

The trial court erred in denying defendant’s MJOA on the frequenting charge because the state presented neither direct nor circumstantial that defendant’s cohabitant had knowledge of the Vicodin. The state argued that defendant was liable under the frequenting statute because he "remain[ed]" in their shared residence while knowingly "permitting" his cohabitant to "keep" the Vicodin pills in the home. State v. Stradley, 258 Or App ___ (2013).

Discovery of Arrest Warrant Still Attenuates the Taint of Prior Unlawful Conduct

Hall did not implicitly overrule the principle expressed in Dempster and Snyder that, where evidence is discovered incident to an arrest under a valid warrant, the evidence is purged of the taint of any prior unlawful police conduct. The discovery of a valid warrant is an "intervening and independent" event that severs the causal connection between the unlawful police conduct and the discovery of the disputed evidence for purposes of Article I, section 9, as analyzed under the Hall framework. State v. Bailey, 258 Or App ___ (2013).

Hearsay - Medical Diagnosis or Treatment - Child’s Statements to CARES

A child’s statements to CARES (an abuse investigation outfit) qualifies under the 803(4) hearsay exception for statements made for medical diagnosis or treatment. The court specifically rejects the argument that the investigative purpose of the CARES evaluation undermines its medical purpose and presumption of reliability. It is important to note that this was a dependency hearing to determine whether the children should be found to be within the jurisdiction of the juvenile court. In a criminal case, the statements would trigger an analysis under the confrontation clause. DHS v JG, 258 Or App ___ (2013)

Termination of Parental Rights - ICWA - Mental Condition

After an extensive review of the facts, the court finds, beyond a reasonable doubt, that because of her mental condition, mother is and will continue to be unable to safely parent. Her mental condition is manifested by “mother's recurrent lack of effort over a period of at least several years to commit to an adjustment of her life circumstances through participation in services, and her continued inability to engage in healthy relationships or disassociate herself from father and the other unsafe men in her life.” DHS v JLH, 258 Or App ___ (2013).

Dependency - DHS Must Show That Parent Has Not Made “Sufficient Progress” to Change Case Plan from Reunification to Guardianship

To change a permanency plan from reunification to guardianship the court must find that the parent has made sufficient progress to make it possible for the ward to safely return home. Here, father’s two in-person visits and limited telephone contact contributed to father’s lack of understanding his child’s needs and psychological disorders. Viewed in the light most favorable to the trial court these facts support’s the conclusion that the father failed to make sufficient progress to allow for his child’s safe return. DHS v. DWC, 258 OR App ____ (2013). Dependency - A Permanency Order Must Include a “No Compelling Reason” Finding

A permanency order must include a finding that there is no compelling reason not to file a petition to terminate parental rights. ORS 419B.476 and ORS 419B.498. Such a defective judgment is not harmless because:

“Adoption and termination proceedings cannot occur until there is a necessary predicate permanency judgment. Had the juvenile court rendered such a judgment, complete with findings relevant to the timing of adoption and termination proceedings, those proceedings might have been deferred, giving parents more of an opportunity to demonstrate their progress. That demonstration, in turn, could have had an effect on the outcome of the adoption and termination proceedings.” [ttp://www.publications.ojd.state.or.us/docs/A152448.pdf DHS v MH and BR], 258 Or App ___ (2013).

Dependency - Change of Permanency Plan - Reasonable Time

Where father has been incarcerated for the previous 18 months, partially due to disciplinary sanctions and would need at least an additional 9 months to be ready to take care of his child, there was sufficient evidence that father wouldn’t be ready within a reasonable time. Note that the court specifically does not address the state’s argument that “there is no statutory requirement of a finding that a parent cannot be reunited with the child within a reasonable time before the court changes the plan from reunification to adoption” (because here, there was sufficient evidence to support such a finding regardless of whether such a requirement exists). DHS v DAN, 258 Or App ___ (2013).

Dependency Jurisdiction - Marijuana Use

A court errs in concluding that marijuana use endangers the welfare of a child when there is no nexus between the marijuana use and a current threat of harm. "The fact that a parent engages in behavior that could negatively affect his or her parenting does not necessarily mean that the behavior can serve as a basis for juvenile court jurisdiction over a child." DHS v CJT, 258 Or App ___ (2013).

Dependency Jurisdiction - History of Domestic Violence

A history of domestic violence can create a “current threat of loss or injury to the children” despite a lack of recent violence where:

• mother expressed fear of father;
• mother obtained a protective order against father based on the allegations of domestic violence and sought help from the Women's Crisis Center;
• mother told a DHS investigator that she was not able to leave the house on a frequent basis, and was not able to go to the library, her parenting classes, or WIC appointments; and
• mother's behavior demonstrated a pattern that is common in domestic violence.

DHS v CF, 258 Or App ___ (2013).

A Parole Denial Should Not Rely On An Inaccurate Psych Eval

The parole board’s determination that defendant continued to be dangerous, and therefore should be denied parole, was erroneous where the board relied on a psych eval which contained an inaccurate criminal history. The psychologist came to the conclusion that defendant was minimizing his crimes. But it’s impossible to tell what part of that is an attempt to convey the accurate criminal history and what part is a minimization of actual crimes committed. Reversed and remanded. Dam v Board of Parol, 258 Or App ___ (2013).

No Reasonable Suspicion – Leaving the Area of a Closed Business

There is no reasonable suspicion to justify a stop where an officer merely observes a person in the area of a business that is closed to the public. State v. Huffman, 258 Or App ___ (2013).

Reasonable Suspicion Under Totality of Circumstances

An officer conducting a traffic stop has reasonable suspicion to investigate the crimes of furnishing alcohol to a minor and the violation of minor in possession of alcohol where: (1) the vehicle is in a remote location known to be frequented by people using drugs and alcohol (2) the officer smells alcohol emanating from the vehicle's interior (3) a passenger appears to be under the influence of a stimulant; (4) the driver is 18 years old; and (5) the other passengers all appear to be between the ages of 18 and 25. State v. Faubion, 258 Or App ___ (2013).

Civil Commitment - Basic Needs - Court Must Look to Available Resources

A “basic needs” civil commitment requires evidence that a person both cannot care for herself and that she lacks resources to assist in her care. Here, appellant’s schizophrenia and resulting inability to care for herself were insufficient because the trial court did not account for the resources available to the appellant (social services, Social Security payments, food stamps and representative payee) that could assist the appellant in meeting her basic needs. State v. A.D.S., 258 OR App ___ (2013).

“Prior Bad Acts” Are Inadmissible to Prove Intent Unless Intent Is At Issue

Where the central issue is whether the charged conduct occurred, and intent can be reasonably inferred from the conduct itself, uncharged “bad acts”, under OEC 404(3), are irrelevant to intent. Here, a conclusion that defendant committed the charged act of touching the victim’s vagina and taking her hand and placing it on his penis would strongly indicate the required mental state of touching for sexual purpose. Therefore admission of evidence regarding the defendant’s possession of little girls’ underwear was inadmissible character evidence. State v. Williams, 258 OR App ___ (2013).

Vouching - Plain Error When Credibility the Primary Issue

The trial court has a duty, sua sponte, to prevent testimony that is a comment on a witness’s credibility. Here, a mother testified that after her daughter (the complainant) said that the defendant had raped her, the mother waited a couple hours to ask the daughter to repeat the story, which signified to the mother that the daughter wasn’t lying. This was a direct comment from the mother that her daughter was truthful and that the mother believed her daughter’s accusations against the defendant. The credibility of the complainant was the heart of the state’s case, thus the comment is plain error. Reversed. State v. Higgins, 258 Or App __ (2013).