Oregon Appellate Court - May 15, 2013

by: Jwestover and Abassos • May 15, 2013 • no comments

Kidnapping by Asportation – Ongoing Assault in Different Rooms

In order to be convicted of kidnapping by asportation (ORS 163.225(1)(a)), the victim must both be moved to a qualitatively different place and the movement must be more than merely incidental to another crime. Here, defendant’s day-long series of assaults took victim between multiple rooms within her house. But those rooms were not qualitatively different (like, e.g., the driveway vs the trunk of a car) because the extent of interference with the victim’s liberty did not change. Additionally, the movement was merely incidental to the ongoing assaults because it was purely in furtherance of the assaults. State v. Opitz, 256 Or App ___ (2013).

Objectively Reasonable Element of Choice of Evils Defense Precludes PTSD Induced Fear of Imminent Harm

The Choice of Evils defense requires demonstration of a perceived or actual threat, and that a person’s perception is objectively reasonable. The ‘reasonable person’ that the statute contemplates is "not a person with the unique history or mental characteristics of any particular defendant.” Here, a defendant convicted of Escape sought to justify her flight on the grounds that she suffered from PTSD due to previous sexual assaults. The court finds that her PTSD-induced fear that officers who had her in custody were going to reproduce those assaults did not warrant a COE jury instruction because a reasonable person in defendant’s position would not have perceived the threat that defendant did. State v. Oneill, 256 Or App ___ (May 15, 2013).

Juvenile Court May Correct Permanency Judgment “Oversights or Omissions” at Any Point

ORS 419B.923(1)(a) allows for a juvenile court, “at any time,” to modify or set aside any order or judgment made by it to correct “errors in the order or judgment arising from oversight or omission.” Here, in its permanency judgment recommending adoption, a juvenile court originally failed to include the statutorily required list of specific services that DHS had offered to a mother. While mother’s appeal was pending, the juvenile court corrected its error by issuing a new judgment. The court finds that this was permissible, and that “any time” does not end upon filing notice of appeal. DHS v. A.J.M., 256 Or App ___ (May 15, 2013).

Failure to Advise Defendant of Statutorily Required Information is Plain Error

ORS 426.100(1) requires a court to advise an individual at a civil commitment hearing “(a) the reason for being brought before the court; (b) The nature of the proceedings; (c) The possible results of the proceedings; (d) The right to subpoena witnesses; and (e) The person’s rights regarding representation by or appointment of counsel.” Here, a trial court civilly committed an individual after failing to advise her of her right to subpoena witnesses. The court finds this to be plain error, and exercises its discretion to reverse. State v. M.L.R., 256 Or App ___ (May 13, 2013).

DUII Lifetime License Ban Upheld When Prior Conviction is Merely a Traffic Infraction

A conviction under former ORS 487.540 (classifying DUII as a Class A traffic infraction) counts as a predicate offense for purposes of ORS 809.235’s call for a permanent revocation of an individual’s driver’s license after that person has been convicted for DUII in violation of ORS 813.010. The court concludes this was the legislature’s intent, and affirms defendant’s lifetime revocation despite the fact that one of his prior offenses—from 1978—was merely an infraction. State v. Danby, 256 Or App ___ (May 15, 2013).

Continuing Juvenile Court Jurisdiction

Parents must be on notice of what they must do in order to prevent the state from asserting or continuing jurisdiction over their child, even if a new finding is still “return to parent.” Here, the juvenile court initially imposed criteria for both mother and father under a “return to parent” plan. Later, the court denied mother’s motion to dismiss jurisdiction and held that the mother (who lives in Oregon) had not made adequate progress, but that father (who now lives in Mexico) had, and continued its “return to parent plan.” The court cited a “personality disorder” as the cause of the mother’s insufficient progress. Noting that the juvenile court’s original assertion of jurisdiction lacked any reference to mother’s personality disorder, the Court of Appeals reverses and remands. DHS v. A.R.S., 256 Or App ___ (May 15, 2013).

No Preservation When Your Theory Changes on Appeal

Courts of Appeals must sua sponte determine if an argument on appeal was preserved at the trial level when opposing council concedes preservation. Here, at trial defendant sought a jury instruction stating that possession of less than one ounce of dried marijuana was not a crime in an effort to attack the mens rea element of his possession of hashish charge—i.e. that he thought he was possessing something that is not a crime. On Appeal, without reference to mens rea, defendant asserts that he should have been granted the special instruction because a reasonable finder of fact could determine that defendant had in fact possessed dried marijuana as (opposed to hashish). The court finds this argument unpreserved, and affirms the trial court’s refusal to give the requested instruction. State v. Cossette, 256 Or App ___ (May 13, 2013).

PER CURIAM OPINION:

• Defendant was convicted of three counts of criminal mistreatment, and in each case the court imposed a 36-month jail sentence as well as 36 months of post-prison supervision. These 72-month sentences violate ORS 161.605(3), which caps the maximum term of an indeterminate sentence for a Class C felony at five years. The court finds this to be plain error, and remands for resentencing. State v. McCallum, 256 Or App ___ (May 15, 2013) (per curiam).