Oregon Appellate Court - April 24, 2013

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

Discretion to Remand on Plain Error During Sentencing Depends on How Clear Trial Court Was

A court will exercise its discretion to remand on plain error if the sentence imposed below is not the only one possible. Here, defendant was sentenced to 210 months for Attempted Aggravated Murder and Robbery I. He was also sentenced to six separate 60-month mandatory minimum firearm sentences, which, due to running concurrently, were subsumed by the 210 month sentence. The state concedes that this was plain error, but opposes remand, asserting that the sentence on remand would not change. Disagreeing, the court remands because in light of the trial judge’s language during sentencing, “although it is possible that the trial court could, on remand, [correct the error] and still impose 210 months of incarceration, that is not the only possible outcome.” State v. Saechao, 256 Or App ___ (Apr. 24, 2013).

2007 Corroboration Statute—“Threshold for corroboration is low”

The 2007 version of ORS 136.425, which was effective until January 1, 2010, required that a confession be corroborated by other evidence in order to warrant a conviction. Corroborating evidence need only tend to establish guilt. Here, defendant was convicted of several counts of Sex Abuse I for molesting his five-year-old step daughter, S. Defendant confessed to having S “grind” her vaginal and anal area on his groin, but reasserts his MJOA argument that the state’s other evidence was insufficient to corroborate the sex-abuse charges. The court finds that S’s statement that “only daddy” caused her “owies where the pee comes out” was sufficient to lead a rational trier of fact to “draw an inference that tends to show that the charged crimes occurred.” Affirmed. State v. Hernandez, 256 Or App ___ (Apr. 24, 2013).

Getting Out of the Way of Police Engaging a Suspect=Mere Acquiescence

Mere acquiescence to a police officer’s request occurs “when an individual is not given a reasonable opportunity to choose to consent.” Here, police investigating a theft visited a home based on an informant’s tip. An individual, Fuller, opened the door and the officer observed one of his suspects in the background. Without saying another word to Fuller, the officer “drew his gun,” and commanded the suspect to “get his hands up.” In response, Fuller slid out of the way. The court finds Fuller to have merely acquiesced. Consequently, police entry into the abode violated Article I, section 9 of the Oregon Constitution. Reversed and remanded. State v. Bertha, 256 Or App ___ (Apr. 24, 2013).

Dissipation of Probable Cause, and Unlawful Extension

When probable cause dissipates, extending a stop is unlawful. Here, a police officer (Gault) was unable to see the tabs on a vehicle he was following. DMV records indicated that the tabs expired two months previously, and the officer pulled the vehicle over. On his approach the officer observed up-to-date tabs, but felt the need to verify with the driver anyway. During this verification, the officer developed probable cause to believe that the driver was DUII. The court finds that the officer’s observation of the valid tabs dissipated any probable cause he had to believe that the driver had committed a violation, and that anything beyond the mere formalities of informing the driver he was free to go was an unlawful extension. Reversed and remanded. State v. Petterson, 256 Or App ___ (Apr. 24, 2013).

Intelligent Waiver of Counsel

A defendant’s waiver of counsel in a criminal proceeding must be voluntarily and intelligently made. Here, defendant was convicted of pointing a firearm at another, and menacing. In going pro se, she submitted a written “Waiver of Counsel” to the court, which read “I am aware of the help a lawyer might be to me.” She also acknowledged the trial judge’s statement, “You may be at a disadvantage without a lawyer,” with “I may be,” to which the court replied, “That’s unfortunate.” No specific risks of continuing without a lawyer were laid out. The court finds defendant’s waiver to lack understanding, and thus it was not intelligently made. Because it is not clear how the result would have differed with the assistance of counsel, the court cannot find harmless error, and reverses and remands. State v. Erb, 256 Or App ___ (Arp. 24, 2013).

Negligence Standard Helpful to Jury When Determining Recklessness

Defendant appeals a conviction of several driving-related offenses where the culpable mental state for guilt was recklessness. Defendant objected to the trial court’s instruction as to the general duties of a driver on the grounds that it could mislead a jury to believe that it could convict defendant solely on a theory of negligence. The court first notes that the “the trial court correctly instructed the jury on the meaning of recklessness.” Additionally, because a finding of recklessness required, in part, a finding that defendant’s disregard of a risk was “a gross deviation from the standard of care that a reasonable driver would observe in the situation[,] [t]he instruction assisted the jury in its task by explaining how a reasonable person would drive.” Affirmed. State v. Clark, 256 Or App ___ (Apr. 24, 2013).

“Follow All Recommendations” Refers to DHS Recommendations, Not Doctor Recommendations

Parents must be on notice of what they must do in order to prevent the state from asserting or continuing jurisdiction over their child, and “only the petition or the jurisdictional judgment can provide a parent with adequate notice. Here, the juvenile court relied on the mother’s failure to seek out mental health counseling for depression in ruling against her. DHS had requested several services, including a “psychological evaluation,” and the direction to, “follow all recommendations.” Mother had undergone a psychological evaluation, been diagnosed with depression, and been recommended by the doctor to seek appropriate treatment. However, the court finds that because “[a]t no time before the hearing did DHS recommend to the juvenile court that mother be ordered to begin mental health counseling for depression,” the trial court’s reliance on it was error. Reversed. DHS v. J.R.L., 256 OR App ___ (Apr. 24, 2013).

PER CURIAMS

• Unlawful Use of a Weapon and Second Degree Assault merge. State v. Arbgast, 256 OR App ___ (Apr. 24, 2013).
• Trial court erred in entering convictions for both fourth-degree assault and felony fourth-degree assault and noting that they merge for sentencing purposes only. Reversed and remanded to enter judgment single conviction for felony fourth-degree assault. State v. van Newton, 256 OR App ___ (Apr. 24, 2013).
• Error to enter a finding of contempt as a misdemeanor conviction. State v. Gostevskyh, 256 OR App ___ (Apr. 24, 2013).