Oregon Appellate Court - April 17, 2013

by: Jwestover and Abassos • April 17, 2013 • no comments

with John Evans and Xaioxi Cheng

Preservation

Oregon Rule of Appellate Procedure 5.45(1) requires that issues appealable issues be preserved during trial. In this case, defendant objected to the state’s proffer of testimony regarding retrograde extrapolation of blood alcohol content on two grounds. First, that it is scientific evidence and therefore an expert should testify regarding the method, and second, that even if an expert testified it would be misleading to the jury. An expert testified and defendant was convicted. On appeal, defendant argues that the testimony was insufficient lay the proper foundation for introduction of scientific evidence. Because this argument is “qualitatively different” from those below, the court finds it was not preserved for review. State v. Montgomery, 256 Or App ___ (Apr. 17, 2013).

Circumstantial Evidence of DUII

When an officer finds a person sleeping by themselves in their car several miles from their home, a 6-pack of beer with two empties in the center console, a receipt indicating the purchase of the 6-pack of beer a few hours earlier at a store miles away, and the person admits they were driving, sufficient circumstantial evidence exists for a jury to find beyond a reasonable doubt that the person had been driving under the influence of an intoxicant. State v. Montgomery, 256 Or App ___ (Apr. 17, 2013).

No Rearguing Motions During Closing

During closing argument following a trial for reckless driving and reckless endangerment, defendant, pro se, stated to the jury, “It would have been convenient for the trial to be held in * * * Jackson County.” The court interrupted, stating, “[T]here’s no issue here as to venue. And there has been nothing raised today with [regard] to the proper place for trial. So leave that, please.” The court finds that the trial court did not in fact abuse its discretion because the defendant was “attempting to reargue the legal issue raised” and denied in a pretrial motion. Additionally, the trial court’s comments did not interfere with the jury’s obligation to determine the facts, because the comments were directed towards defendant, not the jury, and because the judge issued appropriate curative instructions. Affirmed. State v. Hooper, 256 Or App ___ (Apr. 17, 2013).

Taken into Custody for Parole Violation = “Arrest” for Resisting Arrest Statute

Taking a person into custody for a parole violation is an “arrest” for purposes of the resisting arrest statute. Here, defendant argued that the statute only applies to a person who resists being taken into custody for an “offense,” and a parole violation is not an “offense.” The Court relies on legislative history to depart from the plain reading of the statute, and applies a broader understanding to the word “arrest” in this context. Judge Sercombe files a lengthy dissent. State v. McClure, ___ Or App ____ (Apr. 17, 2013).

Pretrial Services = “Correctional Facility” in Failure to Appear I Statute

Pretrial services office is a “correctional facility,” if it is a place used for the confinement of persons pursuant to a court order. After failing to appear in court pursuant to his release agreement, defendant argued that he was never released from “custody” or from a “correctional facility,” as required by Failure to Appear I statute. The Court holds that he had in fact been released from a correctional facility because pretrial services had not exercised its authority to confine him. State v. Mather, ___ Or App ____ (Apr. 17, 2013).

Only Subject Matter Jurisdiction Is Required for Child Custody Proceedings

Personal jurisdiction over a child is not required for the court to rule on the custody of a child—only subject matter jurisdiction is needed. Here, the Court finds that juvenile court had subject matter jurisdiction because Oregon was the child’s “home state”—she had been born in Oregon. A temporary absence did not change that, so the fact that the family had left the state the day after the child’s birth is of no import. DHS v. M.H., ___ Or App ____ (Apr. 17, 2013).

Failure to Seek Aid and Father’s History of Sexual Abuse Present Danger to Child, But Homelessness Does Not

Court upholds finding that that parents cannot provide safe and adequate care of child. Here, father had a past history of sexually abusing young children, but had not reoffended since the 1980s. DHS had previously taken three of mother’s children away because of physical abuse, and she had also been diagnosed with dependency issues. Parents were unemployed and living in a tent. Court finds:

• Parent’s failure to fully engage in all recommended services supports a finding that they were able to provide safe and adequate care of child.
• Father’s history of child sexual abuse combined with expert testimony that Father presents a current risk of reoffending was sufficient to support a finding that his condition put child at risk of serious harm.
• Homelessness and unemployment alone are not sufficient to find that child is put at risk of harm. Court remands so that these findings can be removed from judgment.

DHS v. M.H., ___ Or App ____ (Apr. 17, 2013).

No Mistrial in Sex-Abuse Case--Curative Instructions Sufficient

Statements made by the prosecutor and the testimony of three witnesses, which had the possibility of allowing the jury to infer defendant had a history of sex offenses with minors, did not amount to prejudice that would lead to a mistrial. Here, the trial court rule that prosecutor’s comments stating defendant admitted to having a “sex problem and that he needs help”; that the defendant “knows he shouldn’t have been talking to minors”; and that witness statements stating defendant “acknowledged he had a problem” should be struck. It denied defendant's several motions for mistrial on the grounds that that prejudice could be prevented through curative jury instructions, which it administered. The court of appeals finds that the trial court did not abuse its discretion in denying the defendant's motions. State v. Middleton, 256 Or App ___ (Apr. 17, 2013).

Guardianship Hearing Must be “Fundamentally Fair” to Satisfy Due Process

A hearing required by ORS 419B.366 (procedures and requirements for establishing a durable guardianship) is in accordance with due process if the proceeding as a whole is “fundamentally fair,” where an individual is given the opportunity to be heard at a meaningful time and in a meaningful manner. Here, mother was given a hearing at which she was afforded the opportunity to cross-examine DHS's witness, and after which she was allowed to submit evidence on the issue that she indicated to the court her intent to contest. Thus, court of appeals rejects mother’s contention that her hearing was insufficient as a matter of law. DHS v. K.H., 256 Or App ___ (Apr. 17, 2013).

Admissible Eyewitness Evidence

Under the Lawson/James test that governs the admission of eyewitness identification evidence, evidence is admissible if (1) the state provides proof that the proffered eyewitness has personal knowledge (OEC 602); and (2) that any identification is both rationally based on the witness’s first hand perception, and is helpful to the trier of fact (OEC 701). Here, the victims’ consistent descriptions of the driver, the Oregon State Police procedures utilized to mitigate suggestiveness, and defendant’s inculpating statements all supported the reliability of the eyewitness identification. The court of appeals therefore finds that the trial court did not err in determining the eyewitness identification evidence was admissible. State v. Collins, 256 Or App ___ (Apr. 17, 2013).

PER CURIAM OPINIONS

• Repealed Statute—ORS 137.290, which allowed for the imposition of a $500 unitary assessment on harassment and fourth-degree assault convictions, was repealed effective January 1, 2012. Accordingly, those assessments may not be assessed. [www.publications.ojd.state.or.us/docs/A152682.pdf State v. Akim], 256 Or App ___ (Apr. 17, 2013) (per curiam).