Oregon Appellate Court October 24, 2012

by: Erick Tobias and Abassos • October 25, 2012 • no comments

Speedy Trial Statute does not Apply to Retrials

Under ORS 135.747, a defendant is "brought to trial" when "the trial is commenced." Where there is a mistrial and the defendant is retried, the first trial is the relevant one for tolling the speedy trial statute. State v. Garner, __ Or App __ (2012).

Scope of State-of-Mind Exception to Hearsay Rule

An elderly victim's past-tense out-of-court statements in a theft case-that she did not want to transfer her home to defendants- do not concern her present state of mind, but rather her mental condition and intention at a time preceding the statements. Thus, the statements do not fall under the state-of-mind exception to the hearsay rule. State v. Richardson, __ Or App __ (2012).

The Meaning of "Use" Under ORS 166.220, Unlawful Use of a Weapon

Under ORS 166.220(1)(a), unlawful use of a weapon, "use" describes both the actual use of physical force and the threat of immediate use of physical force. Here, defendant committed UUW by threatening the victim with a crowbar. While defendant did not intend to actually use physical force, he did intend to threatenthe immediate use of physical force. State v. Ziska, __ Or App __ (2012).

OEC 803(18a)(b) Hearsay Exception For Abuse Victims > Insufficient Notice

Notice under OEC 803(18a)(b) requires "at a minimum that the state identify in its notice the substance of the statement sought to be introduced and also identify the witness or the means by which the statement would be introduced." State v. Chase, 10 Or App 541, 546-47 (2011). Here, the state's notice that it intended to introduce victim's statements along with reports including the substance of the statements insufficiently identified which statements from the report would be introduced. State v. Wood, __ Or App __ (2012).

Forcible Compulsion May Be Proved by Alternative Evidence

Forcible compulsion is a single element of first-degree sodomy that the state may establish by alternative evidence of either physical force or threat. The jury need not agree on the means of forcible compulsion because the alternatives would not constitute separate crimes. State v. Sullivan, __ Or App __ (2012).

Merger > Assault Convictions Merge Absent "Sufficient Pause"

Multiple assault convictions arising out of the same, single-victim incident must be merged unless there is a "sufficient pause" between the assaults affording defendant the opportunity to renounce his criminal intent. The mere passage of time does not establish this "sufficient pause"; the evidence must show that one assaultended before another began. State v. Glazier, __ Or App __ (2012).

Civil Commitment > History of Not Taking Heart Medication May Be Sufficient

In cases involving a defendant who refuses to take medication for a physical condition, the state must provide evidence on the nature and severity of the condition if refusal continues to support a finding that defendant is a threat to himself. Here, evidence that defendant had previously refused medication that may result in a heart attack if not taken was sufficient. State v. J.S., __ Or App __ (2012).

Lack of a Privacy Interest is not a Basis for Proving Attenuation

That an unlawfully stopped passenger does not have a possessory or privacy interest in a car is not a basis to show that a search of the car after the driver consented was attenuated from the unlawful stop. Here, the defendant-passenger met the "factual nexus" burden by showing that consent to search was obtained during an illegal stop where police sought consent instead of proceeding with processing the traffic infraction. The state argued that the search was valid as it pertained to defendant because it did not interfere with his possessory or privacy interest. However, the state presented no evidence that consent made the search lawful and discovery of the meth inevitable. Therefore, the state did not meet its burden of showing attenuation. State v. Knapp, __ Or App __ (2012).

Prison + PPS Can't Exceed Statutory Max

You can't get 60 months prison and 24 months PPS on a C felony. Even if the judge says that the PPS shall be reduced by whatever amount is necessary to make the total actual time less than 60 months statutory maximum. In that case it's an indeterminate sentence, which is also not allowed. State v. Powell, __ Or App __ (2012).

Defense Attorney Scheduling Does Not Waive a Defendant's Speedy Trial Request

A defendant who requests a speedy trial pursuant to ORS 135.760 may later waive that right if the waiver is intentional and unequivocal. Here, defendant did not personally and intentionally waive his right to a speedy trial when trial dates outside of the 90-day period were set via email between defense counsel and the DA. State v. Benner, __ Or App __ (2012).

Officer's Failure to See Evidence Does Not Make Suspicion Reasonable

The court holds that an officer did not have reasonable suspicion to stop defendant for criminal trespass when he saw her on an elevated walkway between two shopping centers. Although each of the shopping centers had no trespassing signs posted, the sign on the walkway stated "no trespassing between 11 pm and 7 am", and the officer saw defendant on the walkway around 10pm. The fact that the officer claimed that he did not see the sign was irrelevant because the walkway is physically distinct from the shopping centers where access was restricted. State v. Musser, __ Or App __ (2012).

Bases For Appointment of a Guardian Ad Litem

Father's tendency to ramble and veer off-point provided sufficient evidence for the trial court to appoint a guardian ad litem for father during his parental-rights termination proceedings because he was unable to direct and assist his counsel. Further, due process does not require proof that the guardian consulted with father before entering into a stipulated judgment terminating father's parental rights. DHS v. K.L.W., __ Or App __ (2012).

Opening Vehicle Hatch Manifests Consent to Search

Opening the back hatch of a vehicle, in response to an officer's request to search the back of the vehicle, constitutes consent to the search; it is not "mere acquiescence" to the officer's actions. State v. Pickle, __ Or App __ (2012).

Per Curiams:

• The automobile exception does not apply to a search of defendant's person if defendant is standing outside the vehicle when the search occurs. State v. Jones, __ Or App __ (2012).

• The trial court erred in failing to merge convictions for delivery of methamphetamine and delivery of methamphetamine within 1,000 feet of a school. The trial court also erred in failing to merge convictions for first-degree child neglect and endangering the welfare of a minor. State v. Kinsley, __ Or App __ (2012).