Oregon Appellate Ct - Dec. 18, 2013

by: Abassos • December 18, 2013 • no comments

Note: there are three juvenile cases that have not yet been reviewed: DHS v KMM, a TPR case; DHS v GLH, a DHS appeal of the dismissal of wardship; and DHS v RLF, a dependency jurisdiction case.

90 Day Inmate Speedy Trial - Once There's a Continuance the 90-Day Period No Longer Applies

The 90-Day speedy trial period for inmates is not tolled when there is a valid continuance. It is no longer applicable. The only question is whether the continuances were due to motions either filed on the defendant's behalf or granted for "good cause shown." Here, defendant was serving a prison sentence and validly invoked ORS 135.763 to start the statutory requirement that the DA bring him to trial within 90 days. But when the defense attorney asked for the case to be taken off the trial docket because of competency issues, the 90-day period became inapplicable. This is true even though there was a further delay (past the 90 days) after the court found defendant fit to proceed and set the case over for "good cause". State v Ashcroft, 260 Or App ___ (12/18/2013)

Conditional Discharge - Must Be Granted if No PV Alleged Before End of Probation

Conditional Discharge Must Be Granted if The State Hasn't Alleged a Probation Violation Prior to the End of the Probation Period. This is so because the probation contemplated by ORS 475.245 is the exact same probation as in other contexts. Since a normal probation violation must be initiated during the probationary term, so it is with conditional discharge probations. Here, defendant picked up two new convictions and failed to pay her fines. But because the DA failed to allege a violation before the end of probation, the court was required to grant the conditional discharge. State v Granberry, 260 Or App ___ (12/18/2013)

Jury Instruction May Not Expand Factual Allegations on Which Charges are Based

A jury instruction may not functionally amend the indictment by expanding the criminal acts for which defendant could be found guilty. Here, defendant was charged with sex abuse for sexual contact with the victim's vagina. The court gave a jury instruction that allowed a conviction for sexual contact with any intimate body part. That variance functionally amended the indictment and should not have been given. However, the error in this case was not prejudicial because the state neither argued nor presented any evidence that another body part was touched. Affirmed. State v Guckert, 260 Or App ___ (12/18/2013)

Contempt - Failure to Do Community Service

Defendant should not have been found in contempt of a 2010 sentencing order to perform community service where he only refused to do work crew. The order was clearly for community service that wasn't work crew. (Defendant was given community service as an alternative to probation, not as a condition of it.) Remanded for retrial on the issue of whether defendant refused all forms of community service or just work crew. State v Langford, 260 Or App ___ (12/18/2013)

Criminal Mischief - Wild Animals are the Property of the State

For the purposes of the criminal mischief statute, a wild deer is the "property of another" because it is the property of the state. "Property of another" means that another person or entity has a legal or equitable interest. The state has a legal interest in wild animals because it is an interest that is rooted in English common law, under which wild animals "belonged to the King by his prerogative." The Case of Swans, (1592) 77 Eng Rep 435 (KB) 439. Here defendant was convicted of aiding and abetting his son in shooting at a deer decoy that they thought was a wild deer. The only issue raised by defendant on appeal was whether wild deer are the property of another. The state does not have a proprietary or possessory interest in the wild deer, but it does have a legal interest. State v Dickerson, 260 Or App ___ (12/18/2013)

Probation Violations - The Right to Cross-Examine Urinalysis Technician

Defendant had a due process right to have the urinalysis lab technician made available for cross-examination at her probation violation hearing. The court does a useful review of the law in this area and goes through the four factors from State v Johnson to determine whether defendant has a due process confrontation right in a PV hearing: 1. The evidence was essential to the state's case because the lab report was the only evidence of the only allegation: a dirty UA. 2. There was no other way to meaningfully challenge the evidence than through cross of the lab technician. Thus, "defendant's interest in confrontation under the due process clause was very substantial". 3. While the trial court found that it would be difficult to subpoena the technician because he was in Tacoma, the appellate court points out that the state never made any showing of difficulty, instead alleging its conclusion "that it was not required to make the lab technician testify, despite the fact that the state had been given approximately two weeks for the express purpose of doing just that." The court also notes that the state was the one who chose to send the tests out of state. 4. In terms of the reliability of the lab report, the court finds that while there are some indicia of reliability, (a) it was an unsworn statement; (b) lab results involve "matters that are subject to errors of judgment or interpretation"; and (c) the results were not confirmed by any other source. Thus, defendant had a due process right to confrontation and both admission of the urinalysis report and the probation evaluator's testimony was in error. Reversed and remanded. State v Harris, 260 Or App ___ (12/18/2013)

OMMA - Hashish is Usable Marijuana

Hashish is usable marijuana under the Oregon Medical Marijuana Act (OMMA). Thus, it must be returned upon a determination that it was lawfully possessed under the OMMA. The definition of marijuana adopted by the OMMA includes the preparation of the marijuana plant or its resin. Hashish is marijuana under that definition. See State v Ness, 54 Or App 530 (1981). Per Curiam. State v Ellis, 260 Or App ___ (12/18/2013)

A Stipulated Facts Trial Requires A Written Jury Waiver

A written stipulation of facts, submitted for a stipulated facts trial, does not even arguably constitute a waiver of jury trial. Thus, it was plain error for the trial court to proceed with a stipulated facts trial without a formal jury waiver. Reversed. Per Curiam. State v Smith, 260 Or App ___ (12/18/2013).