OR Appellate Ct - Dec. 26, 2013
by: Abassos • December 26, 2013 • no comments
Former Fugitive Doctrine - Ten Year Absence
An appellate court has the inherent authority to dismiss an appeal where a defendant fled the jurisdiction, thereby interfering with the appellate process such that the government would be prejudiced in locating witnesses and presenting evidence at a retrial after successful appeal. Here, defendant was found guilty of Sex Abuse I and, prior to sentencing, fled to California where he lived under an assumed name. After 6 years in California defendant was arrested on new charges and given a lengthy prison sentence. Oregon was only able to get defendant back temporarily for sentencing in 2010. The state would be prejudiced because (1) it would be difficult to locate the 21 witnesses the state called at the first trial; (2) the jury might react differently to victims and witnesses in their mid-twenties than they would to ones in their mid-teens (3) it would be inequitable to cause the state great expense to bring defendant back from California where defendant caused his absence; and (4) if allowed an appeal, defendant would benefit from more favorable case law than existed ten years prior, a benefit that should not be received in exchange for flouting the system.
Also, the Interstate Act on Detainers does not apply to situations where the defendant has already been convicted. It only provides for transfer of prisoner between states "for trial". Thus, the IAD did not compel California to return defendant to Oregon. State v Sills, 260 Or App ___ (2013)
Murder by Abuse - A Person Can Be Dependent Based on Transitory Injuries
A victim can be a "dependent person" under ORS 163.205(2)(b) (Murder by Abuse), based on transitory injuries. In other words, a physical disability is any physical issue that leave a person dependent, not the sort of sustained or permanent disability that might be referred to as a handicap in modern parlance. Here, defendant assaulted his girlfriend, leaving her incapacitated and in his care. If he had sought medical care right away she likely would have lived. He did not and she died from the assaultive injuries. Since the victim was dependent on the defendant for at least 2 days before she died, a jury could reasonably find that she was a "dependent person" for the purposes of Murder by Abuse. State v Fitzhugh, 260 Or App ___ (2013).
Unlawful Possession of a Firearm - A Campsite Can Be a Place of Residence
ORS 166.250(1)(a), unlawful possession of a firearm, criminalizes carrying a concealed firearm. There is an exception for doing so within one's place of residence. The term "place of residence" in ORS 166.250(2)(b) can include temporary residences, like a campsite. And, it can include outdoor areas, like the curtilage of a house or the campfire in front of a tent, if those "areas form part of the place in which a person "actually lives." Here, defendant had rented a campsite for a week. He was in possession of a concealed pistol while standing in front of his tent. Because the campfire area outside of one's tent is where one eats, drinks and regularly conducts activities of daily living, it is part of the residence. Accordingly, defendant was entitled to have the jury instructed as to the place of residence exception to unlawful possession of a firearm. State v Wolf, 260 Or App ___ (2013).
FSTs Are Presumptively Justified By the Exigency of an Evanescent Substance
Field sobriety tests, both to detect alcohol and drugs, are presumptively justified by the exigent circumstances exception to the warrant requirement: "In Machuca, the Supreme Court observed that, as a general matter, "the undisputed evanescent nature of alcohol in the blood" provides "a sufficient basis to conclude that a warrant could not have been obtained without sacrificing that evidence.". . . We see no reason why that rule would not also apply to cases, like this one, involving FSTs, which are designed to enable officers to detect current impairment." State v Mazzola, 260 Or App ___ (2013).
Sex Abuse I - Knowingly Applies to "Forcible Compulsion"
In Sexual Abuse in the First Degree, the mental state of knowingly applies to the element of forcible compulsion. Forcible compulsion is an element that "concerns the substance or quality of the crime--the harm or evil sought to be prevented"; therefore it requires a mental state. ORS 161.095(2). Since forcible compulsion is conduct (rather than a circumstance or result), the mental state cannot be recklessness or negligence. Thus, it was error not to give defendant's accurate instruction requiring the state to prove that "defendant knew that his actions amounted to forcible compulsion". The element of lack of consent in Sexual Abuse in the Third Degree only requires a mental state of negligence. It is an element that relates directly to the evil sought to be prevented; therefore it requires a mental state. However, it is not conduct, but rather a circumstance; therefore knowledge, recklessness or negligence may be used. Defendant's instruction as to that count, requiring knowledge, was inaccurate and appropriately declined. Also, the state was not bound by its indictment to the mental state of knowingly because it was ambiguous as to the consent element (defendant "did unlawfully and knowingly subject [the second victim] to sexual contact, . . .said [victim] not consenting thereto".) State v Wier, 260 Or App ___ (2013).
Right to Counsel Pre-Breath Test - Unequivocal Refusal of a Reasonable Opportunity
Defendant was given a reasonable opportunity to consult with an attorney prior to a breath test where he is given a private room with a telephone and unequivocally indicates a refusal to take advantage of the opportunity. Here, defendant came out of the room after 5 seconds and instigated a physical altercation with the jail guards. He was then asked whether he would take a breath test. Defendant responded: "not until an attorney is right here with me". Thus, he was given an opportunity to consult counsel and unequivocally indicated that he would not take the opportunity. State v Groner, 260 Or App ___ (2013).
Merger - There Is No "Merger For Sentencing"
There is no merger for sentencing. There is only merger of convictions. Here, the trial court, on remand with orders to merge, "merged for sentencing". Convictions vacated and remanded for merger of counts 4-12 and 18-20 into single convictions. Also, a remand for resentencing requires a resentencing. Here, the judge simply amended the judgment and refused to allow a resentencing. State v Link, 260 Or App ___ (2013).
ORS 419B.040(1)'s Child Abuse Exception to the Privilege Rules Does Not Apply to Statements Diminishing Complainant's Credibility
ORS 419B.040(1) creates a limited exception to psychotherapist privilege where the statements reference the abuse of a child. It does not extend to statements unrelated to abuse that would be used for impeachment purposes. Here, the defense wanted the complainant's therapist to testify to his notes indicating that the complainant was prone to exaggeration and hallucinations. However, such testimony was properly excluded because it was privileged. [http://www.publications.ojd.state.or.us/docs/A143780.pdf State v Evans}, 260 Or App ___ (2013).
Solicitation to Commit a Crime Can Be Enough For an Attempt to Commit the Crime
Where defendant solicited two men to break into someone's apartment and kidnap a baby girl, she was properly convicted of attempted burglary. She appealed, arguing that she could not have been an accomplice to a burglary that was never committed. But the court finds that she was properly convicted as a principal, not as an accomplice. A jury can reasonably find that a solicitation goes beyond mere preparation. And here, there was evidence of a very specific plan that defendant was trying to carry out. Also, separate convictions for solicitation to commit burglary based on different incidents on different days do not merge. State v Badillo, 260 Or App ___ (2013).
