Oregon Appellate Ct - Mar. 26, 2014

by: Abassos and Megha Desai • March 27, 2014 • no comments

DMV Suspension Hearing - Setover - Jury Duty is Not an Official Duty Conflict

For the purpose of setting over a DMV suspension hearing, an officer has an official duty conflict when the officer is required be in another place to conduct business as a police officer. Here, the officer had jury duty. Because jury duty was not an obligation of the officer's position as a police officer, it does not justify extending a DMV hearing. Since the process for suspending petitioner's license was faulty, the suspension must be set aside. Johnson v DMV, 261 Or App (2014)

Merger – Sufficient Pause – Assault III (aided by another) and Misdemeanor Assault IV

There was a sufficient pause between assaults, justifying a denial of merger, where defendant punched the victim-bouncer in the face, was wrestled to the ground and then, with the help of a friend, escaped and hit the victim with a chair. It was relevant here that the trial judge made a specific finding that defendant could have and should have backed down at the point where he was down on the ground, and instead chose to re-enter the fray. State v King, 261 Or App (2014).

ECSA - Nudity Alone May Be a Lewd Exhibition

Mere nudity alone is sufficient to constitute a "lewd exhibition" for encouraging child sex abuse if it would produce lust or sexual desire in the person charged. That is, whether a picture is lewd is from the perspective of the person charged, not an objective viewer. Here, there was more than sufficient evidence from the testimony of the child that the child posing nude for the photos produced sexual desire in the defendant. Thus, there was sufficient evidence that it was a lewd exhibition.

Also, there was sufficient evidence to support the state's theory that defendant induced (i.e. persuaded) a small child to let him take partially nude pictures of her where the particular pose in the pictures, the child's facial expression and mother's testimony regarding defendant always being clothed all suggested that the pictures would not have occurred without persuasion or inducement. State v Smith, 261 Or App (2014).

Disproportionality - Remand for Re-Sentencing to Consider Buck/Rodriguez

Where the trial court in a pre-Buck/Rodriguez Measure 11 sentencing expressed a belief that the Measure 11 sentence was unconstitutionally disproprotionate but that he "had no choice", the appropriate appellate remedy is to remand for the trial court to resentence defendant with the benefit of the Supreme Court decision. The defense attorney also made an argument for the record while simultaneously expressing a belief that there was nothing the court could actually do, aside from imposing the Measure 11 sentence. State v Rivera, 261 Or App (2014).

Severance of Joined Charges - Substantial Prejudice - "Sufficiently Simple and Distinct"

Once charges are appropriately joined, they may only be severed upon a showing of substantial prejudice. Substantial prejudice does not exist if "the evidence supporting the various charges 'would be mutually admissible in separate trials or is sufficiently simple and distinct to mitigate the dangers created by joinder.'" Here, there was no temporal or evidentiary overlap between the person crimes and drug crimes such that a jury would have difficulty assessing guilt on each set of charges separately. Thus, substantial prejudice was not established. Note that for reasons that aren't entirely clear, the better argument was not raised on appeal as reversible error: "the drug crimes and person crimes should not have been charged in a single indictment because they did not satisfy the requirements for joinder under ORS 132.560(1), in that they were not "of the same or similar character," "part of the same act or transaction," or "parts of a common scheme or plan." Only if cases are properly joined should a court consider severance. Citation. State v Roelle, 261 Or App (2014).

Warrantless Seizure - Exigent Circumstances - Imminent Destruction of Computer Evidence

A detective had a reasonable belief that evidence was about to be destroyed where:

• The detective had probable cause to believe that defendant had child pornography on his computer
• Defendant had given his computer to someone with instructions to delete everything, including back-up files
• That person had previously assisted in deleting child pornography from computers
• When the detective went to the person's house, he saw defendant's hard drive hooked up to a computer with some work that had already been done.

Thus, the court did not err by denying defendant's motion to suppress. State v JCL