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.'" FN 3 Only if cases are properly joined should a court consider severance. ORS 132.560. 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 the suspect-youth had child pornography on his computer
• The youth 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 the youth'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, 261 Or. App. ___ (2014).

ECSA - MJOA - Intent to Duplicate or Display by Sharing

For the purposes of an MJOA on Encouraging Child Sex Abuse, there was sufficient evidence that a youth intended to share the child porn pictures on his computer where they were in a "shared" folder and defendant had the sharing program Limewire on his computer. This is true even though the folder was marked as hidden and unable to actually be shared via Limewire. State v JCL, 261 Or. App. ___ (2014).

Resisting Arrest - Self-Defense Jury Instructions Must Refer to Defendant's State of Mind, Not the Officer's

In a resisting arrest case, any statement instructing the jury to consider the state of mind of the arresting officer is a clear reversible error. Specifically, the jury cannot be expressly instructed to consider whether the officer reasonably believed force was lawful because self-defense relies only on whether defendant reasonably believed force was necessary. See State v. Oliphant, 347 Or. 175 (2009). Here, the jury instructions stated that an officer is “justified in using physical force on a person being arrested when and to the extent that the officer reasonably believes” that force is necessary to arrest the person. State v. Poitra, 261 Or. App. ___ (2014)

Motion to Dismiss on Double Jeopardy Grounds must be made Prior to Trial

Defendant must raise the issue of double jeopardy in a pretrial motion to dismiss, which the trial court decides as a matter of law. Here, the court declined to discuss the merits of defendant’s double jeopardy argument because it was raised at the conclusion of the second trial (after remand). State v. Berry, 261 Or. App. ___ (2014)

The Denial of a Day-of-Trial Continuance Request is Unlikely to be an Abuse of Discretion

A trial court does not abuse its discretion in denying a day-of-trial request for continuance where there were opportunities prior to trial to make the request. Here, defense counsel had the case for two months but told the court on the day of trial that, because the defendant had been held in an out-of-county jail, he had just determined the existence of a potential mental health defense for which he needed to consult an expert. In rejecting the defense argument, the court quotes a prior case chastising a defense attorney for an "abuse of the system" because he waited until the afternoon before trial to request a continuance. In this case, the court finds that there were various opportunities prior to trial to meet with the client and to request a continuance. State v. Licari, 261 Or. App. ___ (2014)

Denial of a Motion for Continuance - Harmless Error - Defense Forced to Trial Without Completing Forensic Testing

Where the defense was denied time to complete forensic testing prior to trial, any error is harmless unless it is shown that the testing would have made a difference. Here, the defense in a sex case was only able to acquire clothing for DNA testing a few days before trial, because of DA objections and court demands (resulting in a successfuly mandamus, etc). The judge proceeded to trial on the case but repeatedly told the defense that if the testing turned up anything at all that justified a continuance that he would grant either said whatever time was needed. As far as the record shows, nothing ever turned up. Ergo, according to the court, any error in denying the continuance was harmless. State v Lobo, 261 Or. App. ___ (2014).

Dependency - Jurisdiction - Lack of a Custody Order - DHS Must Prove A Risk of Serious Loss or Injury

Where DHS is alleging, as the basis of jurisdiction, that a parent has not sought a custody order, DHS must also show that, as a result there is a risk of serious loss or injury to the children. In this case:

"the most that the record establishes is that, although mother did not like having to cede physical custody of the children to father in the past, she had not actively contested his custody. Therefore, the state's conclusory "risk of harm" argument that "father would be unable to prevent mother from removing the children from his care" without a custody order is not supported by evidence in the record." DHS v IS, 261 Or. App. ___ (2014).

Diagnosis of Sex Abuse Where There IS Physical Evidence - 403 Balancing Test Required

Admissibility of a diagnosis of sexual abuse supported by physical evidence is subject to the OEC 403 balancing test. The three part test to determine when physical evidence is sufficiently corroborative for admissibility of the diagnosis is:

(1) expert is better suited to make the complex factual conclusions from the physical evidence;

(2) physical evidence is of the type of abuse alleged; and

(3) the medical expert bases the diagnosis of sexual abuse on the physical evidence.

See State v Ovendale. Furthermore, when physical evidence of abuse exists, additional testimony offered in support of a diagnosis is admissible as long as it does not constitute “clear and direct vouching” for the credibility of the victim. Here, a doctor's diagnosis of sexual abuse was admissible because the physical evidence was consistent with the type of abuse alleged, required expert testimony to make complex factual determination, and the doctor relied on the physical findings from a hospital examination in making his diagnosis. The court also held that expert testimony from Kid’s Intervention and Diagnostic Service Center (KIDS Center) describing the characteristics of truthful victims and of the victim in this case was admissible to support the diagnosis and did not constitute direct vouching of the credibility of the victim. State v Beauvais, 261 Or. App. ___ (2014)

Dependency - Jurisdiction - A Motion to Terminate Wardship May Not Be Made By A Collateral Attack on the Initial Jurisdictional Decision

Where mother collaterally attacked the initial jurisdictional determination through a guardianship hearing, she "did not move to terminate the wardship, or otherwise properly place the continuing jurisdiction of the court at issue." Mother repeatedly asserted that the problem with a guardianship was that mother never had a drug problem and DHS never established that mother had a drug problem. The court finds that this is not an argument to terminate wardship or otherwise place continuing jurisdiction at issue. DHS v RS, 261 Or. App. ___ (2014).

PCR - Appellate Counsel Was Not Inadequate for Failing to Raise a Southard Issue Before the Opinion but After Review was Granted

Appellate Counsel was not constitutionally inadequate where, after the opening brief had been filed, the Oregon Supreme Court granted review on a case that would ultimately change the law to client's favor. "The Oregon Constitution does not require appellate counsel to advance every conceivable argument in a given appeal on the off-chance that one of them will eventually prove effective." J. Nakamoto writes a dissent to argue that a lawyer is inadequate for failing "to assert a ground for a new trial that was preserved in the trial court and that was the subject of Supreme Court review in a significant case during the briefing in petitioner's direct appeal in this court."Mesta v Franke, 261 Or. App. ___ (2014).

Interfering With a Peace Officer - A Lawful Order is One that is Legally Justified, Not One Made While the Officer is Lawfully Present

Also: The Exclusionary Rule Does Not Apply to Crimes That Are Threatening to Police During an Illegal Stop or Entry

Once the emergency triggering a community caretaking exemption to the warrant requirement terminates, an officer who lawfully entered land pursuant to the exemption is no longer lawfully present. Thus, a court errs if it gives an instruction regarding the community caretaking exception for the guilt phase of a prosecution where the exception had terminated. However, the exclusionary rule will not apply to evidence of crimes that are threatening to police officers during an illegal stop or entry. Charges emerging from a failure to obey an order given in response to threatening behavior will be similarly exempt from the exclusionary rule, because the lawfulness of an order is not determined by the lawfulness of the officer’s presence. In this case, police responded to an emergency call for help, but upon arrival found the emergency to be nonexistent. Although their continued presence was unlawful, an ensuing skirmish with the family resulted in defendant being convicted of interfering with a police officer (IPO), resisting arrest, and disorderly conduct. The exclusionary rule does not apply to any of the charges because the crimes were threatening toward the police. Similarly, for IPO, the court finds that the lawfulness of the officer’s orders in response to defendant’s threatening behavior “turn[s] not on the lawfulness (or lack thereof) of the deputies’ presence, but rather on whether defendant’s conduct reasonably led the deputies to feel threatened.” Thus, the state’s instruction regarding the community caretaking exemption was also in error because it allowed the jury to conflate the lawfulness of presence with the lawfulness of the officers’ orders. State v Bistrika, 261 Or. App. ___ (2014).

Parole - Agg Murder - An Expired Matrix Term Does Not Trigger Automatic Release

A prisoner with an expired matrix term is not entitled to an automatic release from prison; the parole board has the power to hold a release hearing before the scheduled release date. See Janowski/Fleming v. Board of Parole, 349 Or. 432, 458-59 (2010). Furthermore, petitioner’s argument that the board erred by setting the wrong parole-release date is moot. The parole board postponed petitioner’s release date from March 2012 to March 2014 at a September 2011 hearing. Thus, the court declines to address whether the parole board could or did appropriately adjust petitioner’s matrix calculation. Miller v Board of PPPS, 261 Or. App. ___ (2014).