Oregon Appellate Court - May 14, 2014

by: Abassos, Alarson, Cmaloney and Samantha Robell • May 14, 2014 • no comments

FTA on a Criminal Citation - Proof of the Type of Citation is Required, Not Proof That the Citation Was Done Correctly

Failure to appear on a criminal citation (133.076) requires proof that the defendant was served with a citation that is one of the types of criminal citations listed in ORS 133.055 to 133.076. The state does not need to prove that the citation complied with the requirements of ORS 133.055 to 133.076. At issue was the following language in ORS 133.076 that a person is guilty of FTA if "the person has been served with a criminal citation issued under ORS 133.055 to 133.076 and the person knowingly fails to [appear]" (italics added). State v. Kenny 262 Or App __ (May 2014).

FTA on a Criminal Citation - Mistaken Belief as to the Necessity of Appearance is Relevant

A defendant's mistaken belief that she was not required to appear is relevant at a trial for Failure to Appear. The written command in a criminal citation to appear in court at a particular date and time is relevant evidence for the state, but it does not preclude a contrary argument by the defendant. Here, defendant was not able to appear on the date specified on the citation, visited the district attorney’s office and police station to determine what to do, heard nothing more about charges being filed, and concluded she did not need to appear. The court holds that such evidence was relevant to whether the defendant knowingly failed to appear. State v. Kenny 262 Or App __ (May 2014).

An Officer Must Have an Objectively Reasonable Belief that an Item is Lost before Reviewing Its Contents

An officer’s belief that property is lost must be objectively reasonable. To determine the objective component, a court must consider:

• the nature of the property as found,
• the location in which it was found,
• the manner in which it was found,
• the potential or possible amount of time the property may have been separated from its owner, and
• the presence or absence of any other measure taken to determine ownership

Here the police located and reviewed the contents of a black bag laying on private property approximately three to five feet away from the defendant’s door, and roughly seventy-five feet away from the street. Reversed and remanded for the trial court to determine whether the officer's belief was objectively reasonable. State v. Vanburen 262 Or App (2014)

Dependency - ORS 419B.325(2) Does Not Apply to a Jurisdictional Determination

The relaxed evidentiary standard of ORS 419B.325(2) does not encompass a juvenile court’s jurisdictional determination. However, ORS 419B.325(2) does apply to permanency hearings. The court rejects father's argument that a permanency hearing is bifurcated into an adjudicative phase and a dispositional phase. The court relies on the plain language of ORS 419B.325(2) that when determining proper disposition of a ward, certain files may be received by the court without regard to their competency or relevance. Remanded to the trial court to reconsider the motion to dismiss. Dept. of Human Services v. J. B. V. 262 Or App (2014)

Article 1, Sec. 11 – Testimony During Case in Chief Must Be Sworn

A defendant’s Article 1, section 11 right to be heard does not include the right to make an unsworn statement to the jury during the defendant’s case in chief. The restrictions surrounding sworn testimony—under oath, OEC 603, cross examination—do not prevent defendants from fully exercising their right to be heard. State v. Wilcher 262 Or App __ (May 2014).