Oregon Appellate Ct - May 29, 2014

by: Abassos, Courtney Lynch, Lisa Fitzgerald, Evan Ottaviani, Katie Watson and Tim OConnor • May 29, 2014 • no comments

Dependency - Court Does Not Need to Reference Specific Evidence in Reunification Hearings   In a reunification hearing, a juvenile court does not need to reference the reasonableness of specific DHS efforts or instances of a parent’s insufficient progress so long as there is evidence in the record to support its legal conclusions.  Here, the juvenile court’s finding of reasonableness was legally sufficient based on evidence in the record of DHS’ efforts to involve all family members in therapy and efforts to pay for father’s ADHD medication. Likewise, finding the father’s progress insufficient was upheld based on evidence in the record that he lacked empathy and used visits to intimidate the child. Affirmed. Dept. of Human Services v. G.N., 263 Or App ___ (2014).

Prior Bad Acts - Intent - Prior Stabbing Against Same Victim 9 Months Prior Is Admissible in Murder by Stabbing Trial

In a murder trial where the victim was stabbed, the state is permitted to introduce evidence of a prior stabbing of the victim under OEC 404(3) to prove the requisite intent. OEC 404(3) prohibits the admission of evidence of other crimes to prove a person’s character, but allows for such use of evidence for any other relevant purpose. Here, the defendant had pleaded guilty to second-degree assault for stabbing the victim twice. Approximately nine months later, the victim was found dead in his home of multiple stab wounds. The court held that the two events were sufficiently similar for the prior act to be admissible to prove intent, and that the admission of the evidence did not violate due process. State v. Olson, 263 Or App ___  (2014).

Net Delay of 12 Months is Reasonable When 6 Months is Attributable to Lack of Judicial Resources

In a criminal case, a net period of delay of 12 months, when six months is attributable to lack of judicial resources, is a reasonable delay in bringing the defendant to trial under former ORS 135.747. Here, the prior accusatory instruments of a misdemeanor were not dismissed before the new charge for a felony was issued. The court holds that, under former ORS 135.747, when a defendant is ultimately brought to trial on felony charges, the speedy trial delay period is not measured from any earlier, misdemeanor accusatory instrument. Moreover, the net unconsented period of delay was reasonable for the purposes of former ORS 135.747.  State v. Ellis, 263 Or App ___ (2014).  

Harmless Error - Improper Exclusion of Defense Statement

An error in excluding defense evidence is harmless if, were it believed by the trier of fact, it would not:

• tend to prove or disprove a central issue
• bolster defendant’s version of his encounter or
• rehabilitate “the credibility of a witness’ trial testimony.” 

Here, the court reverses four of the counts because the excited utterance "they're jumping [defendant]" tended to prove up defendant's theory that he was attacked and tended to disprove the state's theory that defendant was the attacker. State v. Richards, 263 Or App __ (2014)

Particularity requirement of OEC 803(18a)(b) is met where notice allows a defendant to discern the substance of the statements.

The notice necessary to provide to the defendant under the OEC 803(18a)(b) hearsay exception for child abuse is met where the notice provides the date, speaker, and recipient of statements along with enough information concerning their location to allow their substance to be determined by the defendant. Here, the notice provided to the defendant made no mention of particular statements and included no direct references to page numbers of the intended statements. The notice did reference the specific date, location, and parties present for the conversation. The notice also included a three page range for where the statements were located in the discovery. The Court compares this notice favorably to other cases on the question and holds that the notice provided was sufficient to satisfy OEC 803(18a)(b). Affirmed. State v Ashkins, 263 Or App __ (2014).

Under former ORS 135.747 a delay of 643 days was an unreasonable delay.

A state caused delay of a DWI trial for 643 days amounted to a violation of the defendant’s right to a speedy trial under former ORS 135.747. The trial for the DWI case was delayed due to a witness in a menacing case against the same defendant being unavailable. The court held that the delay of the DWI case for the unrelated menacing case witness was not reasonable. Reversed and remanded for entry of a judgment of dismissal. State v Straughn, 263 Or App __ (2014).

Defendant’s Knowledge of a Warrant is One Factor in Determining a Stop

A defendant’s awareness that police are running a warrant check is only one factor in determining whether defendant was stopped. Here, officers approached and obtained identification from the defendant who appeared disheveled in a drug related area, pulling out and placing items of his open book bag on a park bench. The Court holds that defendant was not seized since he was approached in a public space, was not aware that the police were conducting a warrant check, and the police used a conversational tone. Affirmed. State v. Campbell, 263 Or App ___ (2014).

Defendant’s Drug History, Drug-Using Friends, and Trip to the Coast Do Not Reasonable Suspicion Make

An officer does not have reasonable suspicion of a crime where:

• defendant is showing signs of prior drug use
• is in the company of an individual who is under the influence
• defendant is on an overnight trip to the Oregon coast

Here, defendant and his girlfriend were behaving and speaking erratically, suggesting to the police that defendant was a long-term drug user. There was also some information that his girlfriend was high. The Court concludes that prior drug use, association with drug users and an overnight trip to the coast, neither individually nor collectively, constitute reasonable suspicion of drug possession. Thus, it was unlawful for the police to extend the initial stop for a domestic disturbance into an investigative stop for drug possession. Reversed and remanded. State v. Heater, 263 Or App ___ (2014).

Prior Illegal Search Does Not Invalidate a Warrant if There's Independent PC

A warrant is valid if the affidavit supporting the warrant contains probable cause unassociated with prior illegal police conduct. The fact that a warrant affidavit is partially based on an illegal search does not alone cause the warrant to be invalid. It is still a valid warrant if probable cause can be established in the absence of the information from the prior illegal conduct. Here, officers conducted two warrantless searches, questioned the defendant, and then obtained a search warrant. Assuming, arguendo, that the warrantless searches were invalid, the warrant was still good because the detective’s affidavit, even without the information from the warrantless entries, contained probable cause to believe evidence would be found in defendant's house. State v. Gardner, 263 Or App (2014).   

Concurrence Instruction Only Required For Multiple Occurrences of the Same Crime When an Essential Factual Element Differs

The Oregon constitution does not require a concurrence instruction when the jury is presented with evidence of multiple occurrences of the same crime. Here, the defendant was charged with sexually abusing his minor stepdaughter in their home. The record indicated that the abuse took place over a period of years and in multiple locations in the home but did not connect individual instances of abuse with specific locations or times. The court holds that where the record supports multiple occurrences of a crime the court need only give a concurrence instruction where the occurrences differ as to a factual element which is material or essential to the crime and the instruction is necessary to avoid an “impermissible danger of jury confusion.” In this case the concurrence instruction was sought as to the time and specific locations of the alleged abuse rather than to an actual element of the crime charged such as the manner of touching, age of the victim, or method of penetration. Because the record supported the occurrence of this abuse multiple times over a long period of time the court held that a concurrence instruction was only required on the essential elements of the crime. Affirmed. State v. Ashkins, OR App 263 ___ (2014).