Oregon Appellate Ct - June 11, 2014
by: Abassos, Samantha Robell, Courtney Lynch, Lisa Fitzgerald, Katie Watson and Evan Ottaviani • June 11, 2014 • no comments
Surcharges Are Only Allowed If They're Authorized By Statute
A trial court plainly errs by imposing a surcharge outside of what's allowed by the authorizing statute. Here, the court imposed theft surcharges for a 2008 offense even though the law creating the surcharge only allowed for the imposition of a surcharge on offenses occurring between October 2009 and July 2011. (Oregon Laws 2009, chap 659, sec 2 was never codified.) The appellate court exercises its discretion to reverse the error in the name of judicial economy. Affirmed. State v. Simkins, 263 Or App ___ (2014).
Carrying a Concealed Weapon - Catchall Provision Only Includes Items Designed and Intended Primarily as Weapons
An item must be designed and intended primarily as a weapon to fall under the catchall provision of ORS 166.240, carrying a concealed weapon. ORS 166.240 prohibits any person from carrying certain, enumerated concealed weapons on their person as well as “any similar instrument by the use of which injury could be inflicted upon the person or property of another person.” In this case, the defendant was carrying a knife hanging from a chain around his neck. The state did not introduce any evidence to demonstrate that the knife was “designed and intended” primarily as a weapon. As such, the court held that there was no evidence from which a reasonable fact-finder could conclude that the knife the defendant was carrying was an instrument that fell within the meaning of the statute. Reversed. State v. Nelson, 263 Or App ___ (2014).
Dependency - A Parent May Not Use a Foster Placement to Argue That The Children Do Not Present a Current Risk of Harm
A parent in a dependency case may not assert as a jurisdictional defense the fact that the child was placed by DHS in foster care. I.e., a parent may not use their previous endangerment of a child to argue that the child is not currently at risk of harm. DHS removal of “H from the serious risk posed by [mother] was predicated on its determination that [mother’s] parenting had created a serious risk of harm for H.” Here, DHS removed H and her siblings from the mother’s and stepfather’s care due to dangerous living conditions including: presence of drug paraphernalia, physical, verbal and sexual abuse. Mother argued that the evidence indicated only that H was in danger while in mother's care, an event unlikely to occur before H turned 18 since mother was in prison and H was in foster care. The court calls the argument "cynical" and rejects it, indicating the importance of "encouraging as complete an understanding of the scope of the harm that mother's parenting presents to H as possible." Affirmed. Dept. of Human Services v. S. R. C., 263 Or App ___ (2014).
Actual Bias is Required to Invalidate a Search Warrant Based on a Judge's Personal Conflict
The fact that a judge previously represented the defendant will not invalidate a search warrant the judge issued to search defendant's house. Only actual bias or a high probability of actual bias will invalidate a warrant after the fact. Here the judge had represented the defendant 5 years prior to issuing the search warrant. But because the judge did not remember any specific facts about the defendant and had no personal involvement in the new investigation, no actual bias was present.Affirmed. State v. Pierce, 263 Or App ___ (2014).
Hearsay - If an Exculpatory Statement is Elicited by the Defendant at Any Point in the Trial, Even if Already Elicited by the State, the Defendant is Subject to Impeachment
For the purposes of OEC 806, it’s irrelevant whether or not the defendant or the state initially elicited the statement. When a defendant elicits evidence of his own hearsay statement as exculpatory evidence at some point in the trial (even if those statements had previously been elicited by the state) without intending to take the stand and testify regarding that statement, OEC 806 is triggered and the defendant may be impeached. Though the state had asked the question originally, by repeating the question “the defendant puts his own credibility at issue as if he had testified.” Affirmed. State v. Verardo, 263 Or App ___ (2014).
Criminal Mistreatment - Leaving Children With Abusive Boyfriend
Leaving a child with a known abuser can constitute "intentionally withholding physical care" for the purposes of criminal mistreatment in the first degree. Here, defendant committed criminal mistreatment by leaving her children with her boyfriend because she exposed them to a known harm in a situation where that harm was likely to occur. Despite evidence of three instances of abuse, including admissions by boyfriend that he abused the kids, defendant decided to leave her children with boyfriend again. On that occasion, boyfriend's abuse led to the death of one of the children. Defendant left her unprotected children exposed to a known harm in a situation where that harm was likely to occur. Affirmed. State v. Burciaga, 263 Or App ___ (2014).
The court may decline to remedy a plain error by exercising its discretion where this error is not written waiver under Article 1, section 11 and will not address a claimed error which is not preserved or plain.
The court may exercise it discretion in choosing not to remedy the plain error of the trial court’s failure to require a written waiver of the defendant’s right to have sentencing enhancement factors tried before a jury under ORS 136.770 and ORS 136.773. The court exerted this authority after narrowing the scope of Barber, so that Barber’s preclusion of the negative exercise of discretion by the appellate court in reviewing plain error is limited to issues of written waiver under Article 1, section 11 of the Oregon Constitution. Here, the defendant expressly and clearly waived his right to have sentencing enhancement factors tried before a jury. After receiving a departure sentence he appealed, claiming it was plain error that the trial court failed to require a written waiver of his right to have a jury determine the sentencing factors. The court did not answer the defendant’s contention that the written waiver requirement of Article 1, section 11 also applied by extension to the Sixth Amendment to the U.S. Constitution. The court declined to address this question because the issue was not preserved at trial and was “reasonably in dispute” legally and thus could not be plain error. Affirmed. State v. Fernaays, 263 Or App ___ (2014).
