Oregon Appellate Ct - June 18, 2014
by: Abassos, Lisa Fitzgerald, Katie Watson, Sam Robell, Evan Ottaviani and Tim OConnor • June 18, 2014 • no comments
Dependency - An Appeal of Jurisdiction is Moot Once Jurisdiction is Terminated
A parent may not appeal the juvenile courts underlying jurisdictional judgment once a parent regains custody over their child, and the juvenile court terminates jurisdiction and wardship over the child. Mother and father lost jurisdiction over T based on the allegation that (1) mother had a substance abuse problem that presented a risk to T, and (2) that father did not have an order granting him sole legal custody of T and therefore, is unable to protect T from mother. Parents then appealed the juvenile courts determination, after the juvenile court had dismissed jurisdiction and terminated wardship over T, claiming that the original judgment presented collateral consequences. The court stated that the parents only presented claims—that the future possible actions by DHS and possible prospective employment – “are mere possibilities and purely speculative.” The court dismissed the appeal as being moot. Dept. of Human Services v. B. A., 263 Or App ___ (2014).
Miranda Warnings Communicate a Restriction of Freedom
Miranda warnings may be reasonably interpreted by an individual, during the beginning of a consensual encounter with police, as a means of restricting their freedom. “Miranda warnings are required only in circumstances where a person is not free to leave. . . a person given those warnings in [similar circumstances] would interpret them as communicating some restraint on his or her freedom.” In this case defendant’s wife was asked, partly in front of defendant, about a vehicle that was crashed in a nearby ditch. Defendant’s wife stated she had crashed the truck so that she wouldn’t run over a dog in the street. Police viewed defendant sitting behind his wife and asked him to exit his home to come outside to talk. Police then walked defendant down to a flat area to perform a field sobriety test, where defendant was read his Miranda warnings, and asked to consent to a pat-down. The officer’s actions, when viewed under the totality of the circumstances, constituted a show of authority rendering the encounter as a stop. Reversed and remanded. State v. Charles, 263 Or App ___ (2014).
A Pre-Mills MJOA on Venue Should be Remanded to Give Defendant an Opportunity to Object Properly
Where defendant, prior to State v Mills, unsuccessfully challenged venue via MJOA, the case should be remanded to the trial court to allow the defendants an opportunity to object to venue. In Mills, the Supreme Court held, contrary to its prior decisions, that the Oregon Constitution does not require the state to prove venue beyond a reasonable doubt, and the criminal defendant, instead, has a waivable right to object to improper venue by way of a pretrial motion. Here, given the state of the law before Mills, it would be unfair to conclude that the defendant had waived his right to challenge venue by waiting until the state had rested its case. State v.Bigsby, 263 Or App ___ (2014).
5th Am. Right to Counsel Must Be Clearly Invoked in DUII Breath Test Context
A DUII suspect who wishes to invoke his Fifth Amendment right to counsel must be clear that he is not merely accepting his more limited right to call an attorney prior to the administration of a breath test under Article I, section 11 of the Oregon Constitution. In determining whether a defendant made an unequivocal, Fifth Amendment request for counsel, the defendant’s statements are viewed in lieu of the totality of the circumstances. Here, the defendant asked to speak to an attorney after being informed by the police officer that he could receive privacy if he chose to call an attorney before deciding whether or not to submit to a breath test. The court holds that, in this context, a reasonable officer would have understood the defendant to be invoking his more limited right to speak with an attorney under Article I, section 11 of the Oregon Constitution, rather than his right to counsel under the Fifth Amendment, or Article I, section 12. State v. Martinez, 251 Or App ___ (2014).
Merger - Sufficient Pause - ECSA & Using a Child in Display of Sexually Explicit Conduct
Under ORS 161.067(3) when a criminal episode involves multiple violations of the same statute with the same victim, to support multiple charges there must be a sufficient pause in the conduct which gives the defendant an opportunity to renounce the criminal intent. The mere passage of time is not sufficient for this. If there is no break in the conduct, then the incident represents one charge. Here, the defendant took and transferred to his computer three pictures of a minor in his care engaging in sexual conduct and was convicted on three counts of encouraging child sex abuse and using a child in display of sexually explicit conduct. The court of appeals finds that the three counts of each crime should merge into each other. The court reasons that the charges for the transfer of the pictures must merge because the only evidence that the pictures were not transferred concurrently was “an invariable two second difference” in the time stamp on the transfers. This was not sufficient on its own to show that the files were not transferred concurrently much less that there was a sufficient pause to allow renunciation of criminal intent. The court ruled that the charges for taking the pictures must merge because they all took place during a continuous instance of abuse and there was no evidence of a pause and resumption of the activity. Reversed and remanded for merger of convictions. State v. Cale, 263 Or App ___ (2014).
Attempt to Elude - No Requirement of Evasive Maneuver
The plain meaning of the terms “flee” and “elude”, in ORS 811.540(1), contain no requirement of an evasive maneuver to complete the crime of attempting to flee from or elude a police officer. There is also no requirement that the suspect must have intended to escape. The offense is complete when a person is given a signal to stop and knowingly continues on, refusing to stop. Here, the defendant was driving home and was signaled to stop after speeding, turning without a signal, and rolling through a stop sign. Defendant drove roughly 250 yards to reach his driveway before stopping and was convicted of attempting to flee from or elude a police officer. He appealed his conviction claiming that the statue required that he drive evasively as an element of the crime. The court rejected this argument and affirmed the conviction. State v. George, 263 Or App ___ (2014).
Assault II - Knowingly Applies to "Dangerous or Deadly Weapon"
Second-degree assault, under ORS 163.175, requires that a person knowingly use a dangerous or deadly weapon. Here, the defendant struck another man in the face with a broom handle. At trial, the court refused to either instruct the jury that "knowingly applies" to the nature of the weapon or allow defendant to argue in closing that the state had failed to prove that he knew that a broom handle was a dangerous weapon. The court holds that the mental state requirement applies to all the elements of the crime. The court also holds that it was abuse of discretion by the trial court to prevent the defendant from arguing a failure to prove a material allegation of the charge in closing arguments, despite the broad discretion and control trial court has concerning the content of closing arguments. Reversed and remanded. State v. Fletcher, 263 Or App ___ (2014).
Sex Abuse II - A Sleeping Person is “Physically Helpless”
A person is “physically helpless” when asleep. "Physically helpless" means “unconscious” or “for any other reason . . . physically unable to communicate unwillingness to an act”. Defendant was found guilty of first degree sexual abuse when his roommate woke up with defendant’s hand in her vagina. Affirmed. State v. Marker, 263 Or App ___ (2014).
A Decision to Tow a Car Does Not Fall Under the Administrative Seizure Exception When It Is Motivation By Suspicion of Criminal Activity
An officer who orders a car towed must have administrative reasons, such as a hazard in the roadway, in order for the administrative seizure exception to apply. There was no administrative justification for towing defendant’s Jeep when the car was left in a legal parking position in a non-dangerous area. Here, after such a seizure, an officer was able to match a decal left at the scene to the Jeep sitting in the impound lot. The evidence was then included in an affidavit used to obtain a search warrant. Reversed and remanded for evidentiary decision on the connection between the seizure and the search. State v. Lambert, 263 Or App ___ (2014).
Burglary - Tents are Buildings
Tents are considered buildings, for the purposes of Burglary II, when they have been adapted for use as a place of business. Here, a company brought large equipment into tents that could not be easily moved about the property. Even though the tents were not physically modified, they were “sufficiently adapted from any number of other possible uses for the specific purpose of allowing [the company] to carry on its water-testing business.” Affirmed. State v. Lambert, 263 Or App ___ (2014).
Unreasonable Delay and Speedy Trial Rights Under Former ORS 135.747
In determining whether a client’s former ORS 135.747 speedy trial rights were violated, the court must first determine the relevant amount of delay by subtracting from the total delay any periods of delay that the defendant requested or consented to. Upon finding the relevant amount of delay, the court then determines if that net delay is reasonable. Filing a motion “necessarily entails delay” and is considered “in effect, a request for postponement for a reasonable period of time to rule on that motion” but not “an open-ended agreement to any ensuing postponement, even if there was good reason for it.” A crowded docket is reason for some delay but with a case that has “already been substantially prolonged”, a reason must be given for why that case was not given priority along with other older cases. A choice to place a case in abeyance may be a reasonable choice but such a delay, based on a choice by the DA , is not a delay consented to or requested by the defendant. An unconsented delay of 21 months in a misdemeanor case, which approached the two-year statute of limitations, was unreasonable. State v. Blevins, 263 Or App ___ (2014).
Lisa
Right to Be Present at Trial - Defendant’s Awareness of Trial Date and Location Does Not Establish Voluntary Absence
Evidence that a defendant has been informed of the trial date and location is not a sufficient factual basis to establish voluntary absence from trial. Here, the court held that the defendant’s misdemeanor trial should not have proceeded in defendant's absence without evidence that the absence was voluntary. Reversed and remanded. State v. Shutoff, 263 Or App___ (2014).
Appeals Must Be Raised within 30 Days and Cannot Address Issues from Judgments Outside That Timeframe
Under ORS 138.053 an appeal must be made within 30 days of the judgment and cannot address issues from prior judgments outside the 30 day timeframe. Here, defendant was sentenced in May 2011 and did not appeal the judgment within 30 days. Later, in September 2011 his probation terms were modified and the defendant appealed. The court held that while issues specific to the probation modification could be addressed, otherwise appealable issues from the original judgment needed to have been appealed within 30 days of the original judgment. Affirmed. State v. Ritchie, 263 Or App ___ (2014).
