Oregon Appellate Ct - July 9, 2014

by: Abassos, Lisa Fitzgerald, Evan Ottaviani, Katie Watson and Tim OConnor • July 9, 2014 • no comments

Evidence That Defendant Was Not at the Location of the Incident is Not Alibi Evidence

Evidence that asserts that the defendant was not at the place where the offense occurred is not alibi evidence and does not require notice under ORS 135.445. Here, instead of asserting that defendant was in another, particular place at the time of the alleged offense, the grandmother's and aunt’s testimony was meant to establish that defendant had left the house before the alleged sexual abuse occurred. However, exclusion of this testimony was harmless error because the grandmother’s account lacked credibility and the aunt’s testimony did not necessarily conflict with the victim’s. Affirmed. State v. Paniagua-Montes, 264 Or App ___ (2014).

AIPs - “Substantial and Compelling Reasons” For Denial No Longer Necessary

“Substantial and compelling reasons” are not necessary to deny defendant eligibility for Alternative Incarceration Programs. As of 2008, the burden shifted to the defendant to establish why he should be eligible. Here, defendant had faked a heart attack to get out of a UA, failed other UAs and resisted arrest. The trial court was entirely within its discretion to order the defendant ineligible for AIPs. Affirmed. State v. Cross, 264 Or App ___ (2014).

AIPs - “Substantial and Compelling Reasons” For Denial No Longer Necessary

To be eligible for Alternative Incarceration Programs (AIPs), the defendant must show that the eligibility requirements in ORS 137.751(1) are met. In this case the trial court mistakenly applied ORS 137.750(1)—an outdated framework which authorized AIP unless the court had “substantial and compelling reasons” to deny eligibility. Under the new statutory framework, ORS 137.751(1), the court is no longer required to find “substantial and compelling reasons” to deny eligibility. Although the trial court used the wrong statutory framework in this case, the court affirms the denial of AIP, holding that the defendant, in failing to notify the court of the new framework, was “actively instrumental” in the error. Affirmed. State v Goodenough, 264 Or App ___ (2014).

Officer Testimony Regarding Refusal to Submit to a Search - Prejudicial When Inference of Guilt Tends to Negate the Defense.

Testimony is considered prejudicial to a defendant when it creates an inference of guilt that tends to negate the defendant’s defense. Here, an officer testified at trial that a "normal" person would have permitted him to examine the bills in defendant's pocket to see if they were counterfeit; as opposed to the abnormal and guilt-inferring refusal by the defendant to permit an "inspection". Evidence of the defendant’s constitutionally permitted refusal to submit to a search was inadmissible, and admitting it would likely have created an inference of guilt that went to the heart of his defense that he did not know the currency was counterfeit. Reversed and remanded. State v. Mendoza, 264 Or App ___ (2014).

No Violation of Due Process When Probation Extended For Failure to pay Fines and Restitution

The SCOTUS case Bearden v. Georgia establishes that it is a violation of the Due Process Clause for a state to revoke an indigent defendant’s probation for a failure to pay fines and restitution without determining either the ability to pay or the adequacy of alternative forms of punishment. Bearden does not hold that the Due Process Clause prohibits the imposition of non-incarcerative sanctions for failing to pay fines or restitution. Here, an indigent defendant was sentenced to 12 months additional probation at a show cause hearing for failure to pay fines and restitution. He appealed claiming that, under Bearden, the state had the burden to prove that he could have made payments prior to imposing any additional sentence for a failure to pay. The court does not address this claim because Bearden only applies to cases where defendants are incarcerated for an inability to pay. Affirmed. State v. Bell, 264 Or App ___ (2014).