Oregon Appellate Ct - July 16, 2014

by: Abassos, Samantha Robell, Lisa Fitzgerald, Evan Ottaviani, Katie Watson and Tim OConnor • July 20, 2014 • no comments

A Person Does Not Have a Privacy Interest in a Gated Area Used By Lots of People

An officer may lawfully enter a gated lot without a warrant if defendant has no privacy interest in the lot. Here, an officer suspected defendant of DUII and followed her into a storage facility lot after she entered a code to open the gate. Defendant could not exclude other renters, their guests, or employees; therefore she had no privacy interest in the lot. Reversed and remanded. State v. Michel, 264 Or App ___ (2014).

Motion to Postpone - Improperly Denied Where Insufficient Time to Prepare for Trial

It is improper to deny a motion to postpone when, through no fault of the defendant, there are delays in obtaining counsel that give the final attorney insufficient time to prepare. Here, the defendant, charged with sexual abuse, went through a series of attorneys through no fault of his own. The attorney who finally ended up with the case had only 34 days to prepare for trial. This was an insufficient amount of time to complete the investigation necessary to build a defense. The trial court’s consideration of the strength of defendant’s theory of the case was an impermissible basis on which to deny the motion. Defendant was prejudiced because the extra time to investigate could have produced evidence to support his defense. Reversed and remanded. State v. Ferraro, 264 Or App ___ (2014).

An Error is Only Preserved When a Remedy is Requested

An error is only preserved when the defendant requests the court to take an action. Here, the defendant argued, on reconsideration, that the court used an overly “severe” preservation standard on the issue of whether he sufficiently authenticated an exhibit by saying it was possible to view a website to verify the exhibit’s accuracy. The court concludes that aspects of its original opinion did use an unduly “severe” preservation standard. However, the court further holds that the defendant’s claim was not preserved because, by inviting the trial court to view a website to verify the exhibit’s accuracy, the defendant did not make a request that gave his “opponent and the trial court enough information to be able to understand the contention and to fairly respond to it.” Reconsideration allowed; former opinion modified and adhered to as modified. State v. Durando, 264 Or App ___ (2014).

An Officer’s Directive that Alters a Person’s Course of Movement is Not a Per Se Show of Authority under Oregon Constitutional law.

An officer’s directive that alters a person’s course of movement is not a per se show of authority indicative of a seizure under Oregon Constitutional Law. A seizure occurs when the totality of circumstances demonstrate that an officer has manifested, by word or deed, a show of authority that significantly restricts a person’s freedom of movement. Here, when the defendant approached the police car to continue a conversation, the police officer informed him to “stay on the curb” before exiting his vehicle to talk to the defendant on the sidewalk. The court held that the officer’s request that the defendant stay on the curb was a de minimus request that did not alter the defendant’s movements in any significant degree. As such, there was not the requisite “show of authority” to constitute a seizure under the Oregon Constitution. The court also concluded that the officer’s repeated requests to search the defendant’s bags did not amount to a seizure either, per the Oregon Supreme Court’s decision in Highly. Affirmed. State v. Cline, 264 Or App ___ (2014).

Tim

Because constructive possession of a firearm is a violation of ORS 166.270 there must be a break in this constructive possession of a firearm to support multiple convictions Even where a felon increases his level of possession of a firearm from constructive to actual possession there is not a separate occurrence of possession unless there is a break in the underlying constructive possession of the firearm. Here, a convicted felon was charged with four violations of ORS 166.270 for having access to four firearms in his father’s gun safe. Despite evidence that the defendant had handled two of the firearms, merger of the convictions was appropriate because constructive possession of all four firearms occurred when the defendant gained access to the gun safe and this constituted a continuous violation of ORS 166.270 with no “pause” in the criminal conduct as required under ORS 161.067(3) to support multiple convictions. Reversed and remanded to merge convictions; otherwise affirmed. State v. O’Dell, 264 Or App ___ (2014).

Sam

Issue Preclusion – Should be asserted before the issue is relitigated Defendant must assert the doctrine of issue preclusion before trial when:

• the issue at stake in the circuit court proceedings is not hard to discern ahead of time,
• and there is no doubt as to what issue had been litigated in the exclusion hearing.

Here, defendant was found not guilty of consuming alcohol at his exclusion hearing, due to the lack of evidence presented by Portland Parks Bureau. The officer’s absence was due to an administrative error. Defendant was then charged with the same offense in criminal court. Defendant presented the doctrine of issue preclusion at the conclusion of their cross examination of the arresting officer. The Court reasoned that the “the interests sought to be protected by the doctrine of issue preclusion--a litigant’s avoidance of unnecessarily repetitive adjudicatory proceedings and the attendant unnecessary consumption of judicial resources--are not served by an invocation of the doctrine at the conclusion of the proceedings that the doctrine was ostensibly designed to forefend.” Affirmed. City of Portland v. Huffman, 264 Or App ___ (2014).