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 Private Common Area Used By Lots of People, Even If It is Gated and Locked

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).

Prior Preservation Opinion is Modified As Too Harsh

An error is only preserved when the defendant requests the court take an action. Here, the court finds, on reconsideration, that it 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. Thus, the court deletes the following sentence:

"Because we cannot say that every reasonable judge would have understood defendant's statement as requesting that the judge visit the website in question, we reject defendant's contention that he adequately authenticated the document by making such a request."

The court substitutes the following sentences:

"Considered in context, defendant's assertions about the website did not reasonably put the state or the trial court on notice that he was asking the court to visit the website itself to verify the accuracy of the printout. Accordingly, defendant's contention that he adequately authenticated the document by making such a request is not preserved for appellate review."

State v. Durando, 264 Or App ___ (2014).

A Police Order that Limits Movement is Not a Per Se Show of Authority

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 holds 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. See State v Highly. Affirmed. State v. Cline, 264 Or App ___ (2014).

Felon in Possession of a Firearm - Merger - Going From Constructive to Actual Possession Is Not a Pause in Criminal Conduct

Where a felon goes from constructive to actual possession of firearms there is not a break in possession that would block merger. Here, a convicted felon was charged with four counts of felon in possession of a firearm 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 all of the convictions was appropriate because constructive possession of all four firearms occurred when the defendant gained access to the gun safe and was thereafter a continuous violation with no “pause” in the criminal conduct. Reversed and remanded to merge convictions. State v. O’Dell, 264 Or App ___ (2014).

Issue Preclusion – Must Be Asserted Before the Issue Is Relitigated

Defendant must assert the doctrine of issue preclusion before the issue is relitigated. Here, defendant was found not guilty, at a Portland Parks exclusion hearing, of possessing alcohol in a park. At a circuit court trial on the same offense, defendant presented the doctrine of issue preclusion at the conclusion of the 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).