Oregon Appellate Ct - Oct. 8, 2014
by: Frangieringer and Abassos • October 8, 2014 • no comments
Kidnapping – Isolating Movement In Same Building Satisfies Asportation Element
Movement of a person from one area of a building to another meets the asportation element of kidnapping so long as the movement was done to keep the complainant under control and isolated. Here, defendant entered complainant’s apartment and dragged her from the front door to the top of the stairs. Because the intention was to isolate the complainant from the windows located by the front door, where she could have potentially alerted her neighbors, the movement, although within the same building, was done to further isolate and control the complainant, thus satisfying the asportation element for kidnapping. State v. Washington, 266 Or App ___ (2014).
Interstate Detainers – No Unreasonable Delay When Caused by Transfer Process Itself
A delay of nearly a year between the “lodging and execution of” an interstate detainer does not violate ORS 131.135 or defendant’s speedy trial rights when the state is prompt in trying to secure defendant’s return to Oregon. Here, a detainer was filed against defendant, incarcerated in Tennessee, in April 2009, pursuant to the interstate agreement on detainers (IAD). Subsequently, Oregon decided not to pursue transfer through the IAD when the defendant’s Tennessee sentence would expire before his return to Oregon through the IAD process. Defendant was transported back to Oregon and the warrant was executed on April 16, 2010. Because the delay between the lodging and execution of the detainer was due to the length of time required to return the defendant back to Oregon, it was not unreasonable. State v. Washington, 266 Or App ___ (2014).
Plain Error – Not Plain Error To Find That Cigarette Burn Could Result in Serious Injury
It is not plain error to find that a burn from the butt of a cigarette could cause “serious and protracted” disfigurement when the only evidence presented by the government was that the burn left a blister and a scar several months after the incident. Because it was not “obvious” that serious injury could not have resulted from the burn, the trial court was not in error to enter a conviction for second-degree assault. State v. Campbell, 266 Or App ___ (2014).
Child Custody - Child's Injuries While In Father's Care Sufficient for DHS Jurisdiction
Evidence supports DHS taking jurisdiction over child where there was evidence that 1) child broke his femur while in father’s care, 2) child suffered no injuries during three month long absence of father, 3) within a week of father’s return child suffered traumatic head injuries, and 4) mother is unwilling to accept medical evidence of the source of child’s injuries. Furthermore, no substantial question of inadequate assistance of counsel where parents’ lawyers failed to call expert witness where it was not clear what testimony that expert would have provided. Here, all that was provided was a letter indicating potential investigatory avenues, but did not include potential testimony. As such, there was no substantial question whether parents’ lawyers performed inadequately. DHS v. H.H., 266 Or App ___ (2014).
Searches - Defendant's Lack Privacy In Digital Copy of Texts Sent To Third Party's Phone
Police viewing a digital copy of a text sent to a third party’s phone by defendant is not a search under the Oregon or Federal constitutions. Here, officers were searching a stolen vehicle when a phone in the vehicle received a text message. Officers flipped open the phone and viewed the text message, sent by defendant inquiring into whether someone wanted to buy $30 of meth. Because defendant lost all ability to control who viewed the text message once it was sent to the third person’s phone, defendant had no protected privacy interest in the digital copy of the message stored on the third party’s phone. State v. Carle, 266 Or App ___ (2014).
Seizure - Approaching A Car and Asking For ID and Then Consent to Search is Not a Stop
Defendant is not stopped where 1) there is no indication that the officer was investigating any crime or potential probation violation, 2) there was no retention of identification, 3) no statements by the officer indicated that defendant would only be free to leave after the officer’s investigation concluded, 4) no pending warrant check was conducted, and 5) the officer’s demeanor was not coercive. Here, an officer approached a car after seeing it move a short distance in a parking lot and then park again. The officer asked defendant for ID and retained it for about 30 seconds. Noticing a knife in defendant’s pocket, the officer asked to search defendant and defendant consented. During the pat down, the officer told defendant that he was not under arrest and was free to leave. During the search, the officer recovered a pipe that smelled of marijuana, which led to a consent search of defendant’s car and arrest for delivery of marijuana. Because there was nothing to indicate that the officer “intentionally and significantly restricted, interfered with, or otherwise deprived the individual of his or her liberty,” the defendant was never unlawfully stopped. State v. Canfield, 266 Or App ___ (2014).
Severance - Not Required Where State's Examination of Defendant Is Limited To Case Defendant Testifies On
Cases do not require severance where the defendant wishes to testify in one of the joined cases, but not in the other when the cases are “separate enough” that a jury could make a determination in one case and not be confused by the conduct in another case. Here, the state joined two cases of first-degree sodomy that took place at two different times and against two different complainants. Because the charges arose from different times and concerned different people, any potential prejudice could be mitigated through jury instructions, as well as by limiting the state’s cross examination of defendant if defendant chose to testify in one case, but not in the other. State v. Gensler, 266 Or App ___ (2014).
Jury Instructions - Don't Need to Give Leistiko Instruction Where State Is Not Associating Defendants' Conduct
Not plain error for trial court to not give Leistiko jury instruction: that “the jury must be instructed that it cannot consider the evidence of other crimes, wrongs, or acts unless it finds that the defendant committed the charged act.” Here, because the Supreme Court has not applied Leistiko to situations “where the state ha[s] not argued that the evidence pertaining to one victim was admissible to prove the charges pertaining to any other victim”; it was not plain error to not give Leistiko instruction where state was not relying on evidence of defendant’s conduct involving one complainant to prove the charges involving the other complainant. State v. Gensler, 266 Or App ___ (2014).
Attorneys Fees - Court May Impose If Circumstances Show Potential Of Paying In The Future
Court may impose attorney fees where the court makes a nonspeculative inference that defendant can pay attorney fees in the future. Here, trial court’s findings, that defendant could pay $1,300 in attorney fees in each case following defendant’s sentence of 175 months, were not speculative when defendant had earned his GED, attended college, taken college courses while imprisoned in another state, and had family members who had helped defendant find a job when he returned to Oregon. State v. Gensler, 266 Or App ___ (2014).
Searches - Police Do Not Have Implied Consent To Enter Backyard Without A Warrant
For police to have implied consent to enter onto defendant’s curtilage without a warrant, the state must show that an objective visitor “looking at the physical layout of the living units and the residents’ use of the area” would have concluded that they were impliedly invited to contact defendant at some other place on the curtilage besides the front door. Here, officers did not have implied consent to enter a backyard even though they subjectively knew that defendant used a door in the backyard as his front door. Because there was nothing that indicated that an objective visitor would feel invited to contact defendant at the backyard/basement door, the police did not have implied consent to enter the backyard. State v. Coffman, 266 Or App ___ (2014).
