Oregon Appellate Ct. - Feb. 11, 2015
by: Frangieringer and Abassos • February 11, 2015 • no comments
Search & Seizure – No Expectation of Privacy in Structure Erected on Sidewalks
A person has no reasonable expectation of privacy “in a temporary shelter erected on public space unless the governmental entity controlling the space has either authorized the structure or, over a period of time acquiesced to the structure’s existence.” Here, because the defendant’s tarp shelter violated a city ordinance by encroaching two feet onto a public sidewalk and he had been told to remove the structure, the defendant had no protected privacy interest in the shelter when a week after he was told to remove it, officers lifted the tarp and saw the defendant with a meth pipe. State v. Tegland, 269 Or App 1 (2015).
Restitution – Goods Stolen From Retail Space are Valued at Retail Prices
To determine the market value of a stolen item for the purpose of restitution, a court looks at the time and place of the theft. Here, the defendant stole fifteen pairs of jeans from Macy’s. Because the “jeans were stolen from shelves in the retail space, where they were available to customers for sale,” the market value of the jeans is their retail value, not the wholesale value. Thus, instead of being required to pay $539.70 in restitution, the wholesale value, the defendant had to pay $1,020 in restitution, the retail value. State v. Islam, 269 Or App 22 (2015).
Indictment – Move to Elect What Conduct the State Wants to Prove at Trial in Generalized Indictment
Demurrer on a generalized indictment is not sufficient for a court to dismiss the indictment. Rather, it is the defendant’s burden to move, pre-trial, for the state to elect what specific acts it is seeking to prove at trial.
Here, a grand jury returned an indictment for four counts of Sex Abuse I and four counts of Sodomy following the state’s presentation to the grand jury of more than eight instances of sexual misconduct. None of the counts specified a time or place, but made general allegations of misconduct “on or between September 1, 2006 and October 1, 2008.” The defendant demurred, arguing that the indictment failed to provide notice of the charges against him and failed to inform the defendant whether the counts returned were the same counts that the grand jury indicted him on. The trial court denied the demurrer. At the conclusion of its trial-in-chief, the state elected specific criminal acts and the indictment was amended to include “a generalized description of the type of sexual conduct and a location where it occurred.”
The COA upholds the denial of the demurrer on two grounds. First, the defendant failed to move, pre-trial, under State v. Hales for the state to elect what specific acts they would prove at trial. Second, State v. Wimber indicates that under Article VII, section 5, when an indictment is returned that alleges fewer instances of criminal acts than presented by the state to the grand jury, courts assume that the indictment includes “the criminal acts that the victim described at trial and that the state previously had presented to the grand jury”; so long as no “new or different theory, element, or crime” is added to the indictment. Here, the amendments to the indictment were not substantive, but in form only( i.e. the amendments did not alter the defense strategy). Thus, under those two grounds, no error in trial court's denial of the demurrer and a subsequent MJOA on the same grounds. State v. Antoine, 269 Or App 66 (2015).
Unavailability of a Witness – Statements Admissible When the State Acts in Good Faith to Secure Presence
The state makes reasonable good faith efforts to secure presence of an unavailable declarant when they 1) attempted to contact the out-of-state declarant several times by phone and mail, 2) tried to serve a subpoena on the declarant, 3) arranged accommodation for the declarant, and 4) tried to contact the declarant’s family about her whereabouts. Here, the complainant-declarant did not show up at trial. Her statements were admitted under OEC 804(3)(c) because the state had tried to contact complainant several times by phone and mail, then tried to subpoena complainant at her last known address, and finally spoke to complainant several weeks before trial, arranging hotel accommodations for her. Under the totality of the circumstances, the state had made a good faith effort to secure complainant’s presence. Admitting her statements did not violate Article I, section 11 of the Oregon Constitution. State v. Starr, 269 Or App 97 (2015).
Confrontation – Admission is Harmless if Statement is Repetitive of Non-Testimonial Statement
Statements taken by an officer in order to terminate an ongoing emergency are not testimonial. Furthermore, statements given to another officer after the emergency has dissipated are testimonial, but harmless if they only provide repetitive detail or details not relevant to the charge. Here, the complainant told the first officer to arrive on the scene that “her boyfriend beat her up.” Five minutes later, when another officer arrived and asked her what happened, the complainant stated that the defendant “pushed her and she fell against the cement and hit her face on a — a curbing . . .” Although the second statement was testimonial, because it repeated facts established by the prior non-testimonial statement, it was harmless beyond a reasonable doubt. State v. Starr, 269 Or App 97 (2015).
Single Subject Rule – BM 73 Meets Single Subject Rule of Oregon Constitution
A ballot measure meets the single-subject requirement of Article IV of the Oregon Constitution when it identifies 1) the precise sphere of regulation, 2) the targeted persons, and 3) the intended outcome. Here, Ballot Measure 73 “which create[s] enhanced penalties for some repeat sex offenders and intoxicated drivers” met these requirements. The sphere of regulation is the criminal justice system. The targeted people are repeat offenders. And the intended outcome is enhanced punishments. As such, Ballot Measure 73 does not violate the single subject rule. State v. Mercer, 269 Or App 135 (2015).
