Oregon Appellate Ct - June 3, 2015

by: Abassos, Tyler Williams, April Yates and Kit Taylor • June 3, 2015 • no comments

Disorderly Conduct II - People In a House Who Know Each Other Are Not "The Public"

For the purposes of Disorderly Conduct, the public is the community in general, as opposed to private individuals. Here, a fight wholly contained within a mobile home did not affect the public. The four people inside the trailer were not the public because they were known to each other and in a private residence. The risk that someone outside the trailer would hear the fight would require at least some "information about the surrounding environment". Reversed. State v. Love 271 Or App 545

Interfering With A Peace Officer - An Order Is Lawful If It Is Lawful On Its Face

An order by a peace officer is lawful for the purposes of Interfering with a Peace Officer if it is lawful on its face. Here, defendant organized an environmental protest on city streets without obtaining the city-required permit. During the protest, an officer ordered defendant to move the protestors off the street out of safety concerns and in order to enforce the permitting process. Defendant argued that the officer would not have made the same order if he had obtained a permit and that because the permitting process was determined by the lower court to be unconstitutional, defendant had not disobeyed a lawful order. The court disagrees, and finds that “a rational factfinder could have found that [the officer] had the authority to instruct defendant to move off of the street, particularly in light of the safety concerns present ...” Therefore, the order was lawful on its face. State v Navickas, 271 Or App 447 (2015).

A DMV Order Dismissing Breath Test Suspension Is Relevant to Officer's Credibility at a DUII Trial

The trial judge at a suppression hearing should have admitted a DMV order dismissing the suspension for refusing a breath test where the order contained prior inconsistent statements from the officer. The order contained findings of an Administrative Law Judge and prior inconsistent statements that were probative of the credibility of the arresting officer. However, the court ultimately considers the error harmless because the inconsistent statements were introduced during cross examination. Applying the logic of State v. Davis, the court finds that the “DMV order would not have provided ‘qualitatively different’ evidence on that point.” State v. McRae 271 Or App 558 (2015)

Stalking Protective Orders - Subjective Alarm Requires Actual Alarm or Concern for One's Well-Being

A concerning incident does not contain the requisite "subjective alarm" to suffice for a stalking protective order unless the petitioner was actually coerced or alarmed and the incident caused reasonable apprehension for the personal safety of the petitioner or his family. Here, petitioner alleged that respondent parked near his work and watched him. But he testified at the hearing that the first time he was "concerned for his well-being" was a month later. Since petitioner wasn't concerned for his well-being as a result of the parking incident, he wasn't "alarmed" and the incident did not qualify as one of the two required contacts within 2 years of the petition. Reversed. K.M.V. v. Williams, 271 Or App 466 (2015)

PCR - Late Filing - Bad Legal Advice and Incarceration Don't Suffice For the Escape Clause

The court rejects both of petitioner's arguments to allow for a late filing for post-conviction relief where the grounds for relief "could not reasonably have been raised in a timely-filed petition." Petitioner's argument that it was late because an attorney told him he had no grounds for relief is foreclosed by Brown, wherein a trial lawyer’s “active misrepresentation” about the timeline for seeking post-conviction relief did not excuse untimely filing under the escape clause. His argument that he was incarcerated without access to a notary was undercut by the fact that (1) the statute doesn't require that the paperwork be notarized and (2) he was able to and did receive and work on the PCR petition from prison. Barbera v. State of Oregon, 271 Or App 525 (2015)

Attorney Fees Require Ability to Pay

Per Curiam reversal: A court may not sentence a defendant to pay attorney fees unless the defendant is or may be able to pay them. ORS 161.665(4) State v. Velazquez-Vallejo, 271 Or App 582 (2015)

Consent and Exploitation - Cases on Reconsideration After Unger/Musser/Lorenzo Should Be Remanded for Record to Develop

When the appellate court is reconsidering a case involving consent during an illegal stop in our post Unger / Musser/[ http://scholar.google.com/scholar_case?case=6511160357979449514&q=related:5hIKKmMM7tIJ:scholar.google.com/&hl=en&as_sdt=6,38 Lorenzo] world, the court will remand it so that the record can develop in accordance with the new framework. State v. Heater 271 Or App 538