Oregon Appellate Ct - June 17, 2015

by: Abassos, April Yates, Tyler Williams and Sean McGuire • June 17, 2015 • no comments

Proportionality - Public Indecency Alone May Not Form the Basis for a Sex Offender Life Sentence

A life sentence for repeat public indecencies is constitutionally disproportionate:

• ORS 137.719(1) (sex offender life sentences) contains a wide range of conduct in terms of what reasonable people would consider harmful.
• "Even the most grave multiple incidents of public masturbation, without any evidence of other sexual offenses or physical force or compulsion, pale in comparison with other combinations of incidents that are subject to a true life sentence.”
• "the sentence for much more serious crimes by a recidivist offender is less than the true life sentence for defendant.”
• Defendant had a long criminal history, but no violence or sexual offenses other than public indecency.

The facts of this case were at the egregious end of public indecency:

"Bluntly, defendant has demonstrated the following pattern: masturbate in public, get locked up (and continue to masturbate in front of others), get released, and—within days—masturbate in public again. Defendant is not remorseful; in fact, it seems that he may not even understand— despite having been convicted several times—that public masturbation is illegal. Given that pattern and state of mind, it is reasonable to expect that, if defendant is released, he will reoffend. As his own lawyer puts it, defendant is “an incorrigible masturbator.”

Reversed and remanded for resentencing. State v. Davidson, 271 Or App 719 (2015)

DUII-Agreeing to Take a Breath Test After Being Read the Implied Consent Warnings Counts as Voluntary Consent, Absent an Oppressive Atmosphere.

Agreeing to a warrantless breath test after being read the implied consent warnings indicates the voluntariness of consent unless there are some signs of police exploitation or threats. The court of appeals, reviewing the trial court’s decision to suppress defendant’s breath test evidence, finds that, “[a]lthough defendant was under a DUII investigation and her consent to the breath test was obtained at the police department, there is no evidence that physical force was used or threatened, that weapons were displayed, or that the atmosphere surrounding defendant’s consent was antagonistic or oppressive.” The consent was therefore voluntary, and “Article I, section 9, does not require suppression of the breath test evidence.” Reversed and remanded. State v. Lopez-Lopez 271 Or App 817 (2015)

DUII -“Retrograde Extrapolation” Using Widmark Is Scientifically Valid

"Retrograde extrapolation" using the Widmark formula is scientifically valid evidence under Brown/O’Key for the purposes of OEC 702:

• It is generally accepted in the field
• It is admitted through an officer that has been trained to administer and record the test
• It's used in other alcohol-related litigation and other disciplines, like pharmacology
• It's methodology has been widely tested outside of the courtroom
• Using a range for elimination rates serves as a check against a high rate of error
• There are many studies on elimination, absorption and the Widmark formula
• It's not novel - the first studies were published in 1932
• There's a relatively low degree of subjectivity and a high degree of transparency in the formula

Affirmed. State v. Trujillo, 271 Or App 785 (2015)

Search & Seizure – Consent to Search a Car Extends to a Closed Backpack in the Car

Defendant’s general consent to search his car implicitly includes consent to search a closed backpack inside the car, unless the defendant says otherwise. Here, following a traffic stop, defendant consented to a police officer’s request to search his car after the officer had told defendant he was “free to go.” Because the officer did not state that he was looking for anything specific, the scope of the request was not limited and therefore searching the backpack was within the scope of the defendant’s consent. Defendant’s motion to suppress evidence in the backpack was properly denied. Affirmed. State v. Lamoreux, 271 Or App 757 (2015)

Stops - Grabbing Defendant's Boat and Requesting Fishing Tags Was a Show of Authority

A trooper’s grabbing hold of defendant’s boat and requesting to see defendant’s halibut tags was a show of authority, given the trooper’s tone and the content of the request. While social norms allow for conversation and grabbing other’s boats while fishing, only law enforcement officers ask to inspect halibut tags. It was therefore clear that the trooper intended to restrict the defendant’s movement. Additionally, even if the officers had reason to stop the defendant for failing to release a protected species of fish unharmed, the unrelated request to inspect the defendant’s halibut tags was not made in the lull of the initial stop, and was therefore an unlawful extension. Affirmed. State v. Paskar 271 Or App 826

Merger - Attempted Rob I and UUW Don't Merge

A defendant can take the substantial step required for attempted first-degree robbery without being in possession of the deadly weapon he or she intends to use during the crime. Rather, it is enough that the defendant intends to possess a deadly weapon and takes measures to secure future possession. Here, defendant’s argument to merge an unlawful use of a weapon charge with attempted first-degree robbery fails because, unlike attempted first-degree robbery, UUW requires possession of a deadly weapon. State v. Rhee, 271 Or App 746 (2015).

PCR - A Judgment of Denial Must State the Basis of Denial

A judgment of denial in a PCR case must, for each claim, state whether the denial is procedural or merit-based and make the legal basis for denial of relief apparent. Here, the judge completely failed to address defendant's claims that (1) her confession was coerced and she did not receive adequate assistance of counsel and (2) her decision to waive jury trial was coerced by the judge. Reversed and Remanded. Myers v Brockamp, 271 Or App 716 (2015).