Oregon Appellate Ct - July 22, 2015
by: Abassos, Brook Reinhard, Matthew Watkins, Jonathan Heritage, Joseph Hampton, Robert Taylor, Sean McGuire, Kit Taylor and April Yates • July 22, 2015 • no comments
Search and Seizure – A Person Has a Protected Privacy Interest in the Private Entry Road to a House If A Reasonable Person Would Feel Excluded
Test: When a police officer enters private property to effectuate a search or seizure, she violates Article 1, Section 9 if a reasonable person in her situation would not have believed that she could enter the area of the property in question without permission. Any reasonable suspicion of an officer is immaterial. Trial court declined to consider this test, and ruled instead that because the deputy had “some reasonable suspicion”, his following a driver down a private road into a fenced farm property with a “No Trespassing” sign was lawful. The appellate court remanded the case to the trial court to determine whether the state carried its burden of proving that a reasonable person would have believed that he or she could enter the private property without permission. State v. McKee, 272 Or App 372 (2015).
Prior Bad Acts – Traditional OEC 403 Balancing Remains Valid Despite Williams; Failure to Give Leistiko Jury Instruction Is Not Plain Error
Courts determining the admissibility of prior bad acts evidence may continue to apply the traditional OEC 403 balancing test because, although the Oregon Supreme Court decided in State v. Williams that the Due Process Clause of the Fourteenth Amendment requires such balancing, it did not decide whether balancing under due process would differ from traditional balancing. Here, the trial court did not err in its balancing where it properly considered the relevance, probative value, and risk of prejudice of the evidence; issued a limiting instruction; and did not admit the evidence “wholesale and indiscriminately.” Separately, if the defendant does not dispute the charged actions and does not request a Leistiko jury instruction, the court’s failure to give one sua sponte is not plain error. Remanded for resentencing on other grounds; otherwise affirmed. State v. Brown, 272 Or.App. 424 (2015).
Evidence - A Defendant is Entitled to Cross on Bias, Even When the Bias Relates to Otherwise Protected Juvenile Adjudications
A defendant is entitled to make an initial showing of a witness’s bias or interest. Only after the defense has made such a preliminary showing does the trial court have any discretion to exclude additional evidence of bias or interest. The trial court erred by preventing the defendant from cross-examining the witness regarding juvenile adjudications and the fact that she was currently in custody; such evidence could indicate that the witness had reasons to falsely testify or was vulnerable to pressure from the state. The Court of Appeals holds the trial court’s error requires reversal because it prevented the jury from hearing a qualitatively different reason to distrust the witness’ testimony. State v Nacoste, 272 Or App 460 (2015).
Preservation – Failure to give a Leistiko instruction is not plain error where it is not obvious why the state was admitting bad-acts evidence.
In this property crimes appeal, the Court concludes under a plain error analysis that defendant’s objections to bad-acts evidence relied on two unsettled arguments: 1) Whether a State v. Leistiko instruction is required to avoid the jury using evidence offered for proving intent before the state demonstrated relevance, and 2) That admitting prior bad-acts evidence without a Leistiko-style limiting instruction is always erroneous when other jury instructions or other evidence might also weigh upon the question of whether defendant committed the charged act. The Court analyzes State v. Williams and concludes that, because OEC 404(4) supersedes the OEC 404(3) exclusions of prior bad-acts evidence for criminal defendants, the questions pertinent to requiring a Leistiko instruction shift to involve OEC 403 balancing and other Due Process arguments under the state and federal constitutions. Determining when a Leistiko analysis is required under the Williams framework for OEC 404 is not a settled question. Because the question is not settled, defendant cannot rely on plain error or the subsequent developments in State v. Leistiko because his arguments at the trial court were categorically different and focused on whether the prior bad acts were similar, not whether they were relevant. State v Horner
Sentencing – Defendant has a right to be present for discretionary change to a sentence.
Where a change to a sentencing judgement is discretionary, rather than mandatory, it is error for that change to be made by only by written judgement. Defendant’s sentence was modified by a written judgement to deny earned time on each of his felony conviction for the first 144 months, but other language in the judgment appeared to deny earned time credit for the entirety of defendant’s 342 month sentence. Because the asserted error became apparent for the first time only after the written judgement modified the sentence, the Court of Appeals holds the defendant is able to raise the objection for the first time on appeal, and remanded the case for resentencing. State v Horner
Stalking Order – Where an Expressive Contact Does Not Objectively Communicate Intent to Harm, the Contact is Not a “Threat” and Thus Not a Qualifying Contact.
“Although respondent’s communications were unwanted and some were sexual in nature or expressed an intention to contact petitioner in person, they did not suggest that respondent would engage in unlawful or violent conduct.” Respondent had not been physically violent toward petitioner nor anyone else. The expressive contacts included text messages including, among others, one message that said respondent would stay at petitioner’s house until she returned, one message that he wanted to “[lie] naked with [her], and a decorative sign left at petitioner’s house. These expressions did not create an objectively reasonable “fear of imminent and serious personal violence” under State v. Rangle, 328 Or 294 (1999). S.R.J. v. King
TPR - Parent Must Be In Contact With the System to Excuse a Failure to Appear at a Termination Hearing
When a parent's rights are terminated for failure to appear at a termination hearing under ORS 419B.819(7), the parent may move to modify or set aside the judgment under ORS 419B.923(1)(b) based on excusable neglect. Excusable neglect is "a parent's reasonable, good faith mistake as to the time or place of the dependency proceeding." It does not include a situation where the parent has lost contact with DHS and the defense attorney. In the case at hand, the mother was aware of the date of the hearing for approximately four and a half months before the hearing. She left the state but did not inform her attorney or DHS as to her location or contact information until she contacted the court, her attorney, and DHS via letter ten days before the hearing. The letter gave only an address in WA where she could be reached. The attorney wrote her, informing her that she needed to contact him immediately, and she did not respond. Thus, despite her letter, mother did not have sufficient contact with DHS, the court or her attorney to establish a reasonable, good faith mistake. DHS v. K.M.J., 272 Or App 506 (2015).
TPR – Terminating the Rights of an “Unfit” Parent is Not Necessarily “In the Best Interest of the Child.”
Factors to apply in the required “best interest of the child” analysis that may weigh against terminating parental rights—even when the parent is found to be “unfit”—include: the child’s strong attachment to the parent, a positive and nurturing relationship between parent and child, and a risk of extended mourning that would hinder the child’s attachment with a new family. Here, despite the court’s finding that the parent was “unfit” (importantly there was no abuse), there was not clear and convincing evidence that terminating parental rights was “in the best interest of the child” based on the above-mentioned factors. Dept. of Human Services v. M.P.-P., 272 Or App 502 (2015).
TPR – Allegations in a Termination Petition That Go Beyond the Scope of the Original Basis for Jurisdiction Do Not Deprive Father of Notice Where Original Allegations Sufficient for Termination
In this case, where Father contended that DHS had deprived him of constitutionally adequate notice at his termination of parental rights hearing, the Court finds five of the allegations alleged in the termination petition were "materially indistinguishable" from those used by the court to establish initial jurisdiction, and therefore affirmed the trial court without reaching the merits of Father's appeal. Father had argued the grounds for termination were different than those in the initial jurisdiction petition, citing holdings in DHS v. GE, 243 Or App 471 (2011), DHS v. NMS, 246 Or App 284 (2011) and DHS v ARS, 256 Or App 653 (2013). But the Court, analyzing the case de novo, finds that DHS proved the original five allegations by clear and convincing evidence, and that they are sufficient on their own to terminate Father's parental rights. Dept. of Human Services v. J.C.H., 272 Or App 413 (2015)
Parole Hearing – Board of Parole May Place Limits on Who Can Accompany an Inmate at a Hearing
On its face and consistent with legislative intent, ORS 144.123 gives the Board of Parole statutory authority to “place limits on people [an] inmate may select to attend a board hearing” as set forth in OAR 255-030-0025 and OAR 255-030-0026. Here, defendant contends that an inmate has a “right” to bring any person of his choice to such a hearing. The Court disagrees and states that the “inmate’s choice must be in compliance with and to the extent authorized by the administrative rules.” Furthermore, defendant contends that the rule was not “promulgated jointly” by the Board of Parole and the Department of Corrections as required by the statute because each agency created its own rule at a separate time. The Court disagrees, finding that the term “rule promulgated jointly” is an “inexact term” and the rule must only recognize “that both agencies have an interest in regulating attendance at board hearings…and ensur[e] that those regulations set consistent criteria for attendees.” Smith v. Board of Parole, 272 Or App 493 (2015).
