Oregon Appellate Ct - Aug. 12, 2015
by: Abassos and Sean McGuire • August 14, 2015 • no comments
Assault III – Direct Physical Contact Between Weapon And Victim Is Not Required
Direct physical contact between a weapon and the victim is not necessary to sustain a charge of Assault III. Here, defendant made a left turn in front of an oncoming motorcycle, “causing the victim to brake hard before having to ‘dump’ his motorcycle in order to avoid a collision with defendant.” The motorcycle slid and collided with defendant’s car, which sped off, and the victim suffered serious physical injuries. The court here holds that, because the victim’s injuries “resulted from defendant’s reckless operation of the car” and because the defendant’s actions “rendered the car capable of causing serious injury,” the injuries were indeed caused “by means of” the defendant’s car even though the car never physically touched the victim. Affirmed State v. Blan, 272 Or.App. 721 (2015).
Search and Seizure – Officers’ Request for Identification Does Not Constitute a Seizure
Under the recent Supreme Court cases of Backstrand, Highley, and Anderson, defendant here was not unlawfully seized when officers asked her for identification, because under the totality of the circumstances the officer’s behavior did not constitute a “show of authority.” The court notes that the officer “used a normal tone of voice and did not physically interfere with defendant or impede her movement,” and that his behavior was “nonconfrontational.” Affirmed. State v. Radtke, 272 Or.App. 702 (2015).
Search and Seizure – Removal Of Small Object From Defendant’s Pocket Without Consent Does Not Fall Within Officer-Safety Exception
The officer’s warrantless, nonconsensual removal of a small object from defendant’s pocket following a patdown search was not justified by the officer-safety exception because it was not objectively reasonable to believe that the object posed a threat to the officer. Permission to open the object is thus invalid because it was given following an illegal search, and the trial court erred in denying defendant’s motion to suppress. Here, the officer felt a hard, cylindrical object which he thought might be a bullet (but turned out to be a small metal container). The court finds that the possibility that the defendant would use the hard object to cause the officer serious injury was too remote to justify the seizure of the item: that it was a bullet, that defendant had a gun, that defendant would be able to acquire and load the gun with the bullet, etc.) Reversed and remanded. State v. Davenport, 272 Or.App. 725 (2015).
Evidence – Victim’s Prior Attack On Defendant Was Relevant To Show Bias And Was Improperly Excluded
A complaining witness’s prior physical attack on defendant was relevant to show “the existence and extent of [her] hostility toward defendant” and therefore was improperly excluded. This error was not harmless because, without this evidence, the jury “did not have an adequate opportunity to assess [the victim’s] credibility.” Reversed and remanded.State v. G.R.M., 272 Or.App. 737 (2015).
Search and Seizure – Passengers Are Not “Seized” When Driver Consents To Vehicle Search
A vehicle's passengers are not seized merely because officers ask the passengers to get out of a car after the driver has consented to its search. Thus, any permission a passenger subsequently gives to search property found inside the car is voluntary. Here, defendant, who was a passenger, had been told he was free to go during a traffic stop, but he elected to remain. When the driver of the car gave the officers permission to search it, the officers found a duffel bag belonging to defendant, who then gave them permission to look inside. The officers found a stolen computer in the bag. The evidence was properly admitted. Affirmed. State v. Leahey, 272 Or.App. 766 (2015)
Severance – A Complete Lack of Cross-Admissible Evidence Does Not Require Severance
Even where no evidence is cross-admissible, severance of multiple counts is not mandatory as long as the risk of prejudice resulting from the admission of the evidence is low. Where, as here, the defendant is charged with crimes “against different victims, in different locations, with distinct factual scenarios, that were separated by several months,” and where the “allegations pertinent to each charge [are] ‘sufficiently simple and distinct,’” the risk of prejudice by joinder is low and the trial court does not abuse its discretion if it denies a motion to sever. Affirmed.State v. Williams, 272 Or.App. 770 (2015).
A Count May Not Be Submitted to the Jury After the DA Concedes a Lack of Proof and the Court Grants an MJOA
Where the court grants an MJOA, the count may not also be submitted to the jury. Here, the state conceded at trial and on appeal that they had not proven, in a criminal mischief case, that defendant had intentionally caused $1000.00 in damage. Thus, the trial court granted an MJOA on the greater count and allowed a lesser count of Criminal Mischief II. "Confusingly", the greater count was submitted to the jury and the jury found the defendant guilty. The appellate court reverses the greater count but remands for entry of conviction on the lesser count because there was no question that defendant intentionally caused damage to the property (just not in the amount required for criminal mischief I.) State v Wiggins, 272 Or App 748 (2015).
Mandatory Fees & Assessments - ORS 153.663(1) Does Not Require The Imposition Of A Separate $60 Fine
Per curiam. The trial court misinterpreted ORS 153.663(1) when it imposed a $60 fine in addition to fines of $250 and $500 for each of two convictions. The statute merely directs that $60 of those fines be directed to the state; it does not require that a separate $60 fine be imposed. Portion of judgment requiring defendant to pay $60 for each conviction reversed; otherwise affirmed.State v. Lindemann, 272 Or.App. 780 (2015).
