Oregon Appellate Ct - Sept. 16, 2015
by: Abassos, Alarson and Cmaloney • September 16, 2015 • no comments
Animal Neglect – Caring for and Exercising Power over Animals Constitutes “Control”
For the purposes of Animal Neglect, a person has “control” over an animal if he or she has authority to guide, manage, direct, or restrain the animal. Here, defendant lived in a house with a couple who owned ten bulldogs. Defendant was charged with animal neglect after the neighbors observed him encouraging the dogs to fight and then broke them up by hitting the dogs with a hammer. He argued he didn't have control over the dogs since they weren't his dogs. However, since he lived in the home, cared for the dogs, was part of decision-making about the dogs, and exercised power over the dogs, the evidence sufficiently showed the defendant had “control” over the dogs. State v. Crosswhite 273 Or App 605 (2015).
Impossibility of Getting a Permit Is Irrelevant to Charge of Unlawful Water Pollution
A person may not alter the properties of water of the state without a permit from the Department of Environmental Quality (DEQ). The statute requires a permit entirely independent of the possibility of acquiring a permit. Here, defendant was charged with second-degree unlawful water pollution for using a suction dredge on a river without a permit. He argued that the charging instrument failed to state an offense because the DEQ lacked the authority to issue a permit for suction dredging and therefore he could not be penalized for failing to get a permit. The Court of Appeals holds that the trial court correctly denied the demurrer. The charging instrument was sufficient because it tracked the language of the statute. Even assuming the DEQ did not have the authority to issue a permit, it does not follow that suction dredging without a permit is therefore lawful. The statute prohibits engaging in unpermitted activities that have certain effects on the state’s water. The statute does not affirmatively require the state to issue a permit. State v Waters, 273 Or App 665 (2015).
Third-Degree Assault – “Extreme Indifference” Established by Intoxicated Driving Combined With Other Evidence of Defendant's Conduct
"Extreme indifference to the value of human life", for the purposes of Assault III, may be established using intoxication with other contextual information. Here, the trial court did not err in denying an MJOA where the defendant was highly intoxicated, driving at an excessive rate of speed and ignoring traffic conditions. The defendant also responded to a passenger’s concern about his rate of speed by accelerating and turning up the music. Additionally, he had previously taken a safety course that related to the hazards of drinking and driving. This evidence was sufficient to support a finding of extreme indifference to the value of human life. State v Alexander, 273 Or App 659 (2015).
Confession - Compelling Circumstances - 3 hours of Polygraph Questions and Accusatory Non-Custodial Interrogation Is Compelling
Defendant was in compelling circumstances where he voluntarily went to a private polygrapher working for the state and was subjected to a two hour polygraph and an hour of accusatory questioning that assumed his guilt and leverage the failed polygraph. First, defendant was not in a familiar or neutral setting. He was at a police-run polygraph test in an unfamiliar setting with official-looking equipment where he was video recorded the entire time. Second, the duration favors the conclusion of compelling circumstances because the 50 minutes of questioning were pressured and, additionally, preceded by 2 hours of polygraph questions and an initial police interview the day before. Third, and most important to the court, there was intense pressure put on defendant during the questioning. Both the polygrapher (a former police officer) and the officer repeatedly:
- "confronted defendant with unqualified assertions of his guilt, despite his repeated denials of wrongdoing. Presenting an unwinnable dilemma, [they] persisted in telling defendant that he should identify himself as either a pedophile or an 'opportunistic' individual. They said that they hoped he was just an 'opportunistic' individual who had made a 'one-time' error or 'mistake in judgment,' but they stressed that they would have to 'assume the worst' in the absence of his confession. Throughout the interview, [the officer] repeatedly leveraged the inadmissible polygraph results as dispositive evidence of defendant's guilt. The detective admonished defendant to tell him whether it was a 'one-time occurrence' or 'something that's gone on for years and years and years.' By so doing, [the officer] demonstrated a clear intent to build pressure on defendant to confess to the 'less-serious' criminal behavior."
While it appears that defendant did have the ability to end the encounter, the one factor in favor of the state doesn't outweigh the other three. Because defendant was in compelling circumstances and was not advised of his rights, his inculpatory statements should have been suppressed. State v Matthiesen, 273 Or App 641 (2015).
Confession -Voluntariness - No Threats, Promises or Inducements
The voluntariness of a confession depends on whether threats, promises, or inducements were made by the police to the defendant. Here, defendant was subjected to interrogation of substantial length in a hospital, and eventually confessed to shaking his baby and dropping the baby on the cement. The defendant’s confession was voluntary because: 1. The detectives interviewing defendant did not repeatedly state or suggest that the baby’s treatment would suffer in the absence of defendant’s confession; 2. The detectives did not appeal to the defendant’s vulnerabilities, such as family or religion; 3. The detectives repeatedly reminded the defendant of his Miranda warnings; and 4. The detectives did not induce defendant to confess by offering any sort of leniency. State v. Rodriguez-Moreno 273 Or App 627 (2015).
Restitution May Not Be Imposed In a Criminal Case Where It Results From Conduct While the Case is Pending
“Economic damages that can be awarded as restitution include reasonable expenses necessarily incurred by a victim to redress the harm caused to the victim by a defendant’s criminal conduct.” Here, the defendant was arrested for strangulation and was given a no-contact order, which he violated. The victim incurred costs for an attorney to enforce the no-contact order and to obtain a restraining order against the defendant. Because the victim’s costs were a result of conduct after the criminal event, they were not economic damages that the victim suffered as a result of the criminal conduct. Judge Egan dissents on the grounds that the court’s ruling conflicts with State v. Ramos, 267 Or App 164 (2014), which allowed restitution to an insurance company for private investigation. That case, as well as previous case law uses a “but-for” test for causation in restitution and Judge Egan argues that the Court fails to apply this test. Judge Flynn dissents as well, arguing the Court fails to apply the “but-for” causation test and that victims of domestic violence—as a matter of policy—should recover the attorney fees necessary to secure protection from contact by their abuser. State v. Gerhardt 273 Or App 592 (2015).
Proportionality - A Life Sentence For a Third Sexual Touching of a Child is Not Constitutionally Disproportionate For a 71-Year-Old Defendant With 100 Uncharged Victims
Defendant's life sentence for a third sexual touching of a child was not disproportionate because:
- (1) Sex abuse is an extremely serious crime and the record reflects that defendant's conduct "severely traumatized his 8-year-old victim, changing the course of her childhood in fundamental ways"
- (2) A life sentence for a 71 year old is not obviously more harsh than the 75 month mandatory minimum he would otherwise have received. In fact, the Measure 11 sentence "could be longer".
- (3) Defendant's uncharged criminal history, including more than 100 victims and a forcible rape of a 10-year-old victim confirms the proportionate nature of the life sentence.
State v Sokell, 273 Or App 654 (2015).
TPR – “Changed Circumstances” Is not a Valid Reason to Set Aside a TPR Judgment
A mother’s “changed circumstances” is not a valid reason to set aside a TPR judgment under ORS 419.923(1). The statute includes clerical mistake, excusable neglect, and newly discovered evidence in the nonexclusive list of reasons a court may set aside a TPR judgment. In this instance, Mother moved to set aside the TPR judgment because of her positive progress and changed circumstances, and was denied. Unsuccessful in finding a clear legislative intent as to whether any reason suffices to set aside the TPR judgment, or whether the reasons listed in the statute narrow a court’s ability to consider other reasons, the court applies the principle of ejusdem generis, which directs the court to identify a common characteristic among the listed examples. The court determines that (1) A non-enumerated reason to set aside the judgment should carry the common trait of the other three reasons - that the “judgment is defective in form or the result of an unfair proceeding” and (2) “Changed circumstances” does not have anything to do with whether the process was unfair or defective. Thus, Mother's TPR judgement cannot be set aside. Dept. of Human Services v. K. W. 273 Or App 611 (2015).
