Oregon Appellate Ct - Oct. 14, 2015

by: Abassos, Alarson and Cmaloney • October 14, 2015 • no comments

Encouraging Child Sex Abuse II - Sexually Suggestive Nature of Photos Sufficient to Prove Intent to Arouse

The sexually suggestive nature of photos is enough to prove, for the purposes of Encouraging Child Sex Abuse II, that photos were taken with the intent of arousing the sexual desire of people who view them. Direct evidence about the circumstances in which the photos were taken is not required. Here, the children in the photos were in awkward and sexually suggestive positions that a child would be unlikely to naturally adopt. Furthermore, the children were wearing tight-fitting underwear that barely covered their genitals and were the sole subjects of the photos. Those facts alone can support a non-speculative inference by a factfinder that the photos were taken with the intention of arousing the sexual desire of those who view the photos. State v Mross, 274 Or App 302 (2015).

Reasonable Suspicion - PCS - Defendant Nervous, On Probation, Furtive Movements, On Probation

The following facts are sufficient to constitute reasonable suspicion of a crime for the purposes of extending a traffic stop to a criminal investigation:

• defendant was driving in a high drug-activity area
• he left his car immediately after he was stopped for the traffic violation.
• he was nervous, visibly shaking, and would not maintain eye contact with he officer.
• defendant was on probation for possession of heroin.
• he would not keep his hand on the steering wheel when requested by the officer and
• he repeatedly made furtive movements towards his sweatshirt pocket.

Although individually none of the factors in this case would give rise to a reasonable suspicion that defendant possessed a controlled substance, collectively they do. Therefore, the extension of the traffic stop was lawful. State v Huffman, 274 Or App 308 (2015).

Attorney fees – Burden on State to Prove Ability to Pay

Here, the court imposed $2400 of attorney fees based on the presumption that the defendant could perform minimum wage work once released from incarceration. The only evidence that was presented was that the defendant had housing that provided food and clothing. As this evidence had no bearing on the defendant’s ability to work or pay the fees, the court impermissibly shifted the burden on to the defendant, and it was an error to impose the fees. State v. Zepeda 274 Or App 401 (2015)

Endangering Welfare of Minor – Evidence of Minor’s Presence Necessary

A defendant endangers the welfare of a minor by “affirmatively making it possible for [her children] to enter or remain in a place where unlawful drug activity [was] taking place.” Here, defendant was convicted of endangering the welfare of minor when she admitted to using and selling drugs in her home two days in a row. However, while defendant had custody of her kids, no evidence was presented that the kids were present while the defendant used or sold drugs. Furthermore, the court refuses to infer that because defendant used drugs on two consecutive days, those facts are sufficient to establish that she possessed drugs in her house in between uses. As such, the evidence was insufficient. Reversed. State v. Kelly 274 Or App 363 (2015)

Probable Cause – Furtive Gestures and saying “Hide That” does not Amount to Probable Cause

Here, after receiving an anonymous phone call regarding defendant’s drug use, officers approached defendant’s home where the garage door was raised about 8 inches. The officers announced their presence and heard the defendant moving furtively in the garage while telling someone to “hide that”. The officers then raised the garage door, searched the home through consent and discovered incriminating evidence. Because (1) the caller provided no indicia of reliability; (2) telling someone to hide something does not mean that something is contraband; (3) and furtiveness alone does not amount to criminal activity, the officers did not have probable cause to open defendant’ garage door. As the constitutional violation was flagrant, investigative in purpose, and highly intrusive into defendant’s home, defendant’s consent to search was tainted by the misconduct. Reversed. State v. Kelly 274 Or App 363 (2015)

For Parole purposes, a Vulnerable Victim Need Only Be Vulnerable - The Vulnerability Need Not Have Been Exploited

• The parole board is entitled to re-determine the eligibility dates for parole after being directed by the Oregon Supreme Court to “conduct a hearing, using whatever procedures it deems appropriate, to set each prisoner’s release date according to the matrix in effect when he committed his crime”. The fact that the board had a hearing and called it a "prison term hearing" (normally only allowed once) did not change the fact that the board was following the direction of the Supreme Court. "The board's authority stemmed from the Supreme Court's remand instructions".
• A victim can be "vulnerable" for the purpose of the Parole Board's aggravating factor C solely due to being 74 years old. This is true, even though the victim would not vulnerable under the similar aggravating factor in the sentencing guidelines. To be a vulnerable victim for parole purposes, the vulnerability need not have been exploited.
• The parole board with only 3 of 5 members may apply two upward departure variations, assuming the decisions are unanimous.

Severy v Board of Parole and PPS, 274 Or App 330 (2015).

Preservation - Post-Conviction Relief - Requesting Remand for a New Trial Does Not Preserve the Remedy of a Delayed Direct Appeal

Where defendant requested a remedy of a new trial from the post-conviction court (due to his trial lawyer's failure to advise him of his appellate rights), he did not preserve the remedy of a delayed direct appeal. Because he never requested a delayed appeal or mentioned that he was entitled to one, he did not preserve such a claim for review. Lambert v Premo, 274 Or App 380 (2015).