Oregon Appellate Ct - Dec 23, 2015
by: Alisa Larson-Xu and Abassos • December 23, 2015 • no comments
Prior Bad Acts -- Required Balancing Test Under 403 Must be Preserved
Here, defendant had two trials involving the same victim: one for menacing and harassment and one for UUV, criminal mischief, and burglary after defendant took the victim’s car without her permission. In both trials, the state sought to introduce evidence of defendant’s prior bad acts against the victime—pulling the her hair, kicking her, and threatening to kill her. The court admitted the evidence under OEC 404(4) for relevance and under OEC 404(3) to show intent. In both cases, the defendant did not request a limiting instruction for the evidence or object to the court’s failure to deliver one. Because defendant did not preserve the error that the court did not properly engage in OEC 403 balancing, and the court made specific findings that balanced the costs of the evidence against its benefits, it was not plain error to admit the evidence. State v. Corbin 275 Or App 609 (2015)
Search & Seizure – Blood Draw – Evidence of Difficulty Obtaining Warrant Justifies Exigent Circumstances
Where the state presents evidence that obtaining a search warrant to draw blood would lead to a significant loss of evidence, an officer may draw blood under exigent circumstances. Here, defendant was lawfully seized for probable cause of driving under the influence. Defendant was taken to a hospital where he was subjected to a blood test. The officer testified that the normal process to obtain a warrant at 2 am would have taken approximately two and a half hours, and during the whole process the officer was without much “down time” where the officer could have obtained the warrant. Accordingly, the warrantless blood draw was justified. State v. Perryman 275 Or App 631 (2015)
Reasonable Suspicion - Marijuana Odor Insuffucient for RS
Here, after stopping defendant’s vehicle for a traffic infraction, in which defendant was a passenger, the officer smelled marijuana from the car. The officer detained the defendant to wait for a drug dog, and defendant made incriminating statements during that detention. The trial court erroneously found that the emanating odor of marijuana sufficient to give rise to reasonable suspicion of drug activity. The trial court also did not comment on the other factors that were presented as evidence (i.e., nervousness, sores of the driver, air fresheners) that could have supplemented the reasonable suspicion analysis. The court remands for further proceedings to find out what really happened and whether the totality of circumstances justified defendant’s detention while waiting for a drug dog. State v. Martinez 275 Or App 631 (2015)
