Oregon Appellate Ct - Dec. 30, 2015

by: Abassos and Erin Roycroft • December 30, 2015 • no comments

Tampering With A Witness – The Defendant Must Have Believed the Victim Was Going to Be A Witness At The Time Threats Were Made

Threats are not Tampering With a Witness unless, at the time the threats are made, the person making the threats (1) believes the victim of the threats will be called to testify in an official proceeding, and (2) is trying to induce the person not to testify. Here, a wife gave information to the police which led to the execution of a search warrant against the defendant. The defendant threatened the husband that he would “burn [his] fucking house down” if “the shit talking [did] not stop.” Even if the defendant knew or suspected that the wife was cooperating with the investigation, it does not follow that he also believed the husband would be called as a witness in a proceeding against him. Thus, the state did not prove either that the defendant believed husband would be called to testify or that he was trying to induce him not to testify. Reversed. State v. Williams, 275 Or App 752 (2015).

Child Sex Abuse - Defendant Was Not Entitled to an In Camera Review of the Victim's Dependency Records

State v Wixom, 275 Or App 824 (2015).

Attenuation - The Purpose and Flagrancy Factor Is Objective, The Officer's Subjective Intent is Irrelevant

To determine whether an unlawful police action is attenuated from evidence found after the illegality, a 5 factor analysis is used:

• the temporal proximity between the unlawful police conduct and the discovery of the challenged evidence;
• the presence of mitigating circumstances;
• the presence of intervening circumstances;
• the purpose and flagrancy of the unlawful police conduct; and
• the nature, extent, and severity of the constitutional violation.”

Here, the officer stopped defendant for ducking into some bushes just off a sidewalk, found a warrant and during the arrest on the warrant found methamphetamine. The temporal proximity was "right at the same time". There were no mitigating circumstances. The arrest warrant was not an intervening circumstance because it was a direct consequence or objective of the unlawful detention, which was investigatory in nature. (See State v Benning and State v Bailey, overturning State v Dempster.) The constitutional violation was severe, not limited, because it was not incidental to the discovery of the warrant; rather it was the cause of it. Finally, "purpose and flagrancy" focuses on whether the the constitutional violation should have been obvious to the officers. The officer's subjective intent and motivations are irrelevant. Here, the officer saw something unusual and took a "shot in the dark to see what might turn up". Thus, the factor weighs in favor of suppression, as do all the other factors. State v Jones, 275 Or App 771 (2015).

Photo Radar - A Motion to Dismiss is an Appropriate Vehicle to Challenge the Conditions Precedent

At issue in this case is the rule that the state may not issue a citation for speeding based on photo radar unless “[t]he citation is mailed to the registered owner of the vehicle within six business days of the alleged violation.” ORS 810.439(1)(a)(E). Here, the trial court erred in not allowing defendant's pre-trial challenge to the conditions precedent for photo radar evidence. The proper time for such a challenge is pretrial and a motion to dismiss is a proper vehicle. See State v King, 199 Or App 278 (2015). Moreover, the motion to dismiss should have been granted because the only evidence of the mailed citation was a document from the company that purportedly mailed it. The document was inadmissible hearsay without a custodian of records from the company. Evidentiary rules are required at a motion to dismiss based on a challenge to a condition precedent because such a motion is not one of the specifically enumerated exceptions in OEC 101. It is not an OEC 104 hearing on the admissibility of evidence because defendant's motion to dismiss did not challenge the admissibility of evidence. It challenged the citation itself. State v Daly, 275 Or App 1012 (2015).

A Concurrence Instruction Is Required When The State Has Advanced Both Accomplice and Principal Liability

Where the state has presented theories of guilt under both accomplice and principal liability, the defendant is entitled to a jury instruction requiring that the requisite number of jurors required for guilt agree on the theory of liability. Here, the defense failed to request such an instruction and the appellate court still reverses as plain error. The court finds that, after State v Phillips, the error was obvious and it was grave because defendant was sentenced to 70 months in prison and the evidence of defendant's principal liability was equivocal. State v Gaines, 275 Or App 736 (2015)

A Concurrence Instruction Is Not Required For Alternative Factual Means of Proving an Element of the Crime

In an Assault III case, the trial court did not err in failing to give an instruction requiring the jury to concur on the question of whether the crime was committed by (1) directly causing the injury with the aid of another or (2) causing the injury through conduct extensively intertwined with the injury. As opposed to accomplice vs principal liability, the jury need not concur on the particular facts or theory by which an element is proven. The jury need only agree that the element has been proven beyond a reasonable doubt. State v Thompson, 275 Or App 985 (2015).

Setover - Restraining Order Hearing - Abuse of Discretion to Deny both the Petitioner's Witness and a Setover on the Grounds of Judicial Economy

It was an abuse of discretion for the judge in a restraining order hearing to refuse to hear the petitioner's witness solely because the judge decided the hearing shouldn't go beyond 30 minutes. The judge needed either to let the witness testify on the day of the hearing or continue the hearing to allow the witness to testify.

Although we appreciate the demands of the trial court’s docket, there is no explanation in the record as to why, if other cases prevented the court from hearing petitioner’s sole witness that day, the case could not have been continued. At least on the record before us, a continuance for the purpose of hearing petitioner’s witness would have imposed a minimal burden on the court system while also ensuring that petitioner had a fundamentally fair opportunity to present his case. JD v Klapatch, 275 Or App 992 (2015).

Confrontation Clause - Right to Examine on Prior False Accusations - Sufficiency of Defendant's Proof of Falsity

Defendant did not sufficiently establish that a prior accusation was false (such that he had a confrontation right to cross-examine) where there was a California report in which police officers reported to a call from the complainant of domestic violence, did not arrest anyone, noted that "no fight occurred" and that there were no marks or injuries and took the complainant into custody on a mental health hold. This is so because the report did not preclude the possibility that an assault occurred that did not involve a fight or injuries. Ultimately, "the trial court did not err when it found itself not persuaded that defendant had demonstrated the falsity of the victim’s prior accusations." At issue in this case is the rule from State v LeClair, 83 Or App 121 (1986), that there is a confrontation right to cross-examine on a false accusation if (a) the prior statement was recanted (b) the defendant establishes that the prior statement was false or (c) presents some evidence that the statement was false that it passes a balancing test., State v Taylor, 275 Or App 962 (2015).

Vouching - An Officer's Description of an Interview With a Victim Not Such Obvious Vouching That It Was Plain Error

The following exchange between the DA and the Investigating Officer, talking about an interview with the victim, did not require the trial judge to sua sponte strike the testimony:

“Q. *** What was the purpose of those visits?

“A. We like to make—We like to talk to the witness again before the trial just to see, make sure they’re going to be able to—if they’re going to be able to come testify in a court, make sure they still remember, or if they have—if they decide—Let’s say that they were lying to us or they told us a fib, we like to find that out before we get to this point so we can—we don’t have to waste your time and the court’s time. And we talked to her on the Thursday of last week.

“Q. Okay. And if there had been any inconsistencies or any problems, wouldn’t those have needed to be reported to all parties?

“A. Yes.

“Q. And you did not write any such a report or *** note any such inconsistencies at any time?

“A. I did not.”

An officer is allowed to point out a lack of inconsistency in statements without it being vouching. This is particularly true because the officer was not presented as an expert or someone with special knowledge of when a sex abuse victim is telling the truth. J. Armstrong concurs to say that the testimony was not obviously vouching because the officer was describing his investigative process. J. Ortega concurs to describe why the testimony was, at most, "indirect vouching". J. Sercombe dissents on the ground that the testimony was plainly vouching in that it was "explicit testimony by a police officer about the truthfulness of the victim, whose credibility was identified by both parties to be a core issue in the case" State v Inman, 275 Or App 920 (2015)

Sentencing – A Probation Condition Is Not Overly Broad If It Is Reasonably Related to the Crime or the Needs of the Probationer

There is no least restrictive means test in Oregon when deciding whether a probation condition is overly broad. A condition need only be reasonably related to either the crime or the needs of the probationer for the protection of the public or reformation of the probationer. Here, the defendant’s use of the internet was integral to the commission of his crime. Defendant posed as a teenager on social media where he initiated and arranged a meeting with the minor who he later sexually abused. Thus, a near-total internet ban (with exceptions by permission of the P.O.) was both sufficiently related to the crime and the needs of the probation. State v. Gallo, 275 Or App 868 (2015).

Delinquency – Juvenile Courts Have Authority to Dismiss a Petition Pre-Adjudication, Even For the Purpose of Preventing Sex Offender Registry

Under ORS 419C.261, a juvenile court may dismiss or amend a petition alleging a sex offense as long as the court makes a written finding stating its reasons for doing so. The court is allowed to dismiss or amend the petition even if it is pre-adjudication and for the sole purpose of relieving the person from sex-offender registration. Here, the trial court found otherwise. However, the statute explicitly gives courts the authority to amend a petition at any time, and to dismiss the petition pre-adjudication, and never indicates that the authority to do so is limited in situations involving sex-offender registry. State v. L.M.W., 275 Or App 731 (2015).

Delinquency – Conditional Postponement of Sex Offense -

TQN

Dependency Jurisdiction – An Appeal of an Order Finding Jurisdiction Is Not Moot Just Because the Petition is Ultimately Dismissed

A jurisdictional finding may be appealed after a dependency petition has been dismissed so long as parents can prove that there are collateral consequences to the finding of jurisdiction, independent of the case. Here, parents suffered negative effects on their record with DHS, mother’s employment, and social stigma because of DHS involvement. These collateral consequences were significant enough to establish that the appeal was not moot. Dept. of Human Services v. A.H., 275 Or App 788 (2015).

Dependency Jurisdiction –Drug Use from Five Years Prior Is Not Sufficient to Establish Jurisdiction in a Dependency Case

Prior drug use does not support an inference of a current drug and alcohol problem sufficient to establish jurisdiction in a dependency case. Here, the only evidence supporting DHS’s allegation was for mother’s substance abuse problem five years prior. This prior substance abuse did not support the juvenile court’s jurisdictional finding of a current substance abuse problem. DHS v BKF Preservation - Hearsay Objection Is Not the Same as an Objection to Using the Hearsay as Basis of Opinion (i.e. Personal Knowledge)

An objection to a document as hearsay does not preserve the argument that the content of the document may not be used as the basis of a lay opinion. Here, defendant objected to an estimate from a body shop stating the cost of damage to a car. But later, the victim testified to the value of damage to the car based on the estimate. The problem though was not hearsay; it was that the witness did not have personal knowledge. OEC 602. The hearsay objection did not preserve the personal knowledge argument on appeal. State v Gaines, 275 Or App 783 (2015).

Parole - An Appeal of an Order Denying Parole Becomes Moot When the Appellant Is Released On Parole

Petitioner's appeal of his 2012 order denying parole on the basis of a severe emotional disturbance became moot when, in 2014, the parole board released petitioner on parole. The outcome of the appellate case, after release, would no longer have an effect on petitioner's rights. Miller v Board of Parole, 275 Or App 844 (2015).

Parole - Murder Review Hearing - Substantial Reasoning Supporting a Board Order Means Primarily Explicit Reasoning

"In 1990, petitioner was convicted of aggravated murder, ORS 163.095, and was sentenced to life imprisonment with a 30-year minimum term without the possibility of parole or work release and a 20-year minimum period before he could seek parole review." The parole board's determination not to convert defendant's sentence into a determinate one was supported by substantial reasoning because it's reasoning was explicit, connecting the facts found to the reasons for denial. That is all that is required. Also, "the legislature did not intend to impose a 60-day jurisdictional deadline for service on the board", and therefore, the request for an appeal was not late. Rivas-Valles v Board of Parole, 275 Or App 761 (2015).