Oregon Appellate Ct - May 4th, 2016

by: Aalvarez and Cmaloney • May 5, 2016 • no comments

Luring a Minor – “Explicit Verbal Description”

In a prosecution for Luring a Minor, the term “explicit verbal description * * * of sexual conduct” means the “explicit identification of sexual conduct when that identification is intended to bring a graphic sexual image to the mind of the recipient.”

Here, the Court of Appeals affirms the defendant’s conviction for Luring a Minor by concluding that the trial court did not err in finding that a reasonable fact finder could find that the defendant used an “explicit verbal description * * * of sexual conduct,” when he texted the victim “I really wanna bang [you].” The court disagreed with the defendant’s contention that the message, although explicit, was not a description for the purposes of the Luring of a Minor statute. According to the Court of Appeals, a “description” can be accomplished “with few or many words, as long as the words chosen are intended to bring a graphic sexual image to the mind of the recipient, that is, the words themselves are not necessarily required to be graphic.” In this case, a reasonable fact finder could find that the defendant intended to bring a graphic sexual image in the mind of the victim by communicating to her the sexual act he wanted to perform with her (i.e. “I want to bang you.”)

Judge Armstrong dissents, concluding that the statute only reaches communications that “convey to minors certain types of sexually explicit information for the purpose of inducing them to sexual conduct.” In analyzing the context and legislative history of the statute, passed to prevent the grooming of victim’s in child sex abuse cases, Judge Armstrong explained that:

"The legislature chose the terms that it did to identify the communicative materials that it intended to prevent people from giving to children to induce them to engage in sexual conduct. Contrary to the majority’s view, the text message that defendant sent to the victim to induce her to engage in sexual conduct did not contain an explicit verbal description of sexual conduct." State v. King, 278 Or. App. 60 (2016)

Resentencing a Defendant to a Longer Sentence After a Successful Appeal

The trial court did not err in resentencing the defendant to a longer sentence than previously imposed after his successful appeal because the trial court followed the procedure for doing so set forth in Partain. First, the trial court stated its reasons for doing so on the record. Second, the trial court’s sentencing was based on facts of which the initial sentencing court was unaware. The resentencing court was able to hear testimony from some of defendant’s victims about the long-term effects the crime had on them and also learned about evidence of the defendant’s misconduct while incarcerated. Lastly, the court explained that the newly heard evidence caused it to think about the case “a little bit differently” from the original sentencing judge and to think the sentence was warranted for non-vindictive reasons. “In terms of procedure, that is all that Partain requires[.]”278 Or. App. 91 (2016)

Modification of a Felony Sentence on Remand

ORS 138.222(5)(b) authorized a resentencing court to modify a defendant’s sentence on certain felony convictions even though the defendant had already completed the previously imposed sentences for those charges. Here, the defendant was originally convicted of nine offenses, including five counts of UUW and two counts of kidnapping, and sentenced to 250 months in prison. The defendant later successfully appealed his kidnapping convictions, and the Oregon Supreme Court reversed those convictions and remanded the case for resentencing on the seven remaining convictions. On remand, the trial court sentenced the defendant to 276 months in prison, in part, by imposing longer sentences on three of the UUW convictions and by ordering that those sentences run consecutively, even though the defendant had already completed the previously imposed sentences for UUW. The defendant appealed this additional 26-month sentence on the grounds that the resentencing court lacked the authority to modify his sentences on the UUW convictions. The Court of Appeals affirms the additional 26 months imposed during resentencing under ORS 138.222(5)(b). ORS 138.222(5)(b) gives the trial court unqualified authority to resentence a defendant on all convictions, even those convictions where the defendant’s sentence has already been executed, where the appellate court “in a case involving multiple counts of which at least one is a felony, reverses the judgment of conviction on any count and affirms other counts.” The defendant’s case met all of the requirements of ORS 138.222(5)(b). Thus, the resentencing court was not prohibited from modifying the sentences on the UUW convictions. 278 Or. App. 91 (2016)

PCR – Procedural Default – “Escape Clause”

ORS 138.550(3) bars successive petitions for post-conviction relief unless petitioner’s claims fall under the “escape clause,” which requires that the court find that the grounds for relief asserted in the new petition could not reasonably have been raised in the original or amended petition.

Here, the Court of Appeals upholds the post-conviction court’s ruling barring the defendant’s third petition for post-conviction relief because the defendant’s claim for relief could reasonably have been brought in an earlier petition. The defendant’s claim, mainly that the state violated Brady by withholding exculpatory evidence, could reasonably have been raised earlier because the defendant possessed, or had reasonable access to, information needed to raise the Brady claim during his first post-conviction proceeding. Evidence that the victim was a prostitute with a somewhat violent criminal history (evidence that was available to the police but had not been disclosed by the prosecution during discovery) was available and discovered by the defendant prior to his first petition for post-conviction relief. The defendant, therefore, possessed information that could have supported a post-conviction claim that the state committed a Brady violation by withholding potentially exculpatory information in his first petition for relief. Because he failed to raise a claim in his initial petition, he was barred for raising it in a successive petition under ORS 138.550(3).

Additionally, the Oregon Court of Appeals rejected the defendant’s contention that his procedural default should be excused based on inadequate assistance of his former post-conviction counsel because the defendant never raised the issue or presented any argument regarding the inadequacy of former counsel in the present petition for post-conviction relief. Cunningham v. Premo, 278 Or. App. 106 (2016)

Search and Seizure – Mere Conversation – Asking a Passenger to Step out of a Car

A defendant, the passenger in a car that was stopped for a traffic infraction, was not “seized” for the purposes of Article I, section 9, when a police officer asked her to step out of the stopped car, asked her to walk back to his patrol car, and questioned him about her criminal history. Nothing about the content or manner of the officer’s questioning could be construed as threatening or coercive, as the officer did not draw his weapon, raise his voice, or otherwise threaten the defendant in any way. Rather, the trial court, and nothing in the record contradicts the trial courts finding, that the officer was polite and easy going and that the defendant spoke to the officer of her own accord. Because the officer’s actions constituted “mere conversation,” the defendant was not unlawfully seized during the encounter and the evidence discovered during the encounter did not require suppression. State v. Graves, 278 Or. App. 126 (2016)

Attorney’s Fees – Plain Error in Imposing When the Record is Silent on the Defendant’s Ability to Pay

The trial court plainly erred in imposing $1,352 in court appointed attorney fees when the record was silent as to the defendant’s ability to pay them. State v. Graves, 278 Or. App. 126 (2016)

Restitution – Hospital Bill Insufficient to Prove Reasonableness of Medical Bills

The trial court erred in requiring the defendant pay $27,677.50 in restitution to the victim where the victim’s restitution request was based on a single hospital bill. Under ORS 31.710(2)(a), any charges for hospital or medical services must be proven to be “reasonable” before requiring that the defendant be required to pay restitution for those charges. Proof of reasonableness requires more than evidence of the medical charges themselves. Here, the victim merely presented the court with a bill for $27k and based on a surgery that followed from the defendant’s assault. Although it was undisputed that the victim was injured by the defendant, incurred the medical bill, and had necessary surgery, Oregon’s restitution statute still required proof beyond the victim’s medical bill that the charges for the hospital services were reasonable. State v. McClelland, 278 Or. App. 138 (2016)

Per Curiam Reversals of $60 “Mandatory State Assessment”

In per curiam opinions, the Court of Appeals reverses the trial court’s imposition of a $60 “mandatory state assessment” on each of the defendant’s convictions because the defendant’s offense occurred after the repeal of the statute that authorized such assessments. , State v. Caro, 278 Or. App. 162 (2016) and , State v. Easton, 278 Or. App. 167 (2016)

Imposition of $60 “Mandatory State Assessment” – Lack of Statutory Authority

The trial court exceeded its statutory authority when it imposed a $60 “Mandatory State Assessment,” because ORS 153.633(1) provides that the first $60 of any fine goes to the state, but does not provide for the imposition of a separate $60 fee. State v. Machado, 278 Or. App. 164 (2016)