Oregon Appellate Ct - Nov 16, 2016
by: Sara Werboff • November 18, 2016 • no comments
State v. Dulfu, 282 Or App 209 (2016) (Hadlock, C.J.)
Ha v. Board of Parole, 282 Or App 227 (2016) (Hadlock, C.J.)
Evidence - Trial Court Did Not Err in Admitting Officer's Testimony to Possible Hearsay Statements
Defendant challenged the revocation of his probation for violating a no-contact order with P. P called the police after seeing defendant at a MAX station and receiving text messages from him. P did not appear at the probation hearing. Instead an officer testified that P identified herself and showed him the text messages on her phone. Defendant objected to that evidence as hearsay.
The court concludes that even if the officer's testimony about P's identity was hearsay, any admission was harmless. Defendant testified that he was at the MAX station and saw P and the officer testified that defendant admitted to seeing P at the MAX station. Both of those statements were admissible. With respect to P's text messages, P simply showed the text messages to the officer and did not make any verbal or nonverbal assertions that defendant sent the text messages, and the officer's testimony connecting the messages to defendant was based on his own observations.
State v. Jenkins, 282 Or App 276 (2016) (Devore, J.)
State v. Tate, 282 Or App 320 (2016) (Tookey, J.)
Evidence - Prior Uncharged Misconduct Evidence Admissible to Prove Motive but Court Erred by Not Conducting 403 Balancing
In this assault case, the court affirms the trial court's admission of an earlier uncharged assault. Defendant was convicted of assaulting his girlfriend on September 21 and October 18. Defendant also assaulted his girlfriend on September 13 because he had a "jealousy issue." The girlfriend left their shared residence, and returned on September 21. When she returned defendant again assaulted his girlfriend while questioning her fidelity. The state filed a motion in limine to admit the September 13 incident to show defendant's motive to assault his girlfriend on the 21st and the trial court admitted the evidence. Defendant request OEC 403 balancing but the trial court did not conduct balancing.
The court concludes that the evidence was admissible to show defendant's motive to assault his girlfriend. There was sufficient evidence to show that the same "jealousy issue" that prompted defendant to assault his girlfriend on September 13 led to the subsequent assaults. The court then concludes that the trial court erred when it failed to conduct balancing under OEC 403, as defendant requested.
State v. Edwards, 282 Or App 328 (2016) (Tookey, J.)
Search & Seizure - Officer Unlawfully Extended Stop Without Reasonable Suspicion
The court concludes that police unlawfully extended a traffic stop when it stopped processing defendant's traffic violation and began an investigation into unlawful use of a vehicle (UUV) without reasonable suspicion. The officer validly stopped defendant. Defendant told the officer that it was not his car, but provided his driver's license and insurance. The insurance card specifically identified the car defendant was driving. The officer became suspicious that defendant did not have permission to drive the car. The officer ran the car's plates and it was not reported stolen, however, he was still suspicious, so he ran defendant's name. The officer could not find any connection between defendant and the registered owner of the car. The officer began questioning defendant again, and defendant said he was borrowing the car from his friend, Doug, which was not the registered owner's name. The officer started runing a "wanted person" inquiry on defendant and his passenger. While that was ongoing, the officer ordered defendant out of the car and defendant ultimately consented to the search.
The court agrees with defendant that the officer unlawfully extended the stop when he questioned defendant after learning the identity of the registered owner. The officer had all the information he needed to process the traffic violation. Additionally, the officer lacked reasonable suspicion of the UUV because defendant's nervous demeanor, defendant's vague statements about his possession of the car, and the fact that the officer could not find a connection between defendant and the registered owner were not suspicious. The court declines to consider the state's alternative basis for affirmance that the defendant's consent was attenuated from the illegal extension of the stop.
State v. Dawson, 282 Or App 335 (2016) (Flynn, J.)
Per Curiam - Disorderly Conduct - Defendant Entitled to Acquittal for Failure to Prove he Created a Public Risk
The court holds that the state failed to prevent sufficient evidence that defendant created a risk of public inconvenience, annoyance, or alarm. Defendant was charged with second-degree disorderly conduct after he got into an altercation with a taxi driver. There was no evidence that anyone other than the taxi driver or the police officers responding to the incident would have been aware of defendant's conduct. The state concedes that it failed to prove that defendant's actions affected the public.
State v. Schell, 282 Or App 364 (2016) (per curiam)
Per Curiam - Civil Commitment - Trial Court Failed to Advise Appellant of his Rights
The court reverses an order civilly committing appellant because the trial court failed to advise appellant of his rights listed in ORS 426.100(1).
State v. P.H.D., 282 Or App 367 (2016) (per curiam)
