Oregon Court of Appeals 12-15-10

by: Abassos • December 14, 2010 • no comments

Read the full article for details about the following new cases:

• In-Court Identification - Suggestive Throwdown
• Merger - Att. Assault II and Assault IV
• Amendment of Sentence without Defendant's Presence
• Restitution - Counseling Costs
• Plainly Erroneous PPS Terms
• Automobile Exception - Parked Vehicle
• Sex Abuse Diagnosis - Highly Concerning for Sex Abuse (Bench Trial)
• Civil Commitment - Dangerous to Self
• MJOA - DUII (Alcohol/Pot combo)
• Prison Sentence - No Contact Order

In-Court Identification - Suggestive Throwdown

In the seminal 1979 case State v. Classen, 285 Or. 221, 232 (1979), the Oregon Supreme Court stated that when a defendant offers proof that an out-of-court identification was unduly suggestive, "the prosecution must satisfy the court" that other aspects of the identification "substantially exclude the risk that it resulted from the suggestive procedure."

The Court of Appeals today blurs the prosecutorial burden imposed by Classen, stating that

in the crucible of the adversary process, a jury is usually in no worse position than a judge acting in a gatekeeper's capacity to determine the effect, if any, of improperly suggestive police techniques on the accuracy of eyewitness identification testimony. Thus, short of "a very substantial likelihood of irreparable misidentification," identification evidence is for the jury to weigh.

A well-reasoned and informative dissent highlights how the majority's analysis appears to have overlooked the degree to which Classen puts the burden on the prosecution. Affirmed. State v. Lawson

Merger - Att. Assault II and Assault IV

Attempted Assault II and Assault IV do not merge because they each have an element the other does not. Attempted Assault II requires an attempt to cause serious physical injury. Assault IV requires actual physical injury. State v. Tyler

Amendment of Sentence without Defendant's Presence

A judge can't amend a sentence without the defendant being present. Here, 8 years after sentencing, the judge altered the term of PPS and added a fine. Reversed and Remanded. State v. Herring

Restitution - Counseling Costs

A trial court may impose restitution only to the degree that it is supported by specific evidence in the record. However, in rejecting the defendant's proposal to vacate without remand for resentencing, the court notes that appellate courts have "consistently remanded for resentencing in circumstances in which the sentencing court erred by imposing restitution in the absence of any evidence of economic damages." Remanded. State v. Tippets

Plainly Erroneous PPS Terms

In rejecting the State's claim that failure to file a motion to correct an erroneous sentence of post-prison supervision in trial court automatically precludes plain error review under ORAP 5.45(1), the court states that its discretion to review for plain error in the context of PPS error depends chiefly on two salient factors: (1) Whether the defendant acquiesced in the trial court's error and failed to avail himself of a timely cure, and (2) The gravity of the sentencing error. Reversed and Remanded for Resentencing State v. Delgado

Automobile Exception - Parked Vehicle

Police may search a car where (1) they have probable cause to believe there is evidence of a crime or contraband in the car and (2) the car is mobile. A car is mobile where it is operable and not being impounded at the time the police first encounter it. Here, the officer first noticed the car while it was being driven, though by the time the officer contacted the passengers, the car was parked and the occupants standing near the car. The automobile exception applies for two reasons. First, the important point in time for the mobility inquiry is the time when the officer encountered the car. The defendant in this case agrees that the car was mobile at first encounter since the car was moving. Second, the car was still mobile at the time that probable cause developed because it was operable and not being impounded. State v. Groom

Sex Abuse Diagnosis - "highly concerning for sex abuse" - bench trial

A diagnosis of sex abuse shall not be admitted in the absence of physical evidence. It is a comment on the credibility of the alleged victim. This is true whether it's a jury trial or, as here, a bench trial. And it's true even where the diagnosis is hedged by, for example, saying that the facts are merely "highly concerning for sex abuse". And it's true whether it's a nurse, a doctor or some random CARES representative. Reversed. State v. Davilia

Civil Commitment - Dangerous to Self

AMIP was a danger to herself where she recently walked into traffic with her head down and, while driving, ran multiple red lights and stop signs. On the day of the hearing she presented in the exact same distracted, unaware manner that caused her previous dangerousness. Recent incidents plus a continuation of the same deficiencies amounts to a likelihood that the incidents will continue. This case has an excellent summary of the dangerousness to self case law and should be read if you're handling commitments. State v. D.R.

MJOA - DUII - Alcohol/Pot combo

The State does not need to submit additional evidence beyond admissions and impairment (i.e., a DRE test) where it relies on a combination of drugs and alcohol as a basis for its charge. Rather, "whether, in fact, alcohol and marijuana combined to impair defendant's abilities to the extent that he was under their influence is an issue for the jury once the facts in evidence permit the necessary inferences." Affirmed. State v. Harmon

Prison Sentence - No Contact Order

The court may not impose a condition of incarceration on a prison sentence. Here, a no contact provision on a M11 sentence. Remanded for resentencing. State v. Langmayer