Oregon Appellate Court--February 22, 2018

by: Rankin Johnson • February 27, 2018 • no comments

Summarized by Rankin Johnson, OCDLA

• SEARCH AND SEIZURE - Reasonable suspicion

Pulling over slowly while glancing toward the center of the car, continuing to glance down and to the right, and a statement that defendant was traveling to and from locations on the other side of town, did not provide reasonable suspicion to extend a traffic stop and investigate weapon or drug offenses.

Defendant was stopped for crossing the center line. He slowed down to ten or fifteen miles per hour and drove for thirty seconds on a road with very little traffic and with no place to pull completely off the road. While defendant pulled over, the stopping officer could see him look toward the passenger-side of the vehicle more than once. When the stopping officer approached, defendant said that his license was suspended and he carried no physical ID. The car belonged to defendant’s girlfriend, who was “known to be involved in controlled substances.” The stopping officer verified defendant’s identity, at which point he had enough information to write a citation.

The stopping officer suspected that the defendant was involved in criminal activity. He directed the defendant out of the car, conducted a patdown, and ultimately searched the car. The court held that nervous behavior and connection with other people connected to drug offenses did not constitute reasonable suspicion to extend the stop.

The matter was reversed and remanded.

State v. Decker 290 Or App 322 (February 22, 2018) (Hadlock, J.)

• EVIDENCE -- OEC 403 balancing

Trial court failed to make an adequate record in connection with OEC 403 balancing.

Defendant was accused of sex offenses against a 10-year-old girl. The state offered evidence that the defendant’s room was decorated with female action figures, that he had a sexually-explicit picture of Cinderella on his computer, and that defendant possessed a binder filled with sexually-explicit photographs. Defendant moved to exclude that evidence as unreasonably prejudicial. The trial court denied the motion, but failed expressly to compare the probative value of the evidence with the prejudicial effect and make a ruling with sufficient findings for appellate review. The matter was remanded for the trial court to conduct proper OEC 403 balancing.

State v. Salsman 290 Or App 346 (February 22, 2018) (Lagesen, J.)

• CONTEMPT -- Remedial contempt

Trial court plainly erred by imposing determinate term of probation and erred by awarding to petitioner real property belonging to respondent, in a remedial contempt proceeding arising from a dissolution judgment.

Petitioner (wife) and respondent (husband) are divorced. In the dissolution judgment, respondent was required to pay an equalizing judgment and spousal support. Respondent did not do so. Petitioner moved to show cause and sought jail time and a $1,000 fine, or, in the alternative, that she be awarded a $55,000 piece of real property belonging to respondent. Respondent argued that he was unable to pay. The court found respondent “in remedial contempt” and imposed a six-month indeterminate jail term, 24 months of probation, and awarded respondent’s real property to petitioner. The Court of Appeals found that a determinate term of supervision and the real property award were improper in a remedial contempt case. The matter was reversed and remanded.

Lamm and Lamm 290 Or App 351 (February 22, 2018) (Tookey, J.)

• CRIMES--DUII
• EVIDENCE--Inferences

In DUII prosecution, trial court erred in denying MJOA. Defendant’s BAC was .09% an hour and forty-five minutes after driving. No evidence established whether it was going up or down at that time, and thus BAC of .08% at the time of driving was not proved beyond a reasonable doubt.

The court reasoned that, although it is generally known that alcohol dissipates over time, and although the evidence showed that defendant did not consume alcohol between the stop and the breath test, there was no evidence in the record as to whether defendant’s BAC was rising or falling at the time of his breath test. Further, the rate of dissipation is not a matter of common knowledge. The court distinguished earlier cases that, in dicta, permitted the jury to choose what inference to draw if multiple inferences were available.

The court held that, when there are multiple inferences to draw from the evidence and no basis to choose between them, any particular inference is mere speculation.

The dissent argued that, when the evidence permits multiple inferences, the finder of fact can choose between them. Accordingly. the finder of fact could have concluded that defendant’s BAC was falling at the time of the breath test, and thus that it was above the legal limit when defendant drove.

Reversed.

State v. Hedgepeth 290 Or App 399 (February 22, 2018) (Shorr, J.) (En banc) (Powers, J., dissenting)

• SEARCH AND SEIZURE -- Consent searches

Police officer did not “seize” defendant by asking him to lace his fingers together on top of his hand and placing hand on defendant’s laced fingers as he got out of the car for a consent search of the car, and defendant’s consent to a search permitted an extension of the traffic stop until he revoked his consent or the search was concluded.

During a routine traffic stop, defendant consented to a search of his car but not his person. Police asked him to exit the car, and to lace his hands together behind his head as he got out of the car. Police discovered brass knuckles and methamphetamine in defendant’s car, and defendant made incriminating statements.

The court held that the police did not improperly extend the traffic stop by conducting a consent search, and the court declined to consider, as unpreserved, whether the request for consent to search defendant’s car was an extension of the traffic stop. Affirmed.

State v. Cowdrey 290 Or App 415 (February 22, 2018) (Shorr, J.)

• CRIMES--Felon in possession of a firearm

Second Amendment does not protect felons’ right to possess firearms in their own homes.

Declined to reach question of whether Second Amendment prevents prohibiting constructive possession of firearms by felons because of the resulting limitation on firearm ownership of others in the household. Affirmed.

State v. Beeman 290 Or App 429 (February 22, 2018) (James, J.)

• SENTENCING -- Statutory maximum term

Prison and PPS terms together cannot exceed statutory indeterminate sentence maxima, but time spent on probation before imposition of prison term does not count toward maximum.

In 1995, defendant was sentenced to twenty years’ probation for two counts of Sex Abuse I. In 2009, his probation was revoked and he was sentenced to 88 months in prison. When he was released on PPS, the Board imposed a 169-month PPS term. Defendant objected that the time spent on probation, in prison, and on PPS cumulatively exceeded the 20-year indeterminate maximum for a Class A felony. The court ruled that the prison and PPS terms combined had to be less than the maximum, which they were; probably does not count toward that total. Affirmed.

Putnam v. Board of Parole 290 Or App 436 (February 22, 2018) (James, J.)

• TRIAL PROCEDURE -- Motions for new trials

Trial court did not abuse its discretion in denying new-trial motion based on newly-discovered evidence or irregularity in the proceedings.

Defendant was accused of unlawful possession of a short-barreled rifle. The complainant testified that defendant had spent the night at her apartment and became angry when she asked him to leave. Defendant threatened the complainant, brandished a gun, put it into his backpack, and left. The complainant followed defendant, called 911, and told the 911 operator that defendant had threatened her with a long gun which was in his backpack.

Police tracked defendant to a restaurant and arrested him. Hidden in a nearby trash can was a .22 rifle with a cut-down stock and barrel and a live .22 round in the chamber. A similar .22 caliber round was in defendant’s backpack. The arresting officer said that there was no knife sheath in defendant’s backpack. The backpack was logged into evidence as personal property and, 90 days later, was destroyed in accordance with jail policy.

Defendant testified that he did not possess a gun but did possess a long knife sheath that looked like a gun. Defendant denied that he had a .22-caliber round in his backpack.

After trial, defendant filed a motion for new trial. He had obtained a video of his booking, which included removing items from defendant’s backpack. One item might have been the knife sheath that defendant described.

The trial court denied the motion, reasoning that the state had a strong case and the newly-discovered evidence was unlikely to have made a difference. The Court of Appeals agreed. Affirmed.

State v. Davis 290 Or App 444 (February 22, 2018) (Aoyagi, J.)

• SENTENCING -- No-contact provisions

Trial court plainly erred by imposing no-contact provision in connection with a jail term. The judgment was reversed and the matter remanded for entry of a judgment without the offending term.

State v. Coventry 290 Or App 463 (February 22, 2018) (Per curiam)