Oregon Appellate Court--May 16, 2018

by: Rankin Johnson • May 22, 2018 • no comments

Summarized by Rankin Johnson, OCDLA

• SENTENCING -- Merger
• JURY INSTRUCTIONS -- Accomplices

Minor is ‘victim’ of DCS to a minor, precluding merger. Affirmed.

As victims, minors cannot also be accomplices of DCS to a minor and thus defendant was not entitled to accomplice-witness instructions.

State v. McMillan 291 Or App 707 (May 16, 2018) (Armstrong, J.)

• TRIAL PROCEDURE - In-camera review

Trial court erred by failing to review in camera school records of a minor witness. Vacated and remanded for further proceedings.

The defendant was accused of sexually abusing V, a young boy. E-mails and other evidence in discovery suggested that V’s cousin, IA, had been sexually abused and had brought pornography to school. Defendant made a threshold showing of possible relevance and favorableness as to some of IA's school records, and not as to other records. The matter was remanded for the court to exercise discretion as to whether to conduct an in camera review as to the evidence for which defendant had made a preliminary showing, and, if the court conducted the review and discovered Brady material, for a new trial.

State v. Guffey 291 Or App 729 (May 16, 2018) (Ortega, J.)

• APPEALS -- Mootness

Oregon courts retain authority to consider moot matters involving public interest where 1) the party who commenced the action had standing, and 2) the challenged act is capable of repetition or remains in effect, and 3) the challenged act is likely to evade further review. Affirmed.

A candidate for office in Douglas County wanted to seek reelection, notwithstanding a voter-approved ordinance that provided a term limit that prevented the candidate from seeking office. The chief petitioner for the initiative leading to the ordinance intervened. A circuit court issued a writ of mandamus directing the clerk to put the candidate on the ballot. After the writ issued, the candidate withdrew from the election. The Court of Appeals determined that, notwithstanding mootness, the public interest supported review. On the merits, the trial court determined, and the Court of Appeals agreed, that the the ordinance violated the Oregon Constitution by imposing new qualifications for candidates for county commissioner.

State ex rel Smith v. Hitt 291 Or App 750 (May 16, 2018) (Armstrong, J.)

• SEARCH AND SEIZURE -- Scope of stop

Stop was unlawfully extended by thirty seconds to conduct a dog sniff. Reversed and remanded.

Defendant was a passenger in a car validly stopped for a traffic infraction. Officer McGriff was writing a citation while Officer Ereth and Buddy the dog conducted a dog sniff. McGriff stopped writing the citation for about thirty seconds to provide cover to Ereth and Buddy. Buddy discovered drugs in defendant’s purse. The court determined that, under the Fourth Amendment, when McGriff stopped writing the ticket for “a measurable amount of time” to assist with the dog sniff, he extended the stop with no lawful basis to do so.

State v. Rosales 291 Or App 262 (May 16, 2018) (Hadlock, J.)

• DEFENSES -- Freedom of speech

Loud public speaking using an electrified bullhorn, causing annoyance to identified witnesses, was not constitutionally-protected conduct. Affirmed.

Defendant spoke using an electrified bullhorn in front of a grocery store during the holiday season. The state offered evidence that people in the grocery store and in a hotel 300 feet away found the noise annoying but could not understand defendant’s words. In upholding the conviction, the Court of Appeals observed that defendant was prosecuted for the volume of his speech, not the content.

State v. Puckett 291 Or App 771 (May 16, 2018) (Ortega, J.)

• SENTENCING -- Restitution

Testimony of Crime Victim Services Division claims examiner that the victim had received compensation for medical care and lost wages was not sufficient to support restitution award. Restitution award reversed.

Defendant assaulted victim, his romantic partner, by striking and dragging her. The state sought $4,000 in restitution for lost wages, chiropractic are, and acupuncture. The state offered evidence that the victim sought, and received, compensation from the state victim’s funds, but that evidence did not establish the source of the victim’s injuries and losses.

State v. Smith 291 Or App 785 (May 16, 2018) (DeHoog, J.)