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Oregon Appellate Court--September 20, 2017

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by: Msell@mpdlaw.com • September 26, 2017 • no comments

Written by Erin Severe, OPDS | Edited by Mary Sofia, OCDLA


Failure to Report as a Sex Offender – Classification of offense underlying juvenile adjudication determines whether failure to report is a misdemeanor or felony

Defendant’s failure to report as a sex offender was a felony because “the crime for which the person is required to report” refers to the offense underlying juvenile adjudication that gave rise to the reporting requirement.

Failure to report a move and a new address as a sex offender is a misdemeanor unless “the crime for which the person is required to report is a felony.” Former ORS 181.599(3)(b)(B) (2011). Here, defendant has an out-of-state juvenile adjudication for first-degree child molestation, which, if committed by an adult, is a felony in Oregon. After defendant moved to Oregon and knowingly failed to report the move and his new address, the state charged him with felony failure to report as a sex offender. Defendant demurred to the charge, arguing that because a juvenile adjudication is not a criminal conviction under Oregon law, it is not a felony, and he should not have been charged with felony failure to report. After the trial court denied the demurrer, defendant moved for judgment of acquittal at a stipulated facts trial on the same basis.

The court concludes that “the crime for which the person is required to report is a felony” refers to the underlying statutory offense that gives rise to the reporting requirement. Hence, it is the severity of the offense in the underlying juvenile adjudication that determines the severity of the crime of failing to report. The statutory scheme and legislative history of the failing to report statutes support that conclusion.

State v. Hinkle, 287 Or App 786 (2017) (Armstrong, P.J.)


Evidence—Affirmative Defense of Extreme Emotional Disturbance

Evidence of defendant’s Axis I anxiety disorder relevant to the affirmative defense of extreme emotional disturbance (EED). The state charged defendant with intentional murder with a firearm for killing his wife. Defendant filed a notice of his intention to raise an EED affirmative defense. He was examined by two psychologists, both of whom diagnosed defendant as having an Axis I anxiety disorder. One psychologist opined that, at the time of the murder, defendant’s anxiety contributed to his stress, despair, and rigid thinking. The state moved to exclude testimony about defendant’s anxiety disorder from trial. Defendant opposed the motion, arguing that evidence of his anxiety disorder was relevant to the subjective component of the EED defense. After the trial court granted the state’s motion to exclude the evidence, defendant entered a conditional guilty plea.

The court holds that the trial court erred in excluding the anxiety disorder evidence because it is relevant to establishing the “actor’s situation” component of the EED defense. Specifically, the court concludes that defendant’s Axis I anxiety disorder more closely resembles the personal characteristics, like physical illness or disability, that are relevant to establishing the “actor’s situation” for EED than personality-trait evidence that is not relevant to the defense. The court rejected the state’s argument that the “actor’s situation” is limited to the events or circumstances leading up to the homicide. Admitting evidence of an anxiety disorder diagnosis does not undercut the objective component of the EED defense, which embraces objective and subjective considerations.

State v. Zielinski, 287 Or App 770 (2017) (Armstrong, P.J.)


Parole & Post-Prison Supervision—Substantial Evidence—Ex Post Facto

Board’s decision to postpone petitioner’s release date 10 years supported by substantial evidence and did not violate ex post facto provisions of state and federal constitutions. Petitioner was convicted of murder and sentenced to life in prison in 1980, and received his first exit interview in 1997. At that hearing and every two years thereafter, the board postponed petitioner’s parole until 2013, when it postponed petitioner’s parole 10 years. The court concludes that the board’s finding that it is not reasonable to expect that petitioner will be granted parole before 10 years supported by record of several disciplinary violations and petitioner’s failure to take accountability for his actions, demonstrated lack of effort to address his psychological problems and factors leading to criminality, persistent claims of innocence (including for previous crimes and disciplinary violations), lack of remorse for death of seven-year old victim, and lack of foresight and planning for release.

Mendacino v. Board of Parole, 287 Or App 822 (2017) (DeHoog, J.)


Search & Seizure—Automobile Exception—Connection with a crime

An officer encounters a vehicle “in connection with a crime” for purposes of the automobile exception to the warrant requirement when the officer has reasonable suspicion that the occupant has committed a crime, and an "encounter" is not limited to when the officer first observes the vehicle.

An officer drove by defendant’s SUV parked in truck stop parking lot with defendant, a male bicyclist, and another woman standing outside the SUV. Because the bicyclist and woman appeared to be transient drug users, the officer stopped to watch them. The bicyclist left, and defendant and the woman got into defendant’s SUV and drove to a fuel island at the truck stop. The officer followed and ran the license plates on defendant’s SUV and learned that defendant was from Salem, the primary source of drugs in the area, and that defendant had multiple drug-related convictions. A few minutes later, defendant drove from the fuel island and re-parked in the parking lot. Defendant and the woman exited and walked up to the driver’s-side window of another parked car, which the officer recognized as belonging to a drug offender. The officer stopped 20 feet from defendant’s vehicle and approached them. Ultimately, following a drug-dog sniff, the officer conducted a warrantless search of defendant’s SUV and found drugs, cash, and weapons. At a suppression hearing, the trial court denied suppression on the grounds that the warrantless search was justified under the automobile exception to the warrant requirement.

On appeal, defendant argues that the warrantless search of her SUV was not justified by the automobile exception because her vehicle was not mobile when the officer “encountered it in connection with a crime”— that is, when the officer first observed it. The court rejects that argument, reasoning that the relevant “encounter” was not limited to when the officer first saw defendant’s vehicle. Because the officer had reasonable suspicion that defendant was involved in drug activity when he saw defendant drive her SUV from the fuel island back to the parking area, it was mobile when the officer encountered it in connection with a crime.

State v. Von Flue, 287 Or App 798 (2017) (Egan, J.)

Search & Seizure—Reasonable Suspicion—Suspicion of DUII diversion violation not a lawful basis to stop

Officer’s reasonable suspicion that defendant had violated her DUII diversion agreement is not a lawful basis for a stop.

Defendant entered diversion following a charge for driving under the influence of intoxicants (DUII). Law enforcement at a victim’s impact panel observed signs that defendant was under the influence of drugs, asked defendant to leave the auditorium, directed her to sit in a chair and blocked her exit, and confronted her about using illegal drugs. Defendant admitted to taking drugs and gave an officer consent to search her purse. The search revealed a firearm and drugs.

The court concludes that because the provisions of Oregon’s statutory DUII diversion program do not authorize officers to arrest a person for failing to comply with the conditions of DUII diversion, they do not implicitly authorize officers to stop a person based on reasonable suspicion that the person has violated those conditions.

State v. Chambers, 287 Or App 840 (2017) (Shorr, J.)

Search & Seizure—Search—Warrantless testing that exceeds scope of third-party search unlawful

Warrantless lab testing of underwear that had been obtained by defendant’s employees and provided to law enforcement was an unconstitutional search because it significantly exceeded scope of private search.

Defendant’s housekeeper and another employee observed signs of sexual activity between defendant and his daughter, collected a pair of the daughter’s underwear, and provided it to DHS. The underwear was delivered to the Oregon State Police crime lab for testing, which revealed evidence of spermatozoa. Based on that evidence, law enforcement obtained a search warrant for defendant’s house and seized additional evidence implicating defendant in the sexual abuse of his child.

On remand for the Oregon Supreme Court’s decision in State v. Sines, 359 Or 41 (2016), the court concludes that the employees’ seizure of the underwear did not violate the Fourth Amendment because DHS did not know or and acquiesce in the employees’ conduct. However, the court holds that the testing of the underwear constituted a search under both Article I, section 9, and the Fourth Amendment and, because the state did not obtain a warrant for the search, the search was unlawful. The court explained that defendant had a privacy interest in clothing that he provided to his child and retained that privacy interest when the clothing was removed from his home by a third-party and turned over to the police. The testing of the underwear constituted an unlawful search under the Fourth Amendment and Article I, section 9, because it significantly exceeded the scope of the private search in that it revealed previously unknown information about the substance on the underwear and was not the type of test that merely confirmed the presence of contraband. The trial court’s denial of defendant’s motion to suppress was not harmless; the state relied on the test results and the evidence derived from the results in its case against defendant.

State v. Sines, 287 Or App 850 (2017) (Duncan, J.)