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Oregon Appellate Court-- Oct 19, 2017

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by: Msell@mpdlaw.com • October 25, 2017 • no comments

Written by Erin Severe, OPDS | Written and edited by Mary A. Sofia, OCDLA



Stalking Protective Order—Sufficiency of Evidence

Evidence of repeated, unwanted contacts insufficient to support stalking protective order where none of the contacts were threatening or objectively alarming.

Court holds that trial court erred in issuing stalking protective order (SPO) where respondent’s made repeated, unwanted contacts but none of the contacts were threatening or alarming. Petitioner and respondent met and began a casual relationship. Eventually petitioner sought to distance herself from respondent because respondent attempted to contact her too often. One evening, respondent parked for a short period outside petitioner’s home, left her a voicemail stating that he had come to talk to her, but drove away when he saw she had a guest. Petitioner told respondent that he should never come to her house again. Thereafter, respondent attempted to contact petitioner multiple times via text, social media, and by phone. Despite petitioner’s repeated requests that respondent stop contacting her and her efforts to block his contacts, respondent left a gift on her doorstep and sent letters asking for forgiveness. Petitioner obtained a temporary stalking protective order (SPO) and, following a hearing, the trial court issued a permanent SPO based on the foregoing facts. Respondent appealed. The court concludes that the trial court erred in issuing the SPO because none of the respondent’s expressive contacts, which included his letters, texts, and voice mail messages, threatened petitioner with imminent and serious violence. Additionally, none of respondent’s non-expressive contacts, which including parking outside her house and leaving a gift, were objectively alarming.

K.A.L. v. Hinkle, 288 Or App 341 (2017) (Shorr, J.)

Witness Tampering—Sufficiency of Evidence

Evidence that defendant attempted to persuade complainant to change her report to the police accusing defendant’s son of assaulting complainant is insufficient to support a conviction for tampering with a witness under ORS 162.285 when the record did not include any evidence that defendant intended to induce complainant “to not to testify or to testify falsely” in a hypothetical future criminal proceeding.

Under State v. Bailey, to sustain a conviction for witness tampering, the record must support reasonable inferences that: (1) the defendant did not want a crime reported to the police; (2) if the crime was reported, a criminal investigation and, possibly, a criminal prosecution would follow; (3) the defendant believed that the person he threatened would be a witness in that prosecution; and (4) the defendant’s acts or words were intended to induce the person “not to testify in that hypothetical future criminal prosecution.” State v. Bailey, 346 Or 551 (2009) at 567. See also State v. Kaylor, 252 Or App 688, 697, 289 P3d 290 (2012), rev den, 353 Or 428 (2013) (applying that test).

Court holds that trial court erred when it denied defendant’s motion for judgment of acquittal because the record did not include evidence supporting a reasonable inference of the fourth prong of the Bailey test.

At the time of the events in question, defendant, his wife, their sons, A and O, and O’s then-girlfriend, the complainant, lived together. After an incident at the home, complainant left the house and reported to police that A had attempted to sexually assault her. Over the course of three days, defendant pressured complainant to consider changing her story to the police. At one point, defendant told complainant, “Well, just think for his sake. Because [A] just got out of prison and if he goes back, he’s going to be in there for a longer time and just think how that’s going to hurt us as * * * his parents if he goes back to prison.” In this case, evidence that defendant reasonably believed that the complainant would be called to testify against A at an official proceeding is not enough, rather there must be additional evidence leading to the reasonable inference that defendant’s statements to the complainant were “intended to induce [her] not to testify in that hypothetical future criminal prosecution.” The Court states that under Bailey, “any leap from defendant’s comments regarding his son’s potential imprisonment to the conclusion that he was attempting to induce the complainant to give false testimony at a future trial is speculative, not inferential.” (ms)

State v. Ortiz-Saldana, 228 Or App 230 (2017) (Hadlock, C.J.)


Criminal Procedure—Improper Joinder

Trial court erred in denying demurrer where indictment failed to demonstrate that various property, driving, and drug crimes were properly joined. The state charged defendant with eight crimes, including robbery, burglary, attempting to elude, reckless driving, possession of heroin, and recklessly endangering another person, all alleged to have occurred in the same county and on the same date, in a single indictment. The indictment did not allege any of the bases for joinder described in ORS 132.560. Defendant demurred, arguing that the indictment failed to demonstrate on its face that the robbery and burglary counts were properly joined with the other counts and that the possession of heroin count had nothing to do with the other offenses. The court agrees that the possession of heroin count was improperly joined and that the driving offenses were also improperly joined because facts alleged any similarity or connection between those counts and the other counts. The court concludes that the trial court’s error in denying demurrer was harmless as to the burglary and robbery counts, but not to the other counts.

State v. Walsh, 288 Or App 331 (2017) (DeHoog, J.)


PCR—Inadequate Assistance of Counsel—Vouching

Trial counsel constitutionally inadequate for failing to object to state witness’s testimony commenting on the credibility of the complainant. The state charged defendant/petitioner with sex offenses arising from allegations made by a nearly five-year old girl. At trial, a CARES interviewer testified and commented on portions of a video-recorded CARES interview played to the jury. The interviewer testified that from his training and experience, the complainant’s account “seemed like a genuine statement.” Petitioner’s trial counsel did not object to that testimony. Other evidence at trial indicated that the complainant had been interviewed by CARES on three previous occasions unrelated to petitioner and may have seen other sexual activity. Following his conviction and appeal, petitioner filed for post-conviction relief on the grounds that his trial counsel had been inadequate in failing to object to the vouching testimony. The post-conviction court granted relief, and the superintendant appealed. On appeal, superintendant argues that post-conviction court erred in granting relief because witness’s testimony was not “true vouching.” The court affirms the post-conviction court’s judgment. Here, the witness’s testimony that he believed that the complainant’s allegations were “genuine” was the equivalent to saying that she was telling the truth. Counsel failed to exercise reasonable skill and judgment in failing to object to that testimony. Because the vouching testimony could have effected the jury’s verdict, counsel’s failure to object was prejudicial.

Alne v. Nooth, 288 Or App 307 (2017) (Egan, J.)


Motion to Suppress—Probable Cause of Traffic Violation—Failure to Drive Within a Lane

Failure to drive within a lane statute requires drivers to stay within a single lane unless the driver has some valid reason that makes it impracticable to do so. An officer observed defendant’s Hummer drift back and forth within its lane, briefly cross a lane-dividing line, and cross over the fog line for 20 to 30 feet. The officer stopped defendant for failing to drive within a single lane, ORS 811.370(1)(a), observed evidence that defendant was intoxicated, and arrested defendant for DUII. Defendant moved to suppress, arguing that the officer lacked probable cause to stop him because ORS 811.370 does not prohibit brief and minor instances of driving outside a lane. Court holds that ORS 811.370 requires drivers to stay within a single lane unless the driver has some valid reason that makes it impracticable to do so. Here, because there was no apparent reason for defendant not to keep his vehicle within the lane, the officer had probable cause to stop him for violating ORS 811.370(1)(a).

State v. Rosling, 288 Or App 357 (2017) (Aoyagi, J.)


Sentencing—Subcategory Facts—Timing of Submission to Jury

Late submission of subcategory fact to sentencing jury harmless and did not violate defendant’s statutory right against former jeopardy.

The state indicted defendant with unlawful delivery of cocaine for consideration, unlawful delivery of marijuana for consideration, and unlawful possession of cocaine. At trial, the state presented evidence that a police informant had paid defendant $100 for the cocaine and marijuana. The verdict form directed the jury to determine whether the marijuana delivery was for consideration, but did not direct the jury to determine whether the cocaine delivery was for consideration. The jury found defendant guilty of delivery of cocaine, delivery of marijuana for consideration, and unlawful possession of cocaine. After realizing the error, the prosecutor sought leave from the trial court to present evidence that defendant had delivered the cocaine “for consideration” at a hearing previously scheduled for the jury to determine aggravating facts necessary for the imposition of departure sentences. Over defendant’s objection, the trial court permitted the prosecutor to present that evidence. The court holds that any error that the trial court committed in submitting the “for consideration” subcategory fact to the jury during the sentencing phase was harmless; defendant had notice that the state intended to rely on the fact as an enhancement fact, the fact was fully litigated, and the jury found the fact beyond a reasonable doubt. Further, submission of the fact during the sentencing phase did not prejudice the jury’s determination of guilt or otherwise prejudice defendant. Submission of the “for consideration” subcategory fact also did not violate defendant’s statutory right against former jeopardy because (1) subcategory facts are not elements for statutory former jeopardy purposes and (2) the sentencing phase of a criminal prosecution is not a successive prosecution.

State v. Morris, 288 Or App 364 (2017) (Duncan, J.)