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Oregon Appellate Court – November 1, 2017

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by: Mary A. Sofia • November 9, 2017 • no comments

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


Defenses—Extreme Emotional Disturbance—Preservation

Evidence—OEC 403—Record demonstrates balancing

Defendant’s challenge to trial court’s exclusion of evidence supporting extreme emotional disturbance defense unpreserved; record demonstrates that trial court balanced probative value of autopsy photographs against risk of unfair prejudice.

Defendant killed the victim during an increasingly contentious custody dispute over his grandson, the son of his daughter and the victim. At trial, defendant sought to prove the affirmative defense of extreme emotional disturbance (EED), which requires proof that (1) defendant committed homicide under the influence of an extreme emotional disturbance, (2) that the disturbance was not the result of the defendant’s own intentional, knowingly, reckless, or criminally negligent act, and (3) that there was a reasonable explanation for the disturbance. Evidence of personal characteristics like “age, sex, race, nationality, physical stature, and mental and physical handicaps” are relevant to prove the defense, while evidence of personality characteristics or traits are not. Defendant sought to have the expert testify that defendant (1) has no history of violence, (2) avoids conflict and values compromise, (3) does not share his feelings with others, and (4) values protecting his family. Defendant argued that those attributes were personal characteristics, not personality traits, and that the list of permissible personal characteristics identified in case law was not exhaustive.

On appeal, defendant concedes that the evidence he sought to present was more akin to personality trait evidence, but he contends that case law does not preclude admission of that evidence in regards to the first prong of the EED defense—whether defendant committed homicide under the influence of an extreme emotional disturbance. The court does not reach that question because it concludes that defendant’s argument is unpreserved.

Defendant also challenged the admission of autopsy photographs on the grounds that the probative value of the photographs was substantially outweighed by the danger of unfair prejudice; he also offered to stipulate to whatever facts the state sought to establish though the medical examiner’s testimony. The trial court excluded one photograph and admitted the others, ruling that it could not force the state to stipulate. The court rejects defendant’s argument that the record does not demonstrate OEC 403 balancing. The court also concludes that the trial court did not abuse its discretion in admitting the photographs.

State v. Johnson, 288 Or App 528 (2017) (Armstrong, P.J.)

Defenses—Self-defense Instruction—Sufficiency of Evidence

A self-defense instruction is warranted when the evidence is such that, when the record as a whole is viewed in the light most favorable to the defendant, it would be rational for a factfinder to find that the state had not met its burden of proving that self-defense does not apply.

Before trial, defendant raised the defense of self-defense by providing written notice. At trial, the state’s three witnesses testified that defendant had been the aggressor in a dispute where the victim ultimately pulled a gun on defendant, but varied significantly in their chronologies and the details of the incident. Defendant and defendant’s witness, his partner, also gave inconsistent testimonies. Defendant’s partner claimed that defendant had hit the victim after victim had pulled the gun on him. Defendant requested that the trial court deliver the self-defense instruction, but the trial court declined to give the instruction, reasoning that the evidence did not support it. The court concludes that the trial court erred in not instructing the jury on self-defense.

Viewed in the light most favorable to the defendant, the evidence was sufficient to require the instruction because a rationale fact finder could find from the evidence that the state had not met its burden of proving that self-defense does not apply. Specifically, the jury could have believed the testimony of defendant’s partner. Alternatively, the jury could have believed that, in view of the significant discrepancies in the witnesses’ accounts of the events, that there was too much uncertainty to conclude that defendant had not acted in self-defense.

State v. Wolf, 288 Or App 613 (Lagesen, J.)


Juvenile Dependency—Jurisdictional Judgment—Evidentiary Bases

Evidence sufficient to establish that grandfather, who had sexually abused daughters, presented risk to male grandchild. Additionally, evidence also sufficient to establish that domestic violence between divorced parents endangered children.

In this consolidated appeal, father appeals judgments asserting jurisdiction over children, C and S, and C appeals the judgment asserting jurisdiction over him. Father asserts, and the state concedes, that DHS failed to prove that his substance abuse interfered with his ability to safely parent the children. He also contends that DHS failed to prove that domestic violence endangered the children at the time of the jurisdictional hearing.

C contends that DHS failed to prove that his paternal grandfather, who has admitted to sexually abusing his own two daughters, was a threat to C’s welfare, which was the basis for the juvenile court’s determination that mother and father were unwilling and unable to protect him from harmful and dangerous circumstances. On that issue, C raises three assignments of error, challenging the admission of expert testimony. The court first concludes that the appeal is not moot notwithstanding that fact that, on the state’s motion, the juvenile court dismissed jurisdiction and wardship of both children because a decision on the issues will still have a practical effect on the parties.

As to C’s assignments of error, the court concludes that (1) the trial court did not plainly error in admitting the social worker’s testimony because it was not plainly unrelated to the facts of the case; (2) the trial court’s purportedly erroneous admission of a DHS caseworker’s testimony explaining why he had concluded that grandfather had sexually abused S was harmless because the trial court did not rely on that testimony; and (3) the evidence was sufficient to establish that grandfather presented a risk to C. The court finally concludes that the evidence was sufficient to support the juvenile court’s determination that the children were at a current risk of serious loss or injury from exposure to domestic violence between parents because parents were likely to reunite.

DHS v. C.T, 288 Or App 593 (2017) (Ortega, P.J.)

Juvenile Dependency—Required Findings—Absence of Findings Not Plain Error

Not plain error for trial court to not make findings in judgment where it is not obvious that hearing was a review hearing; even assuming trial court plainly erred in relying on unsworn testimony, appellate court would not exercise discretion to correct that error.

Mother appeals a juvenile court dependency judgment continuing child’s placement with the Oregon Youth Authority (OYA) and raises three assignments of error. In her first assignment, she asserts that the juvenile court plainly erred in failing to make required findings in its judgment under ORS 419B.449(3). In her second and third assignments, she claims that the court’s decision to deny her motion to return her child to her care and to continue placement in OYA was not supported by sufficient evidence because it was based on unsworn testimony. The court concludes that the absence of findings is not plain error because it is not obvious that the hearing was a review hearing that required findings. It also rejects mother’s second and third assignments of error, reasoning that the record supports the trial court’s findings, and even if the trial court’s reliance on unsworn testimony was plain error, it would not exercise its discretion to correct that error in this case.

DHS v. H.F.E., 288 Or App 609 (2017) (Ortega, P.J.)

Juvenile Dependency—Jurisdiction—Scope of jurisdictional bases

When a jurisdictional judgment (or attached documentation) specifically identifies a potential cause underlying a jurisdictional finding, it is “fairly implied” that the identified cause will be a referent for measuring the parent’s progress.

Father appeals from permanency judgments in which trial court changed permanency plans for two children away from reunification. Father argues that the juvenile court erroneously considered facts extrinsic to its bases for jurisdiction in determining that father had failed to make sufficient progress in ameliorating those bases. DHS removed children B and N from father’s home, and the juvenile court asserted jurisdiction over them based on father’s (1) substance abuse problems, (2) domestic violence problems, and (3) inappropriate discipline of his children. After father completed substance-abuse treatment and a batterer’s treatment program, N was returned to his custody. Six months later, father was charged and arrested for promoting prostitution of his girlfriend; N was removed from his home.

At his permanency hearing two months later, caseworks testified as to B’s and N’s special needs and father’s inability to provide for them. Father argued that the promoting prostitution charges and his children’s special needs were extrinsic to the bases for jurisdiction and should not be considered. The juvenile court changed the permanency plan away from reunification after finding that father had made insufficient progress with respect to domestic violence and inappropriate discipline. The court concludes that when a jurisdictional judgment (or attached documentation) specifically identifies a potential cause underlying a jurisdictional finding, it is “fairly implied” that the identified cause will be a referent for measuring the parent’s progress. Here, the scope of the jurisdictional bases concerning father’s domestic violence includes the potential causes for that issue that are explicitly cited in the case plan. Facts indicating that those causes have not been ameliorated, including father’s pending charges for promoting prostitution, are relevant to the “sufficient cause” injury and are not extrinsic. For similar reasons, facts regarding N’s and B’s special needs are not extrinsic to the “inappropriate discipline” basis for jurisdiction.

DHS v. C.E., 288 Or App 649 (2017) (Garrett, P.J.)


Parole—Evidence—Mitigating Evidence Relevant in Juvenile Offender Parole-Release-Date Hearing

Mitigating evidence related to petitioner’s conduct in prison and other circumstances in the year’s following his crimes relevant in hearing to set juvenile offender’s parole-release date.

In 1994, petitioner/defendant kidnapped, robbed, and murdered two people. He was 16-years old, and was waived into and tried in adult court, where he received consecutive life sentences for aggravated murder and an additional 280 months consecutive imprisonment on his robbery and kidnapping convictions. Following the Supreme Court’s decision in State ex rel Engweiler v. Felton, 350 Or 592 (2011), the board conducted a prison-term hearing for petitioner in October 2012 and set a parole-release date of April 19, 2042, after which petitioner would begin serving his 280 month sentence for his kidnapping and robbery convictions. Petitioner sought administrative review, arguing, among other things that the board had erred in precluding petitioner from introducing mitigating evidence related to events that occurred during the years since he murdered his victims and that it erred in using his uncounseled juvenile adjudications in calculating his prison term. The court holds that that under Calderon-Pacheco v. BPPPS, 309 Or 454 (1990), the board erred in excluding petitioner’s rehabilitation evidence under its own rules. The court does not reach petitioner’s assignment of error as to the uncounseled juvenile adjudications, but instructs the board to address the allocation of the burden of proof when readdressing that issue on remand.

Cunio v. BPPPS, 288 Or App 459 (2017) (Hadlock, C.J.)


PCR—Contents of Judgment—Admissibility of evidence on retrial not a proper subject of PCR judgment

PCR court did not err in failing to include provision limiting evidence state may offer on retrial in judgment granting post-conviction relief, Rather, admissibility of evidence issues must be raised with trial court.

The Court of Appeals concluded that petitioner/defendant was entitled to post-conviction relief on the grounds that his trial counsel was constitutionally deficient in failing to seek to exclude statements and testimony from a co-conspirator, allegedly obtained in violation of an immunity agreement with petitioner. On remand from that decision, petitioner sought to have the PCR court include in its judgment a provision prohibiting the co-conspirator from testifying and excluding his earlier trial testimony, any out-of-court statements the co-conspirator made following the immunity agreement, and any evidence that derived from the immunity agreement. The PCR court’s judgment did not restrict the evidence that could be admitted against petitioner on retrial, and petitioner appealed. The court affirms, reasoning that the admissibility of evidence on retrial is not a proper subject of post-conviction relief and to the extent that the doctrines of issue and claim preclusion and law of the case bar admission of that evidence on retrial, they are applicable upon entry of the PCR judgment, not in the judgment granting PCR relief. Petitioner thus must raise those issues with the trial court.

Oatney v. Kelly, 288 Or App 550 (2017) (Armstrong, P.J.)


Motion to Suppress—Preservation—Sufficiency of one-page motion

Motion to Suppress—Warrantless Seizure—Officers lacked probable cause to arrest defendant after officer safety concerns dissipated.

Defense counsel’s one page suppression motion and closing arguments sufficiently preserved issue in view of brief, straight forward nature of encounter. Officers lacked probable cause to arrest defendant after officer safety concerns dissipated.

Officers responding to a possible gang-related fight or shooting encountered defendant walking briskly and talking on his cell phone about four blocks away from the reported disturbance. One officer announced “Sheriff’s Office,” in a loud, commanding voice and pointed a flashlight at defendant. Defendant “bladed his stance.” Believing that defendant may be reaching for a weapon, the officers drew their firearms and ordered defendant to raise and hands and drop to his knees. Defendant complied. The officers handcuffed and frisked defendant for weapons, but they did not find any. Defendant remained handcuffed. A later consent search revealed evidence that was later used to convict defendant of drug crimes. Defendant moved to suppress that evidence prior to trial in a one-page suppression motion and supplemental memorandum, which averred, “The defendant as subject to a search and seizure without a warrant. Warrantless searches and seizures are per se unreasonable and the state has the burden of proving otherwise. State v. Miller, 269 Or 328 (1974).” At the subsequent suppression hearing, the state argued that defendant was in custody and that the officers had reasonable suspicion to stop defendant. Defendant countered that the officers lacked reasonable suspicion to stop him, and that he was unlawfully arrested after officer safety concerns dissipated and without probable cause. The trial court denied suppression.

On appeal, the state argues that defendant failed to preserve his argument that he was arrested without probable cause. The court concludes that defendant sufficiently preserved the issue because, in view of the brief, straight forward events, defendant’s motion put the state on notice that he was challenging the warrantless seizure and search by the officers. Further, defendant responded to the state’s arguments by contending that the state had failed to show that probable cause supported his arrest. On the merits, the court holds that the trial court erred in denying suppression: regardless of whether the officers had reasonable suspicion to stop and frisk defendant, neither probable cause nor officer safety concerns justified defendant’s arrest after the frisk revealed that he was unarmed.

State v. Sepulveda, 288 Or App 632 (2017) (Tookey, J.)

Motion to Suppress—Warrantless Search and Seizure—Officer Safety, Voluntary Consent, Emergency-Aid, and School Safety Exceptions

Seizure and search of defendant, who had arrived to scene of reported school shooting to check on sister, not justified under by officer safety, voluntary consent, emergency aid, or the school safety exceptions to the warrant requirement.

Defendant heard that a shooting had occurred at his sister’s high school and rushed to the school. He tucked a handgun into his pants and concealed it under his sweatshirt. The school was being evacuated when he arrived. An officer supervising patdown areas intended to insure that the shooter or accomplice did not escape by blending in with the evacuees, spotted defendant standing to the side and approached him. Defendant said that he did not know where to go. The officer, concerned that defendant had been involved in the shooting, escorted him to a patdown area, told defendant to put his hands behind his head, lifted defendant’s sweatshirt, and found the handgun. Defendant was charged with unlawful possession of a firearm. The court concludes that the warrantless stop and seizure of defendant was not justified by officer safety, voluntary consent, emergency aid, or the school safety exceptions. Defendant's “suspicious” conduct of looking away after making eye contact with the officer and nervousness did not support an objectively reasonable suspicion that defendant presented a threat to officer safety. Defendant did not voluntary consent to the search by arriving at a school where there would be a significant police presence and by acquiescing to the officer’s orders. The emergency aid exception—which is about rendering aid—is inapplicable to the circumstances in this case. Finally, officer’s general concern that defendant could have been involved in the shooting was insufficient to establish a reasonable suspicion, based on credible information and specific and articulable facts, required to justify seizure and search under the school safety exception.

State v. Powell, 288 Or App 660 (2017) (Shorr, J.)


Sentencing—Fines and Fees—DUII conviction fee not included within statutory maximum fine for Class A misdemeanor

Trial court’s imposition of a $6,200 fine and $255 DUII conviction fee did not violate statutory maximums.

Defendant was convicted of DUII, a Class A misdemeanor, the maximum fine for which is $6,250. The trial court imposed a $6,200 fine and a $255 DUII conviction fee, for a total financial obligation of $6,455. Defendant argues that the conviction fee must be included within the statutorily proscribed maximum fine of $6,250. Based on the text and context of the relevant statutory provisions, the legislature intended fees and fines to be separate things. Because the fee and fine were both within statutory limitations, the trial court did not err.

State v. Coates, 288 Or App 586 (2017) (Ortega, P.J.)

Sentencing—Fines and Fees—Error to impose premarked $255 DUII conviction fee on form judgment

State v. Macias, 288 Or App 691 (2017) (Per Curiam)

Sentencing—Fines and Fees--Plain error to impose court-appointed attorney where record silent as to defendant ability to pay

State v. Hayes, 288 Or App 698 (2017) (Per Curiam)