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Oregon Appellate Court – October 25, 2017

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by: Msell@mpdlaw.com • October 30, 2017 • one comment

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


Criminal Procedure—Concurrence Instruction

Trial court erred in failing to give a concurrence instruction where the state presented evidence and argued two factual theories of interfering with a police officer for refusing to obey a lawful order to the jury.

After a traffic stop of defendant escalated into a confrontation with the police, the state charged defendant with interfering with a peace officer for refusing to obey a lawful order. The charging instrument did not specify which order defendant had disobeyed. The evidence at trial supported two factual theories, that defendant had disobeyed orders to get back into his car and that defendant had disobeyed orders to put his arms behind his back. In opening statements and closing arguments, the prosecutor initially focused on defendant’s refusal to get back into his car. Defendant also responded to that theory in closing. During rebuttal and over defendant’s objection, the prosecutor argued that the jury could also convict defendant for refusing the officers’ orders to put his arms behind his back. On appeal, defendant argues that the trial court erred by overruling the objection and not giving a concurrence instruction. The state concedes the error. The court holds that the trial court plainly erred in failing to give a concurrence instruction. It does not decide whether the trial court also erred in overruling the defendant’s objection to the state’s introduction of a new factual theory in rebuttal argument.

State v. Sippel, 288 Or App 391 (2017) (Lagesen, P.J.)


Evidence—Witness-False-in-Part Instruction

Witness-false-in-part instruction properly given where physical evidence directly contradicts defendant’s trial testimony.

Officers were dispatched to investigate a report that a damaged pickup pulled into a gas station and that two occupants fled on foot. The truck had extensive front-end damage and a missing tire. The officers found defendant and another man walking about a block from the gas station. Defendant appeared visibly intoxicated. Defendant twice told the officers that he had been driving, but later denied driving after being confronted about the damage to the truck. An officer received defendant’s consent to check under defendant’s shirt for injuries and saw an upside down U-shaped abrasion on defendant’s chest, which suggested to the officer that defendant was not wearing a seat belt when he hit the steering wheel. At trial, defendant testified that he had not been driving and explained why he had initially lied to the officers. At the state’s request, and over defendant’s objection, the trial court gave the “witness-false-in-part instruction.” On appeal, defendant argues that the trial court erred in giving the instruction because his trial testimony was not inconsistent with his prior statements. The court concludes that the trial court did not abuse its discretion in giving the witness-false-in-part instruction because the jury could find that defendant consciously testified falsely when he denied driving based on the physical evidence that he had been driving.

State v. Roman, 288 Or App 441 (2017) (James, J.)

Evidence—Remand for OEC 403 balancing

Defendant not limited on remand to arguments made first time in trial court in support of exclusion under OEC 403.

State v. Davis, 288 Or App 451 (2017) (Per Curiam)

Evidence—Relevance—Evidence of Acquittal

Evidence that defendant was acquitted of nondrug charges that had led to his arrest and search, during which methamphetamine was found, relevant at trial for unlawful possession of methamphetamine to dispel potential prejudice of being branded as a criminal.

State v. Langenberg, 288 Or App 454 (2017) (Per Curiam)


Juvenile Delinquency—Third-degree Assault—Sufficiency of Evidence

Evidence that youth returned to fight and held the victim while another person punched and kicked the victim supported finding youth was within juvenile court’s jurisdiction for acts that, if committed by an adult, would constitute third-degree assault.

Youth confronted the victim at school by yelling at her. The victim pushed youth away, and youth grabbed the victim’s hair and began punching her. Additional parties joined the fight, including youth’s friend A, who pulled the victim the floor and punched and kicked her. Youth briefly left and returned to the fight and held the victim while A punched and kicked her. A teacher broke up the fight a short time later. The victim received treatment for a concussion, neck, and back injuries. Youth was found to be in the jurisdiction of the juvenile court for acts that if committed by an adult would constitute second-degree disorderly conduct and third-degree assault. At the hearing, youth argued that there was insufficient evidence that she caused the victim’s injuries to support the third-degree assault allegation. The court concludes, viewing the evidence in the light most favorable to the state, that there was sufficient evidence for the trial court to find that youth caused physical injury as a principle because youth’s actions were so extensively intertwined with the infliction of physical injury to the victim that her conduct could be found to have produced that injury.

State v. M.M.A., 288 Or App 407 (2017) (Garrett, J.)


Motion to Suppress—Warrantless Searches—Abandonment of Privacy Right

Defendant abandoned his privacy interest in a camera disguised as a charging device by purposefully leaving it in a public bathroom, in plain view, where any person visiting the bathroom could inspect it, for several days.

A Starbucks employee found a small, charger-like device that he believed to be a camera plugged-in across from the toilet in the restroom and called the police. An officer responded and took and lodged the device at the department as “found property.” A week later, a captain reviewing the department’s calls from the week prior, retrieved the device and determined that it was, in fact, a camera. A detective followed up with the Starbucks employees and learned that a man had come in and attempted to retrieve a charger. When the employees told him that it had been turned over to the police, the man appeared surprised and exited the store. Using surveillance footage from Starbucks and footage from the device, the detective obtained a search warrant for defendant’s two residences. Relying on the state and federal constitutions, defendant moved to suppress the warrantless search of the device and subsequent searches of his homes. The trial court denied suppression, ruling that defendant abandoned his privacy right to the camera when he left it in the Starbucks restroom. The court holds that defendant abandoned his privacy interest in the camera under the state and federal constitutions because he purposefully left the property in a restroom available to the general public, in plain view, where any person visiting the bathroom could have inspected it, and left it there for several days.

State v. Ipsen, 288 Or App 395 (2017) (A157082) (Tookey, J.)

Motion to Suppress—Issue Preclusion—Relitigating suppression in another jurisdiction

Issue preclusion applies in motion to suppress hearings.

Following the discovery and search of a hidden camera found in a Starbucks restroom, the state charged defendant with multiple counts of second-degree invasions of personal privacy in both Washington and Deschutes counties. In Washington County, defendant was convicted in a stipulated facts trial following the trial court’s denial of his suppression motion. Defendant filed a nearly identical suppression motion in Deschutes County. The Deschutes County court denied the motion, concluding that it was precluded from determining the merits because it had already been heard and decided by the Washington County court. On appeal, defendant argues that the Deschutes County court erred in ruling that issue preclusion barred defendant from relitigating suppression because application of the doctrine infringes in defendant’s right to a jury trial and the decision on the motion to suppress is distinct from and not essential to a decision as to defendant’s guilt. The court rejects both of those arguments. The trial court’s reliance on the doctrine of issue preclusion did not infringe on defendant’s right to a jury trial because a suppression court does not decide facts necessary for conviction, but resolves preliminary questions as to the admissibility of evidence. The doctrine was applicable in the Deschutes County hearing because the denial of defendant’s motion to suppress was necessary to defendant’s judgment of conviction in Washington County and, hence, was essential to a final determination on the merits in that case.

State v. Ipsen, 288 Or App 402 (2017) (A157904) (Tookey, J.)

Motion to Suppress—Right Against Self-Incrimination—Invocation and Waiver

Defendant unequivocally invoked his right against self-incrimination when he said, “I’m done talking.” Defendant’s later statements were not voluntary because they were prompted, there was no material change in circumstances between defendant’s invocation and the questioning, and defendant remained in custody throughout the encounter. Police officers were dispatched to department store parking lot after two women were observed leaving the store with merchandise they had not paid for. When two loss-prevention officers and a mall security guard attempted to stop the women, defendant intervened. The police officers stopped defendant in the mall parking lot. The officers removed defendant from his vehicle, handcuffed and read Miranda to him, and placed him in the back of a patrol car. On the way to the jail, an officer questioned defendant about his ownership of the car, and defendant said, “I’m done talking.” The officer continued to question defendant. During booking at the jail, the officer handed defendant a charge list, and defendant responded, “How the hell? Fucking robbery, really.” Thereafter, the officer and defendant had an exchange, during which defendant gave an account of the events. During a suppression hearing, defendant argued that he had invoked his right to silence when he said “I’m done talking.” The state agreed, but argued that defendant reinitiated contact when he said, “How the hell? Fucking robbery, really?” The trial court agreed with the state and denied suppression. The state offered the exchange that occurred at the jail into evidence at trial. The court concludes that defendant unequivocally invoked his right against self-incrimination when he said, “I’m done talking.” Additionally, the court concludes that defendant did not voluntarily waive that right; defendant’s statements were not unprompted, there was no material change in circumstances between his invocation and the purported waiver, and defendant remained in custody throughout the encounter. Because the trial court’s admission of defendant’s statements was not harmless, reversal is required.

State v. Schrepfer, 288 Or App 429 (2017) (James, J.)