Oregon Appellate Ct - April 5, 2017
by: Sara Werboff • April 7, 2017 • no comments
No Reversible Error in Excluding Evidence of Defendant’s Character – Error in Applying Departure Factors
In this aggravated animal abuse case, the court upholds defendant’s conviction but remands for resentencing. Defendant killed six of his cats. Defendant admitted to killing the cats but denied he did so “maliciously.” In support of his defense, defendant called a neighbor who testified, in part, that defendant had an intellectual disability. The state objected and that evidence did not come in. The neighbor also tried to testify to defendant’s character for gentleness towards animals. On appeal, the court concludes that evidence of defendant’s intellectual disability was not relevant in the absence of a nexus between that fact and defendant’s mental state during the offense. With respect to defendant’s character for gentleness, the court concludes that any error is harmless because it would have been cumulative of other evidence that defendant loved his cats and had a gentle nature toward them before he killed them.
The trial court imposed a downward dispositional and upward durational departure. The court concludes that resentencing is required because, as the state conceded, the trial court relied on three inapplicable upward departure factors that were already captured by the elements of the offense. The fourth departure factor, vulnerable victim, may or may not have justified the upward durational departure and the court remands to the trial court to consider that factor. The state also conceded that the trial court plainly erred in calculating defendant’s criminal history score but in light of the court’s disposition, a resentencing, it does not reach that issue.
State v. Wright, 284 Or App 641 (2017) (Devore, J.)
Restitution – Remand Required to Apply Ramos
The court vacates a restitution award for the victim’s medical expenses, remanding to the trial court so that it can apply the reasonable foreseeability test in State v. Ramos, 358 Or 581 (2016). The trial court imposed restitution finding that defendant’s criminal activity was a “but-for” cause of the victim’s expenses. It declined to determine whether the expenses were reasonably foreseeable. Ramos was decided thereafter. The court concludes that a remand is required to allow the trial court to determine whether the expenses were reasonably foreseeable.
State v. Rodriguez, 284 Or App 652 (2017) (Tookey, P.J.)
Per Curiam – Reversal Required when No Signed Jury Waiver
Defendant tried his case to the trial court but the trial court did not secure a written jury trial waiver. The court accepts the state’s concession that defendant is entitled to reversal and remand for a new trial when there was no written jury waiver in the record.
State v. Diaz, 284 Or App 655 (2017) (per curiam)
Per Curiam – Reversing Attorney Fee Award
The court accepts the state’s concession that the trial court plainly erred in imposing $6,969.68 in court-appointed attorney fees when the record was silent as to defendant’s ability to pay those fees.
State v. Reedy, 284 Or App 657 (2017) (per curiam)
Per Curiam – Trial Court Plainly Erred in Failing to Merge Guilty Verdicts
The court accepts the state’s concession that the trial court erred in failing to merge the guilty verdicts for third-degree sexual abuse that were different theories of the same act or transaction.
State v. Keller, 284 Or App 660 (2017) (per curiam)
Per Curiam – Reversing Sentence that Exceeded the Statutory Maximum
The court remands for resentencing after the state conceded that the trial court sentence of 5 years incarceration and 18 months post-prison supervision on a UUV charge exceeded the 5 year maximum indeterminate sentence. The court rejects the state’s argument that remand for resentencing is not required.
State v. Hannah, 284 Or App 662 (2017) (per curiam)
Per Curiam – Reversing “Mandatory State Amt”
The court accepts the state’s concession that the trial court lacked statutory authority to impose a $60 “mandatory state amt.”
State v. Hodges, 284 Or App 665 (2017) (per curiam)
Per Curiam – Reversing “Mandatory State Amt”
The court accepts the state’s concession that the trial court lacked statutory authority to impose a $60 “mandatory state amt.”
State v. Spence, 284 Or App 667 (2017) (per curiam)
Per Curiam – Juvenile Dependency – Termination of Parental Rights was Proper
The court upholds a judgment terminating mother’s parental rights for unfitness under ORS 419B.504. The court further holds that termination is in the best interest of the child.
DHS v. R.F., 284 Or App 669 (2017) (per curiam)
Per Curiam – Trial Court Erred in Failing to Conduct OEC 403 Balancing Required
The court accepts the state’s concession that, under current Court of Appeals case law (currently under review at the Oregon Supreme Court), the trial court erred in admitting evidence of defendant’s prior convictions without first conducting OEC 403 balancing at defendant’s request and a new trial is the remedy.
State v. Brown, 284 Or App 671 (2017) (per curiam)
