Oregon Appellate Ct - Aug 23, 2017
by: Sara Werboff • August 28, 2017 • no comments
State v. George, 287 Or App 312 (2017) (Ortega, P.J.)
State v. Bennett, 287 Or App 338 (2017) (DeVore, J.)
State v. Parsons, 287 Or App 351 (2017) (DeVore, P.J.)
State v. Garlitz, 287 Or App 372 (2017) (Lagesen, J.)
Search and Seizure – Warrantless Entry Into Home Not Justified by Emergency Aid Exception – Defendant Did Not Consent
The court concludes that defendant was entitled to suppression of evidence of an assault because police were not justified in entering his home without a warrant. When police responded to a call concerning a domestic dispute, defendant was outside and the victim was inside and upstairs where she felt safe. An officer told defendant that she would be going into the house to check on the victim and defendant said “go ahead, she’s inside.” The officer testified that they entered to see if anyone inside was injured or whether a crime had been committed. The court concludes that the entry was not justified by the emergency aid exception because there was no evidence that the officers subjectively believed that the victim had suffered serious physical injury and was in need of immediate assistance. The court further concludes that defendant’s statement to the officer to “go ahead” inside was acquiescence to the officer’s stated intention to go inside, and was not voluntary consent.
State v. Stanley, 287 Or App 399 (2017) (Garrett, J.)
Forged Permanent Resident Card and Social Security Card Were Not “Valuable Instruments”
The court reverses defendant’s conviction for possession of a forged instrument after concluding that the permanent resident card and social security card were not “valuable instruments” under ORS 165.013(1)(a)(A). The state proceeded against defendant under the theory that the documents were “part of an issue of money, securities, postage or revenue stamps, or other valuable instruments issued by a government or governmental agency.” Defendant argued that the documents must had inherent pecuniary value. The court agrees and explains that it had earlier determined that it had rejected a construction of valuable instruments that rendered it a broad catchall for any government-issued instrument. A valuable instrument refers to instruments that are “inherently valuable” and “issued in large or discrete series.” The documents at issue here did not meet that standard.
State v. Gonzalez-Aguilar, 287 Or App 410 (2017) (Garrett, P.J.)
Contempt – Sufficient Evidence to Prove Defendant Knowingly Violated Court Order
The court concludes that there was sufficient evidence for a factfinder to determine that defendant violated a court order. Defendant was sentenced to probation for multiple domestic violence offenses against the victim. One condition, announced in court, was that defendant continue to abide by the victim’s restraining order, which prevented defendant from being in her apartment. The trial court also ordered that defendant stay away from the apartment unless he had prior written permission from his probation officer. Defendant later met with a probation officer that was not assigned to his case, and told the officer that he lived at the apartment. The officer wrote in an “action plan” that defendant was to reside at a shelter, or alternatively, at the apartment if the victim was not there. Defendant went to the apartment where he was found and arrested.
The court rejects defendant’s argument that the state failed to prove a bad intent because he had permission from a probation officer to be in the apartment. The court notes that defendant concealed the existence of the restraining order from the officer. Defendant also was expressly told by the trial court to follow the terms of the restraining order. A factfinder could therefore infer that defendant was aware of the restraining order, or alternatively, that he had not obtained genuine permission to enter the apartment.
State v. Beleke, 287 Or App 417 (2017) (Garrett, J.)
Post-Conviction Relief – Remanding for Consideration of Whether Counsel Made a Considered Choice Not to Introduce Bias Evidence and Whether Counsel’s Failure to Contact Petitioner Prejudiced Him – Counsel’s Bar Disciplinary Records Were Admissible
The court remands this PCR case to the PCR court to decide in the first instance whether trial counsel’s failure to introduce emails between petitioner and the victim was a strategic choice. Petitioner was convicted of domestic violence crimes. Trial counsel had emails between petitioner and the victim where the victim threatened to ruin petitioner’s life. Counsel did not introduce the emails but used them during cross-examination of the victim. The court notes that the emails would have provided persuasive evidence in support of petitioner’s case theory, but that the emails also contained unflattering evidence about petitioner. The court therefore remands to the PCR court to determine whether the failure to introduce the emails was a result of a reasonable strategic choice following an adequate investigation.
The court also remands for the trial court to determine whether trial counsel’s failure to meet with petitioner until the night before his trial prejudiced him. The court explains that the failure, while clearly deficient performance, is not structural error and petitioner must show prejudice.
Finally, the court concludes that trial counsel’s bar disciplinary records were admissible in the PCR case because they were relevant to whether counsel had made a deliberate strategic choice not to introduce the emails.
Johnson v. Taylor, 287 Or App 424 (2017) (Flynn, J.)
Post-Conviction Relief – Statutory Interpretation – Unloaded Firearm Does Not Qualify as Deadly Weapon
The court concludes that trial counsel rendered ineffective assistance of counsel in petitioner’s underlying first-degree burglary trial when they failed to challenge the sufficiency of the state’s evidence that petitioner possessed a “deadly weapon” during the offense. In the underlying case, the state charged petitioner with committing a burglary while armed with a deadly weapon. During the offense, petitioner stole an AR-15 that was functional but unloaded and kept in a closed, zippered carry bag. Petitioner also took another bag which contained ammunition for the AR-15 and several other firearms. Petitioner was convicted of the burglary and was also sentenced to a higher grid block in light of the finding that he possessed a deadly weapon.
During post-conviction proceedings, petitioner asserted that trial counsel was ineffective for failing to challenge the evidence that he possessed a deadly weapon. The court, employing the customary statutory interpretation analysis, agrees with petitioner’s reading of “deadly weapon.” Specifically, the court determines that a weapon “presently capable” of causing death is a weapon that is immediately capable of doing so. Because the AR-15 was unloaded and in its carrying case, separated from its ammunition, it was not presently capable of causing death. The court further concludes that reasonable counsel would have raised the challenge to the evidence at the time of petitioner’s trial. The court disagrees that petitioner would have been entitled to an outright acquittal of the first-degree burglary charge but agrees that he was prejudiced because he was subject to a harsher sentence. The court grants relief in the form of resentencing.
Norwood v. Premo, 287 Or App 443 (2017) (Linder, S.J.)
Per Curiam – Error to Instruct Jury to Consider 9-1-1 Statements As Substantive Evidence
The court accepts the state’s concession that the trial court erred when it instructed the jury that it may consider the victim’s out-of-court statements to a 9-1-1 dispatcher as substantive evidence, when the statements were admissible only to impeach the victim’s trial testimony. The court further concludes that the error was harmless as to one of defendant’s convictions and remands for resentencing.
State v. Burns, 287 Or App 459 (2017) (per curiam)
Per Curiam – Jury Instructions – Plain Error in Failing to Instruct on Culpable Mental State
The court reverses defendant’s conviction for unlawful use of a vehicle when the trial court failed to instruct the jury that it must find that defendant knowingly used a vehicle without consent of the owner.
State v. Perez-Rodriguez, 287 Or App 461 (2017) (per curiam)
Per Curiam – Any Error in Admitting Evidence was Not Prejudicial
The court rejects defendant’s challenge to the admission of text messages. The trial court admitted the messages as relevant to only one issue, and so instructed the jury. Ultimately that issue was not presented to the jury. During closing, both the state and defendant acknowledged that the messages could be relevant to a different issue. In light of that admission, defendant failed to establish that admitting the messages was prejudicial error.
State v. Reed, 287 Or App 463 (2017) (per curiam)
