Oregon Appellate Ct - Aug 3, 2016

Revision as of 18:15, August 6, 2016

Disorderly Conduct - Physically Offensive Condition Means Creating Unpleasant Sensory Effects

The court held that the disorderly conduct statute “was intended to apply to conditions whose sensory features cause people exposed to them to experience unpleasant effects.” Defendant was convicted of second-degree disorderly conduct following an incident where defendant, on public transportation during rush hour, made lewd comments to and masturbated in the direction of a female passenger. The state argued that a physically offensive condition reaches conduct that, “because it is morally or intellectually offensive, creates unpleasant physical sensations in the people exposed to it.” The court rejected that broad definition, holding that despite the fact that the passenger could see and hear, it was nonetheless not a sensory ... the state failed to meet its burden of proof in this case because defendant’s conduct would not cause unpleasant sensory effects, even if it caused physical effects such as disgust.

State v. Hawkins, 260 Or App 26 (2016) (Armstrong, J.)

Search & Seizure - Silence is Not an Unequivocal Manifestation of Intent to Abandon Property

In order to relinquish a person’s constitutionally protected interest in an item, that person must unequivocally manifest an intention to do so. The court will not infer that intentional relinquishment from the person’s silence. An officer encountered defendant next to a parked van. The van was not registered. In response to questioning, defendant told the officer that the van belonged to his friend. The officer called the van’s owner, who gave the officer permission to search the van. The officer asked defendant if he had any belongings in the van and defendant said all the bags with clothing in them belonged to him. The officer searched the van, excluding the bags defendant described, and found a container holding methamphetamine that defendant then admitted was his. The state bears the burden of proving that the defendant abandoned his constitutionally protected interest in the item. Because there was no evidence that defendant disclaimed ownership of the container, the search of the container was unlawful.

State v. Jones, 280 Or App 135 (2016) (Wilson, S.J.)

Search & Seizure - Scope of Consent to Patdown - Officer Safety

The police exceeded the scope of defendant’s consent to a patdown by reaching into defendant’s pocket to remove a hard object. The search also was not justified by officer safety concerns. A patdown is generally sufficient to alleviate officer safety concerns, and any step beyond that must be supported by reasonable suspicion, based on specific and articulable facts, that the person poses a serious threat of harm and a further search would eliminate that threat. Here, the court concluded, the officer’s safety concerns that methamphetamine users are unpredictable and pose safety risks, were too generalized. Defendant’s cooperative conduct and characteristics, the nature of the object itself, and the surrounding circumstances of the stop did not support the state’s contention that defendant posed a safety risk.

State v. Musalf, 280 Or App 142 (2016) (Wilson, S.J.)

Hearsay from Confidential Informant - Opening the Door - Harmless Error

The trial court erred in admitting a police officer's testimony relating hearsay statements from CI linking defendant to stolen firearms and methamphetamine. The state below argued that the hearsay was admissible because defendant opened the door by attacking the CI's reliability. The court concluded that defendant's attack on reliability did not create an unfair impression and did not open the door. Additionally, the hearsay testimony did not serve to rehabilitate the CI. On appeal, the state argued that the error was harmless. The court concluded error was not harmless as to theft because the hearsay statements provided the only direct evidence that defendant knowingly possessed a stolen firearm, but was cumulative of other evidence concerning methamphetamine charge.

State v. Henderson-Laird, 280 Or App 107 (2016) (Egan, J.)

First-Degree Criminal Mistreatment - Taking of Elderly Person's Money Does Not Include Accepting Gifts - First Impression

When a person is charged with first-degree criminal mistreatment by “tak[ing] the [elderly person’s] money or property for, or appropriat[ing] the money or property to, any use or purpose not in the due care and lawful execution of the person’s responsibility[,]” ORS 163.205(1)(b)(D), the state must prove that the person did not obtain that money through the voluntary consent of the elderly person, i.e., as a gift. Defendant cared for a wealthy elderly woman. The woman gave defendant several checks for substantial amounts of money. After the woman died, the checks were discovered and defendant was charged with first-degree criminal mistreatment. The state argued that the criminal mistreatment statute precluded any taking of an elderly person’s money, even if it was voluntarily given. “Takes” in criminal law is “generally understood to be limited to transfers of property that are effected without the consent of the owner of the property.” The legislature tried to craft a provision that was “broad enough to cover abuse without being overly inclusive” and did not intend to criminalize gifts.

State v. Bevil, 280 Or App 92 (2016) (Duncan, P.J.)

Assault IV - Physical Injury - Sufficiency of Evidence - Per Curiam

Youth argued that no reasonable fact-finder would be able to conclude that he had caused “physical injury” to the victim, a required element of fourth-degree assault. The state conceded no physical injury but argued that youth was still properly within the jurisdiction of the juvenile court for attempted fourth-degree assault. The court reverses youth’s juvenile delinquency judgment for fourth-degree assault and remands with instructions to enter a delinquency judgment for attempted fourth-degree assault.

State v. M.S.T-L, 280 Or App 167 (2016) (per curiam)

Merger - Trial Court Can Find Sufficient Pause from Defendant's Guilty Plea to Date Range - Per Curiam

Because defendant had pleaded guilty to committing a crime within a range of dates, the trial court may consider that crime to have been committed on any of the dates within the range, and therefore, the trial court could find for the purposes of merger that the identity thefts occurred on different dates and were separated by a sufficient pause.

State v. White, 280 Or App 170 (2016) (per curiam)

Jury Instructions Including Theories Not Alleged in Indictment are Erroneous - Per Curiam

A jury instruction that allows the jury to convict on a basis not alleged in the indictment violates Article VII (Amended), section 5, of the Oregon Constitution and is not harmless when the state argues to the jury that it may convict defendant under either theory.

State v. Warren, 280 Or App 164 (2016) (per curiam)

Search & Seizure - Unlawful Extension of Stop - Per Curiam

An officer's authority to detain defendant dissipated when he concluded their investigation of the DUII and the traffic infraction, and walking a drug dog around defendant's vehicle without reasonable suspicion that defendant's possessed drugs unlawfully extended the stop.

State v. Hanussak, 280 Or App 161 (2016) (per curiam)