Oregon Appellate Ct - Dec 14, 2016

Revision as of 10:38, December 17, 2016

Merger - Sex Abuse Convictions Merged Because There Was No Sufficient Pause Between Acts

The court concludes that merger was required for two guilty verdicts for first-degree sexual abuse. Defendant groped his neighbor over the course of about 10 minutes, by grabbing her breasts and her vaginal area. The state contended that defendant committed two discrete acts, and it was not part of an uninterrupted course of conduct. The court, relying on its decision in State v. Nelson, 282 Or App 427 (2016), rejects that argument. The state alternatively argued that the touching was not simultaneous, it was sequential, and therefore separated by a pause. Again relying on Nelson, the court concludes that merger of guilty verdicts of multiple acts of sex abuse is appropriate where, as here, the conduct occurred in one location, without interruption by any significant event, and without a pause in the defendant's aggression. Neither defendant's ability to retreat nor the sequential nature of the touching established that something of significance occurred between the touching, and the state failed to establish that there was a sufficient pause between the acts of touching.

State v. Dugan, 282 Or App 768 (2016) (Duncan, P.J.)

Sentencing - Indeterminate Life Sentence with 25-Year Minimum is Proper Sentence for Murder

In this state's cross-appeal, the court concludes that the trial court correctly sentenced defendant to an indeterminate life sentence with a 25-year minimum term of confinement. At defendant's trial, the state pleaded and proved several sentencing enhancement factors that brought defendant's guidelines sentence to 538 months (nearly 45 years). The state argued that the trial court had discretion to impose an indeterminate life sentence with a 538-month minimum term of confinement. The trial court concluded that under ORS 163.115(5)(a) and (b), it could impose the indeterminate life sentence with a 25-year minimum. The court affirms the trial court and rejects the state's argument after reviewing the text, context, legislative history, and historical background of the murder sentencing statute. The court concludes that the legislature intended an offender convicted of murder to be sentenced to an indeterminate life sentence with a 25-year minimum term of incarceration, and did not intend for the trial court to rely on the guidelines or any other source for establishing that minimum term of confinement.

State v. Ambill, 282 Or App 821 (2016) (Lagesen, J.)

Drug Sentencing Enhancement - State Need Only Show that Defendant Attempted to Transfer for Consideration for Purposes of ORS

State v. Stewart, 282 Or App 845 (2016) (Garrett, J.)

Civil Commitment - Appellant Failed to Preserve Argument That, Because He Was in Jail, He Could Meet Basic Needs

The court affirms appellant's civil commitment order and the trial court's finding that appellant could not meet his basic needs. The court concluded that appellant, who was in jail at the time, would be unable to meet his needs if he were released. On appeal, appellant argued that the state failed to present any evidence of when he would be released from jail and therefore the court could not have concluded that his near-term survival was in jeopardy. The court concludes that appellant failed to preserve that argument when he made a general argument challenging the sufficiency of evidence. Had appellant made that specific point below, the state and the trial court would have had the opportunity to address the issue.

Judge Duncan dissents, finding that the argument was preserved by appellant's argument that he was capable of meeting his basic needs. Additionally, finding that the argument is preserved, Judge Duncan also finds that the evidence was insufficient to support the civil commitment.

State v. K.J.B., 282 Or App 862 (2016) (Garrett, J.) (Duncan, P.J., dissenting)

Disorderly Conduct - Insufficient Evidence that Defendant Engaged in Physical Act of Aggression

The court concludes that the state failed to prove that defendant committed second-degree disorderly conduct under ORS 166.025(1)(a) - by engaging in fighting, or in violent, tumultuous or threatening behavior. Defendant picked up and hugged the young daughter of his neighbor. Defendant became distraught and cried as he hugged her, and told her he "wanted a girl as pretty" as her. The girl explained that defendant had hugged her like her mother does, and it made her feel "weirded out." The girl's father, who observed the incident, said he was upset at first but then noted that defendant was crying and distraught and he did not want to escalate the situation. Defendant walked away after hugging the girl. Defendant thereafter left a letter to the girl containing a contract of sorts for the girl to sign and agree to tell her father if she was ever touched inappropriately. This letter angered the girl's father.

The court notes first that purely communicative conduct cannot form the basis of a conviction under ORS 166.025(1)(a). Instead, the state must show that a defendant used physical force, or engaged in physical conduct immediately likely to produce the use of physical force. The court first rejects the state's contention that defendant's physical act of leaving the letter supported his conviction. The statute does not reach physical acts that are actual but incidental to speech. The court next rejects the state's argument that defendant's physical act of hugging the girl supported the conviction because there was no physical aggression, and because defendant's actions were not perceived by either the girl or her father as outwardly threatening.

State v. Hosley, 282 Or App 880 (2016) (Flynn, J.)

Invited Error - Defendant Could Not Obtain Reversal of Trial Court's Denial of DNA Testing Because He Invited the Error

Defendant sought DNA testing by providing an affidavit in which he asserted that the victim's clothing should be tested to determine if bodily fluids were on her clothing and if so, who those belonged to. Defendant argued that the absence of bodily fluids would be highly probative evidence contradicting the victim's account. The state responded that defendant's motion was legally insufficient because he did not establish a prima facie showing that favorable lab results would establish his actual innocence. Defendant responded. Both the state and defendant made arguments referring to the standards set forth in Schlup v. Delo and House v. Bell in their interpretation of actual innocence, in particular, defendant relied on House and the trial court reviewed that case before ruling.

On appeal, defendant argues that the trial court's reliance on the Schlup/House standard was wrong. The court explains that this is a "quintessential" case of invited error. Because defendant argued that the House standard was applicable, he cannot now complain that the trial court applied it. NB: The court does not rule as to whether the Schlup/House standard is actually correct.

State v. Rogers, 282 Or App 888 (2016) (Haselton, S.J.)

State v. Scott, 282 Or App 896 (2016) (Wilson, S.J.)

Jensen v. Premo, 282 Or App 905 (2016) (per curiam)

State v. Davidson, 282 Or App 907 (2016) (per curiam)

State v. Cross, 282 Or App 910 (2016) (per curiam)

State v. Miles-Langston, 282 Or App 913 (2016) (per curiam)

State v. Hurst, 282 Or App 915 (2016) (per curiam)

State v. Martinez, 282 Or App 917 (2016) (per curiam)