Oregon Appellate Ct - Feb 1, 2017
by: Sara Werboff • February 5, 2017 • no comments
Garner v. Premo, 283 Or App 494 (2017) (Hadlock, C.J.)
State v. Runnels, 283 Or App 512 (2017) (Armstrong, P.J.)
State v. Madden, 283 Or App 524 (2017) (Sercombe, P.J.)
State v. Rodriguez, 283 Or App 536 (2017) (Sercombe, P.J.)
Defendant Entitled to Judgment of Acquittal for Stalking Because Contact was Not Repeated
The court reverses defendant's stalking conviction because the unwanted contact with H, her ex-boyfriend, was not repeated. The contacts were as follows: defendant knocked on H's door but received no answer. Later that day, defendant went to H's house again to ask for property she had left there. Defendant then sent letters and text messages that did not contain threats. Defendant then accelerated her vehicle towards H. Only the last contact was actionable. Because there was only a single actionable contact, and stalking requires two or more such contacts, defendant was entitled to an acquittal.
State v. Sahli, 283 Or App 545 (2017) (Sercombe, P.J.)
Sentencing - Delivery and Possession Counts Did Not Merge - Probation Condition Permitting Walk-Through of Home Not Unconstitutional
The court affirms defendant's convictions and sentence for delivery and possession of methamphetamine. For both counts, the state alleged that they were commercial drug offenses and involved substantial quantities as subcategory factors to enhance defendant's sentence. Defendant acknowledged that ordinarily guilty verdicts for delivery and possession do not merge, but argued that they should here because, as charged, both counts required the state to prove that defendant possessed more than eight grams of methamphetamine. The court explains that defendant's argument presupposes that sentencing enhancement factors are elements, which is contrary to case law. Because the sentencing enhancement factor was not an element, the trial court did not err in failing to merge the guilty verdicts.
The court also rejects defendant's constitutional challenge to a probation condition requiring her to "permit the probation officer to visit the probationer or the probationer's work site or residence and to conduct a walk through of the common areas and of rooms in the residence occupied or under the control of the probationer." Defendant asserted that the condition effectively authorizes suspicionless searches and is therefore facially unconstitutional under Article I, section 9, and the Fourth Amendment. The court explains that as a probationer, defendant is subject to additional restrictions and invasions that would be unlawful if imposed on law-abiding citizens. Further, the condition does not give the probationer officer unfettered discretion to search defendant's home for evidence of criminal activity. Instead, the home-visit provision serves a distinct supervisory function that promotes the state's interest in rehabilitating probationers. The court concludes that the probation condition does not violate Article I, section , or the Fourth Amendment.
State v. Scott, 283 Or App 566 (2017) (Garrett, J.)
Juvenile Dependency - Juvenile Court Erred in Changing Permanency Judgment
The court concludes that the juvenile court erred in determining that compelling reasons to defer filing a termination of parental rights petition were not present and therefore the juvenile court erred in changing the permanency plan from reunification to adoption. This case involves mother's second child; the court recently addressed nearly identical issues concerning another of mother's children in DHS v. S.J.M., 283 Or App 367 (2017) ("S.J.M. I"). Here, as in S.J.M. I, the court concludes that the juvenile court correctly ruled that mother failed to make sufficient progress in services to allow her child, L, to return safely home. But the court further concludes that the juvenile court erred in concluding that there were no compelling circumstances to defer termination because there was insufficient evidence to support that determination. For example, there was no evidence that it would be unreasonable for mother to have additional time to become a suitable parent.
DHS v. S.J.M., 283 Or App 592 (2017) (DeHoog, J.)
Per Curiam - Attorney Fees - Trial Court Plainly Erred in Imposing Attorney Fees
The court accepts the state's concession that the trial court plainly erred in imposing $1,144 in court-appointed attorney fees and exercises its discretion to correct the error in light of the amount of fees, defendant's lengthy prison sentence, and the fact that the record would not support a finding that defendant could pay the fees.
State v. Ortiz, 283 Or App 610 (2017) (per curiam)
Per Curiam - State Failed to Prove that Defendant Violated Restraining Order
The court concludes that defendant was entitled to a judgment of acquittal on a contempt charge alleging he violated a FAPA order. The order precluded defendant from coming within 150 feet of the petitioner's current or future residence. The order withheld the address for safety reasons and instead supplied a "safe contact" address where defendant was to mail emergency monetary assistance. Defendant showed up at that address and was charged with contempt. The state concedes that it failed to prove that defendant violated the order because it did not present any evidence that the safe contact address was the petitioner's current or future address and the order did not prohibit defendant's presence at the safe contact address.
State v. Ugalde, 283 Or App 612 (2017) (per curiam)
Per Curiam - Civil Commitment - Reversal Required for Failure to Advise of Rights
The court accepts the state's concession that the trial court plainly erred when it failed to advise appellant of his rights under ORS 426.100(1).
State v. M.M.P., 283 Or App 615 (2017) (per curiam)
