Oregon Appellate Ct - Nov 2, 2016
by: Sara Werboff • November 4, 2016 • no comments
First-Degree Criminal Mistreatment - "Takes" Under Statute Does Not Require Intent to Permanently Deprive
State v. Browning, 282 Or App 1 (2016) (Duncan, P.J.)
Sentencing - Court Lacked Authority to Impose No-Contact Order for Incarceration and PPS Sentence
State v. Hall, 282 Or App 9 (2016) (Duncan, P.J.)
Juvenile Dependency - Insufficient Evidence of Risk of Harm to Children's Welfare
The court reverses a juvenile dependency judgment against mother and father because the evidence is insufficient to support the juvenile court's determination that there is a current risk of harm to the children. Mother and father are married and have two children. Mother reported to her therapist that father had threatened suicide and homicide. The therapist determined that father was subjecting mother to emotional abuse, which she considered to be a form of domestic abuse, and reported father to DHS. DHS initially filed a dependency petition against father, but then added mother when it determined that mother's wish to reunite the family also created a risk of harm to the children. At the dependency hearing, the DHS caseworker testified generally that domestic abuse is harmful to children.
The court concludes that the evidence was not sufficient for the juvenile court to conclude that the threat of harm to the children was serious and reasonably likely to be realized. A child must be exposed to "danger, that is, conditions or circumstances that involve being threatened with serious loss or injury" and the threat of harm cannot be speculative. Here, while there was evidence of domestic abuse by father of mother, and that conflict has affected the children, there was no evidence of a present risk of serious harm that is reasonably likely to occur.
DHS v. K.C.F., 282 Or App 12 (2016) (Duncan, P.J.)
Appeal and Review - Order Determining that Defendant's Statements are Confessions is Not Appealable
The state sought to appeal an order denying the state's motion in limine to allow defendant's statements to be admitted as admissions, and moved the court for a determination of appealability. The court concludes that the order is not appealable and dismisses the appeal. Defendant is charged with sodomy and sexual abuse. Defendant made many inculpatory statements to his ex-girlfriend concerning the abuse. Before trial, the state moved in limine to have those statements admitted as admissions, which do not require corroboration, instead of confessions, which do require corroboration. The trial court concluded that defendant's statements were confessions.
Under ORS 138.060, the state can appeal only from certain pretrial orders, including when the trial court suppresses evidence. Here, however, the trial court did not suppress the statements, but rather determined that those statements were admissible only if the state produced corroborating evidence. Thus, the order is not appealable.
State v. Wenning, 282 Or App 21 (2016) (Egan, P.J.)
403 Balancing - Reversal Required Because Record Did Not Establish that Court Conducted Balancing
State v. Anderson, 282 Or App 24 (2016) (Flynn, J.) (Devore, J., dissenting)
Contempt - Evidence Did Not Show that Defendant "Willfully" Violated Restraining Order
The court reverses a contempt judgment, concluding that the facts found by the trial court precluded a finding that defendant's violation of a FAPA restraining order was "done willfully" under ORS 33.015(2)(b). Defendant's husband got a restraining order against defendant. The husband and defendant thereafter tried to reconcile, and the husband told defendant that he went to court and dismissed the restraining order. Defendant and her husband went on a trip, where they were pulled over by police. Police discovered the restraining order, which had not been dismissed, and defendant was arrested and charged with contempt. During defendant's contempt hearing, the trial court expressly credited defendant's testimony that she believed in good faith that the order had been dismissed. Nonetheless, the trial court found that defendant willfully violated the order.
The court interpreted the term "done willfully" in the statute and determined that the legislative history was dispositive. In 1991, the legislature explained that willfully meant "intentionally and with knowledge that it was forbidden conduct." That definition was expressly memorialized as part of the legislative history as guidance. In this case, because defendant believed in good faith that she was no longer bound by the restraining order, she did not act willfully when she violated it and the trial court erred in entering a contempt judgment.
State v. Nicholson, 282 Or App 51 (2016) (Haselton, S.J.)
Per Curiam - Reversing "Mandatory State Amt"
The court accepts the state's concession that the trial court lacked authority to impose a "mandatory state amt" as a separate assessment.
State v. Knight, 282 Or App 64 (2016) (per curiam)
Per Curiam - Reversing Compensatory Fine
The court accepts the state's concession that the record was insufficient to support the award of a $2,000 compensatory fine.
State v. Higgins, 282 Or App 66 (2016) (per curiam)
Per Curiam - Reversing Attorney Fees
The court reverses as plain error a $200 attorney fee award because the record was silent as to defendant's ability to pay fees and because the erroneous imposition of fees was a substantial hardship to defendant.
State v. Caldwell, 282 Or App 68 (2016) (per curiam)
Per Curiam - Civil Commitment - Insufficient Proof for Civil Commitment
The court accepts the state's concession that the record was legally insufficient to support the appellant's involuntary commitment.
State v. C.A.S., 282 Or App 70 (2016) (per curiam)
