Oregon Appellate Ct - Sept 21, 2016

Revision as of 16:30, September 22, 2016

State v. Krause, 281 Or App 143 (2016) (Hadlock, C.J.) (Egan, J., dissenting)

State v. Werner, 281 Or App 154 (2016) (Duncan, P.J.)

Jury Concurrence Instruction - Defendant Entitled to Instruction in Fourth-Degree Assault Case

In this fourth-degree assault case, the state alleged one assault but argued that defendant caused two distinct physical injuries, accordingly, the trial court erred when it refused to give a jury concurrence instruction. At defendant's trial, the state presented evidence that defendant had injured his girlfriend by causing her to scrape her knee and by putting his hands around her neck and constricting her breathing. These incidents took place at different points on the same night. The state alleged a single assault. Defendant moved for the state to elect a theory, but the trial court denied that motion. Defendant thereafter requested a jury concurrence, or Boots, instruction which would require the jury to agree to the underlying physical injury. The court holds that where, as here, the state does not elect a theory and the evidence permits the jury to find multiple, separate occurrences of the single crime, a concurrence instruction is required.

State v. Teagues, 281 Or App 182 (2016) (Duncan, P.J.)

Sufficiency of Evidence - Evidence Sufficient to Prove Knife Contained a Spring

The court affirms the denial of defendant's motion for judgment of acquittal on charges stemming from his possession of a knife having a blade that projects or swings into position by force of a spring. Defendant argued that the state did not prove that there was a spring in the knife. The trial court inspected the knife, remarked that it was named a "Tac-Force Speedster Model," and described that the blade of the knife "quickly * * * comes into position" by pressing a "nub" on the outside of the blade. The court explains that a "spring" is not defined by its shape but by its function - it recovers its original shape when released after being distorted. Here, the court concludes, there is sufficient evidence that defendant's knife moved the blade into position by use of a spring, even if the exact nature of the spring was unknown.

State v. Markwell, 281 Or App 196 (2016) (Duncan, P.J.)

Admissibility of Confession - Defendant's Statements Induced by Threats

The court holds that defendant's pre and post-Miranda statements should have been suppressed. Defendant participated in a bank fraud scheme for which he was convicted of theft. When the scheme was discovered, an officer went to defendant's home and questioned him. The officer told defendant, who was in the National Guard, that "this matter can be handled on the state level and not under the military code. And I have not spoken to your commanding officer." Defendant thereafter made incriminating statements. He was then brought to the police station and administered warnings. Defendant made additional incriminating statements.

Under ORS 136.425(1), a confession is unreliable when it was made "under the influence of fear produced by threats." Here, the court concludes, defendant's statement was induced by the officer's threat to tell his commanding officer if defendant did not cooperate, or put another way, his promise not to tell defendant's commanding officer if defendant did cooperate. Additionally, Miranda warnings were not sufficient to dispel the coercive effect of the threat. The threat occurred close in time to the warnings, and nothing occurred which would have indicated to defendant that the threat had disappeared.

State v. Belle, 281 Or App 208 (2016) (Egan, J.)

State v. Stout, 281 Or App 263 (2016) (Shorr, J.)

Probation Revocation - Probationer Does Not Have Due Process Right to Discovery of his Probation File

The court holds that the due process rights afforded to probationers facing revocation proceedings do not include the right to discovery of exculpatory evidence in a probation file, when that file is not used by the state in the revocation proceedings. Here, the state did not use the probation file and instead called defendant's probation officer to testify to the violations. Defendant asserted that he had a Fourteenth Amendment right to review his probation file and was prejudiced by the state's denial of that right. The court notes that a defendant facing revocation proceedings is entitled to fewer due process rights than a defendant facing criminal charges, and the rights previously recognized do not include the right to seek discovery of a probation file that the state does not use as evidence.

State v. Presock, 281 Or App 277 (Shorr, J.)

Dependency - Termination of Parental Rights - Assertion of Jurisdiction and Termination of Rights was Proper

Although the court had earlier reversed the juvenile court's jurisdiction under a 2014 petition, the court concludes that the juvenile court properly had jurisdiction under a 2015 petition and further concludes that because jurisdiction was proper, there was no error in terminating father's parental rights. First, the court concludes that the 2015 finding of jurisdiction was independent of the 2014 finding that was ultimately reversed. The court also finds that the trial court did not plainly err in failing to consider mother's ability to parent at the 2015 hearing.

With respect to father's challenge to the termination of his parental rights, the court initially concludes that the judgment is appealable and rejects the state's argument that father's appeal was procedurally barred because he failed to appear for his TPR trial. The court concludes that father did appear, earlier, to answer the petition and therefore he could appeal the TPR determination. However, the court concludes that father's appeal fails on the merits because it was also not inextricably tied to the 2014 dependency petition.

Dept. of Human Services v. B.P., 281 Or App 218 (2016) (Egan, J.)

Dept. of Human Services v. S.C.T., 281 Or App 246 (2016) (Devore, J.)

Porter v. Board of Parole, 281 Or App 237 (2016) (Devore, J.)