Oregon Appellate Ct - Sept 8, 2016

Revision as of 11:47, September 12, 2016

Sufficiency of Evidence - Insufficient Evidence to Prove that Defendant Possessed Dangerous Weapon

Because there was no evidence that defendant used, attempted to use, or threatened to use an altered spoon in a way that was readily capable of causing death or serious physical injury, defendant was entitled to an MJOA on a dangerous weapon allegation. Defendant, an inmate, was found in possession of a "debatably sharpened" spoon that he contended he used to extract a wad of toilet paper from his ear. The state alleged that defendant possessed a weapon, and further alleged that it was a dangerous weapon. The state argued that because the spoon was "readily capable of causing physical injury" it satisfied the standard for a "dangerous" weapon. Defendant argued that a because a dangerous weapon is an object designed for another purpose that "if used in a manner rendering it capable of causing" death or serious physical injury, the state was required to prove that defendant used, attempted to use, or threatened to use the spoon as a weapon. The court agrees with defendant and rejects the state's interpretation of dangerous weapon.

State v. Hoard, 280 Or App 721 (2016) (Devore, J.)

Lesser-Included Offense Instruction - Defendant Entitled to Attempt Instruction on Possession of Weapon and Contraband Charges

Defendant was entitled to a lesser-included offense instruction of attempted possession of a weapon and possession of contraband charges when the state alleged that defendant, an inmate, possessed a sharpened spoon. The state argued that the spoon was a completed version of a shank, and defendant argued that the jury could find that he merely attempted to possess what had not yet become a weapon. Because there was evidence that the spoon was not yet a weapon (and therefore not yet contraband), the trial court erred in failing to give a lesser-included offense instruction.

State v. Hoard, 280 Or App 721 (2016) (Devore, J.)

Sufficiency of Evidence - Evidence Sufficient for Aiding and Abetting Theory

Evidence was sufficient to convict defendant of possession of controlled substances on a aiding and abetting theory. Defendant drove two friends to the Bayocean Spit, where he remained for several hours while his friends harvested psilocybin mushrooms. As defendant was driving his friends away from the Spit, he was stopped by police. The court concludes that a rational jury could conclude that defendant intended to promote or facilitate the possession of the mushrooms. Although there was no direct evidence that defendant knew his friends would be harvesting mushrooms, there was sufficient circumstantial evidence for the jury to infer that defendant and his friends planned together in advance.

State v. Williamson, 280 Or App 803 (2016) (Flynn, J.)

Juvenile Dependency - Court Failed to Apply Proper Standard to Determine Jurisdiction of Oregon Courts

The court concludes that the trial court applied the wrong analysis to determine jurisdiction in this dependency case when the trial court applied the standard for determining venue inside Oregon instead of applying the test for jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The UCCJEA sets forth rules for determining jurisdiction when a custody case involves multiple jurisdictions. When the mother objected to jurisdiction in Oregon, the trial court denied the objection and, without holding an evidentiary hearing, concluded that the evidence satisfying the venue residency requirement properly gave the trial court jurisdiction. The state conceded that the trial court applied the wrong standard but argued that the court must presume that the trial court implicitly resolved the issue. The court rejects that argument and holds that no presumption applied because the trial court did not apply the correct legal analysis.

Department of Human Services v. R.M.S., 280 Or App 807 (2016) (Flynn, J.)

Appeal and Review - Revocation of Conditional Discharge Not Reviewable on Appeal

The court dismisses defendant's appeal from the revocation of conditional discharge after concluding that review is precluded by ORS 138.050. Defendant pleaded guilty to PCS and entered into a drug court program. The trial court entered a judgment of conditional discharge which convicted defendant but the conviction was not entered. The trial court also imposed 18 months of probation. Defendant repeatedly failed to comply with the terms of the conditional discharge but it was not revoked. The probation term ultimately expired, however, neither the state nor defendant moved to discharge the conviction. Defendant again failed to comply and, several months after probation expired, the trial court revoked the conditional discharge, convicted defendant, and imposed 18 months of probation. Defendant appealed.

The court holds that the limitations on appeal following a guilty plea in ORS 138.050 preclude review of defendant's appeal. Defendant had argued that review was permitted under ORS 138.053(3), which allows review of orders extending, modifying, or revoking probation if defendant shows a colorable claim of error. The court rejects that argument because here, defendant was appealing the entry of a judgment of conviction, and defendant had pleaded guilty.

State v. Herrera, 280 Or App 830 (2016) (Haselton, S.J.)

Sufficiency of Pleadings - Inmate's Filing Stated Claim for Conversion

After an inmate filed a document in circuit court asserting that he was wrongfully deprived of his property and requesting return of the property or $600 in compensation, the trial court dismissed the document for failing to state a claim. The court reverses the dismissal, holding that the inmate's filings were sufficient to state a claim for conversion.

Spillino v. Taylor, 280 Or App 700 (2016) (Duncan, P.J.)

Civil Commitment - Sufficiency of Evidence - Per Curiam

State conceded that evidence was legally insufficient for involuntary commitment and the court reverses the judgment.

State v. G.B., 280 Or App 845 (2016) (per curiam)