Articles Posted in Criminal Law

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Law enforcement officers seized and searched defendant Catalin Dulfu's computer and duplicated its hard drive. During a search of the duplicated hard drive, a forensic investigator discovered computer files containing visual recordings of sexually explicit conduct involving children. The state charged defendant with crimes based on 15 of the files. Defendant argued on appeal that the trial court erred in calculating his criminal history score under the felony sentencing guidelines. Under the guidelines, prior convictions generally increase a defendant’s criminal history score, unless they arose out of the same criminal episode as the crime for which the defendant is being sentenced. In this case, defendant was convicted of multiple crimes based on child pornography on his computer. Over defendant’s objection, the court increased defendant’s criminal history score after it sentenced him for each of the crimes, until it reached the maximum criminal history score. The Oregon Supreme Court determined a conviction does not count toward a defendant’s criminal history score if, for double jeopardy purposes, it arose out of the same criminal episode as the crime for which the defendant is being sentenced. Therefore, the trial court erred in using defendant's convictions for those crimes to increase his criminal history score as it did. View "Oregon v. Dulfu" on Justia Law

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Defendant Robert Langley, Jr. was convicted on 16 counts of aggravated murder in 1989. The Oregon Supreme Court affirmed 15 of those convictions in Oregon v. Langley, 839 P2d 692 (1992), adh’d to on recons, 861 P2d 1012 (1993) (Langley I), but vacated defendant’s death sentence and remanded his case for a new penalty-phase trial. The Supreme Court has since done so twice more, first in "Langley II," 16 P3d 489 (2000), and "Langley III," 273 P3d 901 (2012). This automatic and direct review proceeding arose as the result of the death sentence imposed on defendant in 2014 following his fourth penalty-phase trial. On review, defendant raised 77 assignments of error, only 12 of which the Supreme Court determined warranted discussion. Those 12 issues encompassed four broad contentions: (1) the penalty- phase trial court judge was, or appeared to be, biased and should not have presided over the proceeding; (2) the court erroneously admitted evidence not specific to defendant regarding the second capital sentencing question set out at ORS 163.150(1)(b)(B); (3) the court failed to expressly preclude jury consideration of aggravation evidence regarding the fourth capital sentencing question set out at ORS 163.150(1)(b)(D); and (4) the court erroneously applied sentencing-only remand provisions in capital cases arising before the United States Supreme Court’s decision in Penry v. Lynaugh, 492 US 302 (1989). Finding no reversible error, the Supreme Court affirmed defendant’s sentence of death. View "Oregon v. Langley" on Justia Law

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This appeal involved two post-conviction relief cases, which arose out of the same underlying criminal case and were consolidated for review. In Bogle v. Oregon, petitioner Tracey Bogle, who was represented by counsel, filed pro se motions pursuant to Church v. Gladden, 417 P2d 993 (1966). The post-conviction court denied the pro se motions, and, after a hearing on the merits of the grounds for relief that counsel had raised, the court denied relief. Petitioner appealed, arguing that the court had erred by failing to consider his pro se grounds for relief or, alternatively, by failing either to instruct counsel to raise them or to make a record of its reasons for not instructing counsel to do so. The Court of Appeals affirmed, holding that petitioner could raise his pro se grounds for relief in a subsequent post-conviction case. Both petitioner and the state petitioned for review, and the Oregon Supreme Court allowed both petitions. On review, the parties disputed what actions a post-conviction court had to take in response to a Church motion. The parties also disputed what effect the filing of such a motion has on whether the petitioner could raise the ground for relief in a subsequent post-conviction case, given that ORS 138.550(3) provided that any ground for relief that was not raised in a petitioner’s first post-conviction case was deemed waived, unless it could not reasonably have been raised in the first case. The Supreme Court held that in a case under facts similar to here, the question for the post-conviction court is whether the petitioner has established that counsel’s failure to raise the ground for relief constitutes a failure to exercise reasonable professional skill and judgment. If so, then the court must exercise its discretion to either replace or instruct counsel. "The purpose of such a motion is for petitioner to seek to have counsel raise the ground for relief in the current post-conviction case; it is not to enable the petitioner to avoid claim preclusion under ORS 138.550(3) and raise the ground in a subsequent post-conviction case." Applying those holdings, the Supreme Court affirmed the judgment of the post-conviction court and the decision of the Court of Appeals in Bogle v. Oregon, although its reasoning differed from that of the Court of Appeals. While Bogle v. State was pending in the post-conviction court, petitioner initiated a second post- conviction case, Bogle v. Nooth. On the state’s motion, the post-conviction court dismissed that case, citing both ORCP 21 A(3), which allowed a court to dismiss an action when “there is another action pending between the same parties for the same cause,” and ORS 138.550(3), which bars successive post-conviction cases. Petitioner appealed, and the Court of Appeals affirmed the post-conviction court’s dismissal under ORCP 21 A(3). Finding the trial court did not plainly err, the Supreme Court affirmed dismissal. View "Bogle v.Oregon" on Justia Law

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Defendant Jacob Bliss sought to suppress evidence discovered in a warrantless search of his car, asserting that, because he had been stopped for a traffic infraction rather than in connection with a crime, the police officer’s failure to obtain a warrant was not excused by the automobile exception to the warrant requirement of Article I, section 9, of the Oregon Constitution. In March 2014, a police officer stopped defendant for speeding after observing him driving 79 miles per hour in a 60-mile-per-hour zone. The officer approached the car and asked defendant for his license and registration. Defendant appeared to be very nervous and he was sweat- ing heavily. A strong odor of marijuana emanated from the car. The officer’s check of defendant’s records revealed that defendant did not own the car, that the license plates on the car were registered to a different car, and that defendant was a state and federal parolee. While the officer questioned defendant, defendant repeatedly reached under the seat. Based on defendant’s conduct and other observations, defendant was ordered out of the car and patted down. The search netted a pipe used to smoke methamphetamine. A test of residue on the pipe affirmed it was methamphetamine. Defendant was subsequently arrested. The trial court ruled that the automobile exception applied and that no warrant was necessary. It therefore declined to suppress the evidence. The Court of Appeals affirmed. Finding no reversible error, the Oregon Supreme Court affirmed. View "Oregon v. Bliss" on Justia Law

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Three people - Debra, Michelle, and Charles - shared a house in Lincoln City. Defendant Adam Anderson needed a place to stay, and Debra and Michelle agreed that defendant could “crash” at their house for a couple of days. The weekend after defendant began staying at their house, Debra tried to withdraw money from her bank account at an ATM but was unable to do so. On Monday morning, Debra checked with the bank and learned that someone had withdrawn $300 from her account at a Wells Fargo ATM and that the personal identification number (PIN) for her account had been changed. She also learned that, six or seven minutes after $300 had been withdrawn from the Wells Fargo ATM, someone had attempted to withdraw additional funds from her account at a nearby Bank of America ATM. After learning that information, Debra went home and found that her emergency ATM card, with her PIN attached, had been taken from the dresser drawer in her bedroom. She also realized that defendant had moved out of her house on Sunday rather than later, as he initially had planned. Debra notified the police, who obtained a surveillance video from the Bank of America ATM. The police showed Debra and Michelle stills taken from the video, which depicted a person attempting to use Debra’s ATM card at the Bank of America ATM and also walking away from the ATM. The stills either do not show the person’s face or do not do so clearly. Despite that fact, both Debra and Michelle identified the person in the stills as defendant, based on the clothing that the person was wearing and the person’s general physical resemblance (height and build) to defendant. To support its claim that it was defendant depicted from images taken at the ATMs, the prosecution offered a booking video taken approximately two weeks after the ATM images. Defendant objected to admission of the video. The Court of Appeal reversed, noting that while the trial court found the video relevant, it did not expressly identify its probative value, or expressly balance the probative value against its prejudicial effect. The Oregon Supreme Court disagreed after review of the trial court record, and was satisfied that pursuant to the applicable case law, the trial court’s use of the word “relevant” served as a shorthand way of describing the trial court’s agreement with the state that the video was very relevant to prove a central issue in the case, and the trial court's statements regarding the video were sufficient to show the court balanced the probative value of the booking video against the danger of unfair prejudice. View "Oregon v. Anderson" on Justia Law

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Police initially suspected defendant William Miller was driving under the influence, and stopped his car. The officer asked defendant for his identification and returned to his own car to conduct a records check. The officer walked back to defendant and asked if he had a firearm with him. In response, defendant indicated that he “had a knife on his boot, or leg.” The officer removed two knives from defendant’s boot. The officer then administered field sobriety tests to defendant. He ultimately determined that defendant was not intoxicated but cited defendant for carrying a concealed weapon. Defendant moved to suppress the evidence that the officer had obtained as a result of his question about weapons. Defendant argued to the trial court that the officer’s question had unlawfully extended the stop because the officer did not possess a “reasonable suspicion, based upon specific and articulable facts,” that defendant posed an “immediate threat of serious physical injury.” In support of that argument, defendant elicited testimony from the officer that nothing about defendant’s conduct during the encounter had caused the officer to be concerned for his safety. The Court of Appeals agreed with defendant and reversed his conviction, emphasizing that nothing about defendant’s conduct during the encounter gave the officer a reason to be concerned for his safety. The Oregon Supreme Court concluded the officer in this case perceived a circumstance-specific of danger based on his explanation of the risk of performing late-night field sobriety tests on a person whom the officer reasonably suspected was intoxicated. The Court also concluded the state met its burden to prove that the officer’s perception of danger and decision that a question about firearms was necessary were objectively reasonable. View "Oregon v. Miller" on Justia Law

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Defendant Peter Fonte took a pair of jeans from the sales floor at a department store. He went to a cash register and told the store employee that he wanted to return the jeans, giving the impression that he had previously purchased them. The employee accepted the jeans and handed defendant $124.60 in cash. Defendant returned the next day and repeated the scenario but with a different pair of jeans. That time, he received $151.30 in cash. Defendant attempted to leave the store, but loss prevention personnel stopped and detained him until police arrived. At issue before the Oregon Supreme Court was whether defendant committed the crime of first-degree theft. The Supreme Court concluded that act was not sufficient to establish that crime, and accordingly reversed the contrary decisions of the trial court and the Court of Appeals and defendant’s felony convictions. View "Walters v. Fonte" on Justia Law

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Defendant Robert Henley was convicted of first-degree sexual abuse and attempted first-degree sodomy, arising out of child sexual abuse allegations by his stepdaughter during a family camping trip. The issue his case posed for the Oregon Supreme Court's review was whether the expert testimony that the trial court allowed about “grooming” children for later sexual activity was “scientific” evidence that required a foundational showing of scientific validity under OEC 702. At trial, over defendant’s objection, the trial court permitted a forensic interviewer to testify about defendant’s behavior that may have constituted “grooming” of the victim for sexual abuse if defendant had the requisite intent, without the state first establishing that the testimony about grooming was scientifically valid and reliable. On defendant’s appeal, the Court of Appeals held that the testimony was not scientific evidence for which a foundation was required. The Supreme Court concluded that the testimony was scientific evidence and that the trial court erred in admitting it without a proper foundation. Given the record, the Court declined to decide the validity and reliability of the expert testimony on review. The Court also concluded that the admission of the testimony was not harmless. Therefore, the Court of Appeals and the trial court were reversed, and the case remanded back to the trial court for further proceedings. View "Oregon v. Henley" on Justia Law

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Defendant Ryan Hamann drove while under the influence of alcohol and was arrested. The State charged him with felony DUII because defendant had two previous DUII convictions; defendant had been convicted of DUII in Georgia in 2007, and then again in Clackamas County, Oregon in 2010. Defendant argued on appeal of his conviction that, once he proved the Georgia conviction was constitutionally invalid, the trial court’s imposition of any additional consequence on him based on that conviction was inconsistent with his right to counsel, as articulated in City of Pendleton v. Standerfer, 688 P2d 68 (1984). The Oregon Supreme Court concluded the trial court correctly relied on the Georgia conviction to revoke defendant’s driving privileges as a civil disability (not a criminal punishment) and that the revocation was consistent with defendant’s right to counsel under the Sixth Amendment to the United States Constitution. View "Oregon v. Hamann" on Justia Law

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The factual issue at trial was whether, as the State contended, defendant Thomas Bray forcibly raped, sodomized, strangled and assaulted J, or, as defendant claimed, J’s injuries resulted from consensual “rough sex.” A preliminary legal issue was whether defendant could compel the production of evidence that he viewed as supportive of his position. After the encounter with defendant, J had used her computer to conduct a Google search and make journal entries about defendant and the encounter. Defendant sought to compel the production of that digital data: Defendant filed a motion to compel the State to use its authority under the federal Stored Communications Act (the SCA)to obtain J’s records from Google, and he issued a subpoena duces tecum requiring J to appear at trial and bring her computer with her. The trial court granted defendant’s motion to compel, and, after some time and a number of hearings, the state eventually sent Google a subpoena for the records. Google did not comply; it took the position that a search warrant was required. Frustrated with what he viewed as the state’s defiance of the court’s order and refusal to do what was necessary to get the Google information, defendant moved to dismiss the charges against him. The court, unhappy with the State’s delay and “resistance or reluctance” to comply with its order, but satisfied that the State had done all that the court could direct it to do, informed the parties that it would not require the State to obtain a search warrant and denied defendant’s motion to dismiss. The court then conducted a bench trial. J testified, but she did not produce her computer in response to defendant’s subpoena. On cross-examination, J told the court that she had “flattened” her computer and that it therefore no longer contained digital information. The court denied defendant’s motion for an order requiring J to bring the computer to court for a forensic examination and, at the trial’s completion, found defendant guilty. The Court of Appeals affirmed the trial court’s denial of “defendant’s motion to compel the state to obtain J’s internet information” and its denial of defendant’s motion to dismiss. However, it determined the trial court erred in denying defendant’s motion to enforce the subpoena duces tecum, vacated defendant’s convictions, and remanded to the trial court for further proceedings. On appeal to the Oregon Supreme Court, defendant challenged the Court of Appeals’ rulings with respect to the Google records and the State’s failure to obtain them. The State also petitioned for review, challenging the Court of Appeals’ ruling with respect to defendant’s subpoena and its conclusion that defendant’s convictions must be vacated and the case remanded. The Supreme Court determined the trial court erred in failing to require J to produce her computer for forensic examination. “J’s computer could have contained evidence that could have provided for an effective cross-examination of J, who was the key witness in the state’s case.” The Court determined the trial court’s error was not harmless, and therefore defendant’s convictions were vacated, and the case remanded to the trial court to order J to produce her computer and subject it to forensic examination. View "Oregon v. Bray" on Justia Law