A Book from the Library of Defense

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by: Rankin Johnson IV • May 7, 2018 • no comments

Summarized by Rankin Johnson, OCDLA

  • CIVIL COMMITMENT -- Sufficiency

Appellant’s obsession with reuniting with her son and vague threats against anyone who interfered did not justify involuntary civil commitment. Reversed.

Appellant had previously been diagnosed with “bipolar mania," and had a history of behaving in a vaguely threatening manner. She was obsessed with spending time with her son, who lived with her parents. Although some witnesses described her as ‘violent,’ there was no evidence that she had struck anyone in the four years preceding the hearing, when she had hit her father. Appellant repeatedly called the police to request a welfare check for her son, and she told a police officer that she had the right to shoot anyone who came between her and her son. Although appellant’s behavior was erratic, her threatening statements were not sufficient to prove that she was highly likely to engage in future violence.

State v. SF 291 Or App 262 (April 11, 2018) (Ortega, J.)

  • EVIDENCE - Curative or conditional admissibility

By offering evidence that domestic-violence can be part of an ongoing pattern, defendant opened the door to evidence of prior instances of domestic violence directed against the victim by the defendant. Affirmed.

The victim was struck and injured at a nightclub. Evidence was equivocal as to whether defendant was the assailant. The state offered evidence that, defendant said that, if he had hit the victim, three months later she would have been dead. On cross-examination of a police officer, defense counsel elicited evidence that sometimes domestic violence is part of an escalating pattern. In rebuttal, the state offered evidence that the victim said that defendant had previously slapped her. The court reasoned that the defendant wanted the jury to infer that a single instance of domestic violence was unusual, and that the state could rebut that inference with evidence that defendant had engaged in repeated abuse.

State v. Apodaca 291 Or App 268 (April 11, 2018) (Hadlock, J.)

  • POST-CONVICTION relief -- Ineffectiveness and tactical choices

Post-conviction court did not err in finding that trial counsel had made reasonable tactical choices and that any errors had not prejudiced petitioner. Affirmed.

Petitioner, a former elementary-school teacher, was convicted of sex offenses against a former student. The court discussed and rejected three fact-specific claims in light of the evidence at trial and the tactical choices a competent attorney could have made.

Stephens v. Persson 291 Or App 278 (April 11, 2018) (Lagesen, J.)

  • APPEALS -- Preservation

Defendant adequately joined a co-defendant’s motion to preserve the issue for appellate review. Reversed and remanded.

Defendant and a co-defendant were jointly tried. Prior to trial, the state filed a motion in limine to exclude a possible defense expert. After the state’s case in chief, and after an offer of proof, the court granted the motion in part and denied it in part, and defendant assigned error to that ruling on appeal. The state filed separate motions as to each defendant, counsel for each defendant examined the witness during the offer of proof, and the prosecutor and judge were both aware of the issue. Although defense counsel did not expressly join the arguments made by co-defendant’s counsel, the goals of preservation were met.

State v. Mendoza-Lopez 291 Or App 292 (April 11, 2018) (Shorr, J.)

  • EVIDENCE -- Expert testimony

Defense evidence about child interviewing techniques was relevant when child victims were interviewed as adults. Reversed and remanded.

Two co-defendants were accused of sexually abusing the victims, who were five or six when the abuse took place and who reported more than ten years later, and were professionally interviewed as adults. The defense sought to offer expert testimony about “source confusion,” when young children who have been sexually abused confuse the identity of the perpetrator. There was evidence that neighbors had been involved in some of the abuse, and the defense argued that the victims might have confused the neighbors for the defendants. The court ruled that the expert evidence would have been “helpful” under OEC 702, and thus was admissible. Because it related to the central issue in the case, whether the defendants or someone else had committed the offenses, its exclusion was harmful.

State v. Mendoza-Sanchez 291 Or App 65 (April 11, 2018) (Shorr, J.) Rankinjohnsonpdx@gmail.com:Rankin Johnson IV }}