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by: Rankin Johnson IV • April 19, 2018 • no comments

Summarized by Rankin Johnson, OCDLA

  • CRIMES -- Identity theft

Creating a fake Facebook profile for a teacher and using that profile to send flirtatious messages to students did not reflect ‘intent to defraud’ and thus was not identity theft.

Although the contact could have harmed the victim’s reputation, and although the victim had a legal right to her reputation, defendant’s did not have an objective to harm the victim’s reputation, and therefore lacked the intent to defraud. Reversed

In dissent, Judge pro tempore Allen argued that the objective to use the teacher’s identity to obtain information from the teacher’s students was sufficient to prove intent to defraud.

State v. Horton 291 Or App 65 (April 4, 2018) (Ortega, J.; Allen, J pro tem, dissenting.)

  • SEARCH AND SEIZURE -- Lawful scope of traffic stop

In the absence of reasonable suspicion for UUV or a related crime, questioning about the ownership of the car is beyond the lawful scope of a traffic stop. Reversed and remanded

State v. Aguirre-Lopez 291 Or App 78 (April 4, 2018) (Hadlock, J.)

  • TRIAL PROCEDURE -- 403 balancing

The trial court erred by admitting, over OEC 403 objection, photographs of defendant’s former rental home, which was dirty and in disarray and poor repair.

Defendant was accused of criminal mischief for breaking windows belonging to his former landlord and others. The trial court failed to conduct 403 balancing on the record, precluding meaningful appellate review. Reversed and remanded.

State v. Sawyer 291 Or App 102 (April 4, 2018) (Lagesen, J.)

  • EVIDENCE -- Relevance
  • RIGHT TO COUNSEL -- Invocation

Defendant asking whether he needed a lawyer was not an invocation or equivocal invocation of the right to counsel.

Defendant’s use of an inflammatory ethnic slur to refer to an unidentified person who was not important to the facts of the case was not admissible under OEC 403, and the trial court erred by admitting it. Reversed and remanded.

In dissent, SJ Edwards wrote that, in declining to “sanitize” the defendant’s words, the trial court had permissibly exercised its discretion to conduct the trial.

State v. Roberts 291 Or App 124 (April 4, 2018) (Garrett, PJ; Edmonds, SJ, dissenting.)

  • EVIDENCE -- Hearsay
  • EVIDENCE -- Relevance

Recording of conversation between defendant and victim was correctly admitted in evidence.

Victim’s statements during that conversation were nonhearsay evidence used to provide context for defendant’s statements.

Defendant’s statements during that conversation that he would only discuss certain matters in person supported an inference that he did not want to be recorded because he was conscious of his guilt. Evidence that he refused to respond to some inquiries and was represented by counsel was not prejudicial on the facts of this case. Affirmed.

State v. Davis 291 Or App 146 (April 4, 2018) (DeHoog, J.)

  • TRIAL PROCEDURE -- Requests for substitute counsel

The post-conviction court abused its discretion by failing to consider petitioner’s request for substitute counsel.

Petitioner and his counsel corresponded about the procedure for petitioner to raise claims that counsel did not raise. Petitioner alleged, and offered evidence to establish, that counsel’s explanation was inaccurate or misleading regarding what claims would be raised or how petitioner could raise additional claims. The trial court denied the petition without discussing the request for substitute counsel. Reversed and remanded.

Truong v. Premo 291 Or App 164 (April 4, 2018) (DeHoog, J.)

  • TRIAL PROCEDURE -- Witness-false-in-part instruction

The trial court erred by giving witness-false-in-part instruction when defendant’s testimony was mildly inconsistent with another witness’s testimony. Reversed and remanded.

State v. Walker 291 Or App 188 (April 4, 2018) (James, J.)

  • TRIAL PROCEDURE -- Mere-presence instruction

Where the court gave a standard instruction on accomplice liability, defendant was not entitled to an additional instruction that mere presence at the scene of a crime is not a basis for conviction. Affirmed.

State v. Cain 291 Or App 243 (April 4, 2018) (Per curiam.)