A Book from the Library of Defense

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by: Rankin Johnson IV • August 13, 2018 • no comments

Summarized by Rankin Johnson, OCDLA

APPEALS - Motions for summary affirmance

The appellate commissioner cannot decide a motion for summary affirmance if the opposing party objects, but a written statement in the motion that the opposing counsel objects is not opposition. Order of summary affirmance by appellate commissioner adhered to

State v. Ibarra 293 Or App 268 (August 8, 2018) (DeVore, J.)

BURGLARY - Relationship between mens rea and actus reus

Evidence was not sufficient to support burglary conviction. Reversed and remanded for entry of judgment of conviction for trespassing.

Defendant was invited to stay in a house for at most, one night, but he stayed for multiple nights. While there, he stole Vicodin from the homeowner. The evidence did not establish that defendant had the intent to commit theft at the beginning of his trespass, and, thus, the evidence did not prove burglary.

State v. McKnight 293 Or App 274 (August 8, 2018) (Lagesen, J.)

SEARCH AND SEIZURE - Conduct constituting a stop

Approaching defendant and accusing him of trying to avoid the police constituted a stop. Reversed and remanded with direction to grant the motion to suppress.

A police officer saw defendant in traffic. The officer interpreted defendant’s expression as “Oh, there’s the cops.” Defendant pulled into a parking lot, drove through a drive-through without ordering anything, pulled back onto the roadway, and then, when he saw the police following him, pulled into another parking lot. The officer approached him and asked why he was avoiding the police. Defendant responded that he was “suspended.” The court explained that, by “dogged[ly]” following defendant and asking a confrontational question, the officer stopped defendant.

State v. Leiby 293 Or App 293 (August 8, 2018) (James, J.)