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Oregon Appellate Court--July 11, 2018

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by: Rankin Johnson IV • July 25, 2018 • no comments

Summarized by Rankin Johnson, OCDLA

  • EVIDENCE-Rape shield law

The trial court did not err by excluding evidence of the victim’s sexual behavior. Affirmed.

Defendant sexually abused the victim when the victim was between the ages of seven and 11. When the victim was 12, her mother found her with her pants down in the company of a boy her age, and thereafter the victim disclosed defendant’s offenses. A later medical exam revealed a well-healed scar on the victim’s hymen.

Defendant sought to argue that the victim’s conduct with the boy had led to the scar. The state argued that the defense had to offer evidence of penetration by the boy. The trial court agreed with the state, as did the Court of Appeals.

State v. Mayo 292 Or App 751 (July 11, 2018) (Ortega, J.)

  • BAIL-Rescission and financial obligations

Trial court did not plainly err by considering bail payment in determining whether the defendant could afford to pay attorney-fee award and applying bail to attorney-fee award.

Trial court plainly erred by imposing $107 Mandatory State Amt without notice that it would do so and without any statutory authority. Offending portion of judgment reversed, otherwise affirmed.

J. Egan concurred to observe that the attorney-fee issue could not be reached because it was unpreserved. He also observed that, when a third party pays security on the defendant’s behalf, a risk that the security will be seized to pay financial obligations operated to “punish any faith that friends and family have in criminal defendants.”

State v. Thomas 292 Or App 811 (July 11, 2018) (Lagesen, J., Egan, J, concurring)

  • SENTENCING-Out-of-state convictions as predicates

Trial court plainly erred by considering California convictions for Lewd and Lascivious Conduct Upon a Child as comparable to Oregon felony sex offenses. Reversed and remanded for resentencing.

State v. Marcus 292 Or App 811 (July 11, 2018) (Per curiam)

State v. Guardado 292 Or App 811 (July 11, 2018) (Per curiam)