A Book from the Library of Defense

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by: Mary A. Sofia • November 21, 2017 • no comments

Written by Erin Severe, OPDS | Edited by Mary A. Sofia, OCDLA


Crimes—Theft & Criminal Mischief—Property of an owner

Theft and criminal mischief require evidence that the property is the property of another.

Defendant and a friend entered private land without the owner’s knowledge, found an old excavator, and disassembled and sold the excavator as scrap metal. No one knew who owned the excavator, including the property owner. The state charged defendant with, among other crimes, first-degree theft and second-degree criminal mischief. At trial, defendant moved for judgment of acquittal on the grounds that the state had adduced no evidence that the excavator had an owner. The Court holds that although the state is not required to prove the identity of the excavator’s owner, it is required to prove that the excavator had an owner. In cases in which a defendant raises the issue of abandonment, the state must adduce evidence sufficient to allow the jury to find that the property is not abandoned. Because the state failed to prove that the excavator was property of another, the trial court erred in denying defendant’s motion for judgment of acquittal.

State v. Erickson, 288 Or App 704 (2017) (DeHoog, J.)


Criminal Procedure—Right to Self-Representation—Mid-trial waiver of counsel

Trial court abused its discretion in denying defendant’s request to waive counsel mid-trial because it did not weigh defendant’s right to proceed pro se against need for an orderly and expeditious trial.

Defendant moved to represent himself at the end of the first day of trial stating that he was unhappy with his counsel’s preparation for trial and cross-examination of witnesses. The trial court denied defendant’s request because it believed counsel was providing excellent representation, that defendant would be at a severe disadvantage if he dismissed counsel, that defendant’s decision, including any request for a legal advisor, should have been made long ago, and because the court did not believe that defendant could adequately represent himself. A trial court may deny a defendant’s mid-trial waiver of his or her right to counsel mid-trial if either of two circumstances are present: (1) the waiver is not knowing and voluntary or (2) the court’s obligation to ensure fair, orderly, and expeditious proceedings outweighs the defendant’s right to self-representation. Here, the trial court could not have found that defendant’s waiver was not knowing and voluntary. The court does not decide whether the potential that defendant would disrupt trial would have warranted the trial court denying his request. Rather, the court concludes that the trial court abused its discretion in denying the waiver because it did not weigh the relevant interests involved in denying defendant’s waiver, specifically it did not balance defendant’s right to proceed pro se against the need for an orderly and expeditious trial.

State v. Williams, 288 Or App 712 (2017) (DeHoog, J.)


Evidence—Remand for OEC 403 balancing

Trial court failed to adequately demonstrate that it admitted video depicting boyfriend prompting children to use racial epithets after consciously engaging in OEC 403 balancing process in manslaughter case.

State v. Alvarado, 288 Or App 752 (2017) (Per Curiam)


Motion to Suppress—Probable Cause of Traffic Violation—Failure to Drive Within a Lane

Officer had probable cause to stop defendant for failing to drive within a lane when defendant momentarily straddled lane line when her lane split from one lane into two lanes.

Defendant was driving down a road when her lane split into two lanes. Defendant briefly “straddled” the new lane before moving fully into the left lane. An officer stopped for violating, ORS 811.370, which requires a driver to operate a vehicle as nearly as practicable within a single lane. Evidence obtained during that stop led to evidence that defendant was driving under the influence of intoxicants. ORS 811.370 requires a driver to operate his or her vehicle entirely within a single lane unless (1) something (like a road hazard) makes it impracticable to do so or (2) the driver is moving from one lane to another and first makes certain that the movement can be made safely. Here, the officer had probable cause to stop defendant because nothing made it impracticable for her to stay within her lane when she completed the movement into the new left lane. The fact that defendant only momentarily crossed the lane marker is irrelevant.

State v. Husk, 288 Or App 737 (2017) (Aoyagi, J.)


Sentencing—Restitution—Type of victim for which court may award restitution to health insurer

ORS 137.103(4)(a) refers to the direct victim of a crime or violation, as distinguished from an indirect victim such as a family member. Defendant caused a head-on collision when trying to pass another vehicle, seriously injuring the other driver. Defendant was convicted of reckless driving and careless driving. The trial court ordered defendant to pay restitution to the injured driver’s health insurer for medical expenses incurred by the driver and paid by the insurer. On appeal, defendant challenges the restitution award on the grounds that the victim is not the type of victim for which payments to an insurance carrier are authorized under the restitution statute. ORS 137.103(4)(d) (permitting restitution to an insurance carrier that “has expended moneys on behalf of a victim described in paragraph (a) of his subsection”). Specifically, defendant argues the victims of crimes like reckless driving and careless driving qualify for restitution under ORS 137.103(4)(b), which permits the trial court to award restitution on behalf of “[a]ny person * * * whom the court determines has suffered economic damages as a result of the defendant’s criminal activities,” and not under ORS 137.103(4)(a), which permits the court to award restitution on behalf of “[t]he person * * * against whom the defendant committed the criminal offense.” Defendant argues that ORS 137.106(a) is limited to crimes that require injury to another person as an element of the offense. In view of the legislative history of ORS 137.106, the Court concludes that ORS 137.104(a) refers to the direct victim of a crime or violation, as distinguished from an indirect victim such as a family member. Because defendant’s crime directly caused the victim’s injuries in this case, the trial court correctly concluded that the other driver was a victim under ORS 137.103(4)(a) and that the restitution award to the insurance carrier was proper.

State v. Zuniga, 288 Or App 742 (2017) (Aoyagi, J.)