Oregon Appellate Court - May 8, 2013
by: Jwestover and Abassos • May 8, 2013 • no comments
No Sua Sponte Stalking Protection Orders
Courts may not impose a stalking protective order (SPO) sua sponte; they may only grant SPOs “after a person brings a civil action an seeks an SPO as a remedy,” or “after a person has presented a complaint to a law enforcement officer and the officer has served a citation containing specific notice requirements on the person sought to be restrained.” Here, a court imposed an SPO in the absence of either of the required circumstances, and the Court of Appeals finds that to be error. Reversed. N.R.J. v. Kore, 256 Or App ___ (May 8, 2013).
Merger—Multiple Owners of a Vehicle = One Victim for UUV
Oregon’s UUV statute, ORS 161.067(2), provides, in pertinent part, “two or more persons owning joint interests in real or personal property shall be considered a single victim for purposes of determining the number of separately punishable offenses . . . .” Here, defendant pled to two counts of UUV, one pertaining to the owner, and the second pertaining to a tow lot that had a lien on the vehicle. The court finds that “ORS 161.067(2) considers the owner and the tow yard to be a single victim.” Consequently, the charges ought to have merged, and the court reverses on account of the trial court’s failure to do so. State v. Haney, 256 Or App ___ (May 8, 2013).
Specific Nature of “Fee” Must Be Proved to Convict for Prostitution
Prostitution involves “sexual conduct or sexual contact in return for a fee,” but ‘fee’ is not defined by statute. The Court concludes that a “fee” is “something that has economic value in a transaction that is commercial in nature.” Accordingly, “a person cannot be convicted of prostitution unless the trier of fact is able to find that the thing to be exchanged has those characteristics.” (emphasis added). Here, the state was unable to provide any evidence of the nature of the “fee” in its case in chief. The trial court therefore erred in failing to grant defendant’s motion for judgment of acquittal. State v. Palomo, 256 Or App ___ (May 8, 2013).
Ryan Scott has written an interesting blog post about the realities of having to think on one’s feet during trial in response to this case.
The "Shift to I" Rule and Plain Error
It is plain error to not apply to the "Shift to I" rule when sentencing two convictions that involve the same criminal episode and the same victim. [State v. Monro, 256 Or App ___ (May 8, 2013).
