Oregon Appellate Court - Nov 14, 2013
by: Abassos • November 15, 2013 • no comments
Stops - A Windshield Crack is Not a Violation Unless There's a Probable Risk of Harm
A windshield crack does not constitute probable cause to stop a car for a violation unless the crack is so bad it creates a probable risk of harm (not just heightened risk), pursuant to ORS 815.020 (the unsafe vehicle statute). A windshield crack is not a violation of ORS 815.270 (obstructed view) because that statute requires an obstruction extrinsic to the vehicle itself. Here, defendant was pulled over because of a crack that went all the way across the windshield and spiderwebbed on the passenger side, blocking defendant's view. Because the state did not establish a probable risk of harm, it did not establish probable cause for a stop. State v Anderson State v Anderson, 259 Or App ___ (2013).
Burglary - Can Be With Intent to Avoid Capture
A burglary may be committed with the intent to disobey a lawful order to stop (ie interfering with a police officer) within the same criminal episode. Here, defendant ran into a house to avoid capture by a police officer who ordered him to stop moments earlier. Thus, defendant trespassed with the intent to disobey a lawful order. Because the order was given within the same criminal episode as the trespass, it was a burglary. State v Pitts, 259 Or App ___ (2013).
UUV - Defendant's Belief in an Honest Claim of Right is a Defense
Defendant's belief that he is the proper owner of a vehicle is a defense to UUV. The state must prove that defendant knew the car was stolen. Thus, a police officer's statement to defendant that he should simply go get his car from the mechanic (who had a mechanic's lien) was relevant and should have been admitted. The state argued that the statement was irrelevant because it was merely in service of the non-defense of ignorance of the law. Reversed. State v Lasky, 259 Or App ___ (2013).
Criminal Episodes - Separate Victims Separated By a Short Period of Time Are Likely One Episode
Where defendant abusively spanked his children one by one, it was one criminal episode of criminal mistreatment because he had a single overarching criminal objective. The court specifically rejects the argument that, over a few seconds, a defendant could formulate a new criminal objective: "Although a court may conclude that, in several hours, a defendant had the time to, and did, formulate distinct criminal objectives, we do not think that the gap in time in this case can lead to the same conclusion." The court also rejects the argument of the state and the dissent that when an offender moves from one victim to another to commit an additional crime, it necesssarily involves multiple criminal episodes. The court says of the argument that it is "precisely the kind of reductionist collapsing of objective and act that the Supreme Court and we have rejected in both theory and practice." This case should be read by any attorney who has a case with multiple victims over a short time period. State v Burns, 259 Or App ___ (2013).
Restitution - Retail Price Is the Correct Measure for a Store Theft
The retail price is an appropriate measure of restitution for property stolen from a store. The court rejects defendant's argument that the appropriate measure is the wholesale price plus any lost profits because, in a civil case, it would be an action for conversion. It is established law that the measure of damages in a civil action for conversion is the reasonable market value of the goods. State v Labar, 259 Or App ___ (2013).
Restitution - Court Limited By Charged Conduct/Admissions
It is plain error to impose restitution for conduct outside of what was charged by the state and admitted by the defendant. here, the state charged a theft on or about July 21, 2010 and defendant admitted to stealing more than a $1000 over a 16 day period. But the court imposed $43,000 in restitution over a 65 day period. Despite the issue being unpreserved, the court chooses to reverse as plain error because the gravity of the error is substantial and there was no danger that the trial attorney made a strategic choice. State v Dorsey, 259 Or App ___ (2013)
Venue - Pre-Mills Venue Challenges Should Be Remanded
Where defendant challenged venue as an element prior to State v Mills, the court of appeals will remand to the trial court for defendant to raise venue as a pretrial jurisdictional matter. State v Parsons, 259 Or App ___ (2013).
PCR - Vouching - Sex Abuse
For PCR purposes, addressing the law between the issuance of State v Southard and State v Lupoli, it was not a direct comment on the victim's credibility for a CARES social worker to testify to their treatment recommendations that defendant engage in sex offender treatment and that the victim have a safety plan. The jury could infer from those recommendations that the social worker believed the child, but such an inference did not make it vouching. The law now is different: "The Supreme Court further examined the issue of vouching evidence in the context of CARES testimony in 2010 in State v. Lupoli, 348 Or 346, 234 P3d 117 (2010). However, because our analysis is limited to the law in effect at the time of petitioner's criminal trial, we do not consider the effect of Lupoli on the admissibility of the evidence in this case." Logan v State of Oregon, 259 Or App ___ (2013).
