Oregon Appellate Court 02-29-12
by: Abassos • February 29, 2012 • no comments
Read the full article for details about the following new cases:
- Relevancy - Other Acts
- Diagnosis of Sex Abuse - Multiple Complainants
- Stalking Protective Order - No Mental State as to Alarm
- Termination of Parental Rights - Unfitness
- Dependency - No Appeals Past 90 Days
- Appealing a Stipulated Illegal Sentence
Contents |
Relevancy - Other Acts
Defendant's drawing of an armed robbery was relevant in his trial for armed robbery where the defense argued that defendant did not participate in the robbery. Because the drawing was relevant, OEC 404(4) requires admission even if the drawing was substantially more prejudicial than probative. However, the question of whether a balancing test was constitutionally required was not preserved and, therefore, not considered by the appellate court. State v. Jasso
Sentencing - Stipulated Illegal Sentence
41 months prison plus 3 years post-prison supervision is an illegal sentence for a C felony. The sentence is reversible on appeal, even if the sentence of 41 months was a stipulated one. 138.222(2)(d) bars review of stipulated sentences; but it only bars those portions of a sentence which are stipulated. Here, the prison sentence would be unreviewable. However, nobody ever mentioned post-prison supervision as being part of the stipulation. Therefore, it is reversible. [http://www.publications.ojd.state.or.us/sites/Publications/A145892.pdf State v. Capri]
Diagnosis of Sex Abuse - Multiple Complainants
A diagnosis of sex abuse in the absence of physical evidence is prejudicial enough that it requires reversal of convictions against a complainant who wasn't diagnosed but whose allegations were part of the same trial. This is particularly true in a case that relies completely on the credibility of the complainants. [http://www.publications.ojd.state.or.us/sites/Publications/A141564.pdf State v. Cox]
Stalking Protective Order - No Mental State as to Alarm
The respondent in a stalking protective order is not required to have any mental state with regard to the petitioner's feeling of alarm or coercion. Here, the respondent rode up to petitioner on his riding mower. Petitioner felt alarmed because his dog might pull him into the lawnmower. It didn't matter that respondent was unaware of such alarm. Additionally, the court rejects respondent's argument that the lawnmower incident was speech because there was a verbal exchange. The court finds that, while the speech provides context, it was the act of riding the lawnmower up to the petitioner that caused the alarm and thus constituted an unwanted contact. [http://www.publications.ojd.state.or.us/sites/Publications/A142443.pdf TMB v. Holm]
Termination of Parental Rights - Unfitness
Mother's heroin addiction made her unfit, despite her recent abstenance:
Importantly, mother has thus far maintained her recovery while living in a women's shelter without the stresses, financial and otherwise, of parenting multiple children; in the past, mother has relapsed almost immediately upon leaving structured treatment environments and, up to the time of the termination hearing, demonstrated little ability to even reliably attend outpatient treatment.
The court finds that it would have taken at least 7 months for mother to potentially become minimally fit. But testimony at the TPR trial established that 6 months was too long for the children to wait. DHS v TMM
Dependency - No Appeals Past 90 days
Despite the fact that trial counsel did everything wrong in failing to timely file an appeal, Due Process does not allow for an appeal past the 90 days allowed by ORS 419A.200(5):
In sum, ORS 419A.200 comports with due process in the generality of cases. Even assuming that due process might somehow demand more in father's circumstances, we are persuaded that, in the totality of the circumstances, the termination proceedings have been fundamentally fair, and due process does not require that father be allowed to file a late appeal.
