Oregon Appellate Court 03-14-12
by: Abassos • March 14, 2012 • no comments
Read the full post for summaries of today's cases on the following topics:
- Felon in Possession - Misd. Treatment Still a Felony
- Inventory Search - Exceeding the Scope
- Venue - A City and Milemarker Isn't Enough
- Consec. Sentencing Is Not an Erroneous Term
- Dependency - Jurisdiction - Likelihood of Harm
- Mental State - Jury Instructions
- Stalking Protective Orders - Contact and Alarm
- Dependency - Jurisdiction - Prior Sex Offense and Failed Treatment Not Enough
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Felon in Possession - Misdemeanor Treatment - Still a Felony Unless Reduced at Time of Judgment
Defendant was properly convicted of felon in possession of a firearm even though his felony had been reduced to a misdemeanor. A felony at the time of judgment continues to be a felony for the purposes of the felon in possession statute regardless of misdemeanor treatment. The reason is that ORS 166.270(3) specifically defines felony to include any felony conviction except where "the court declared the conviction to be a misdemeanor at the time of judgment". State v Stark
Inventory Search - Exceeding the Scope
Officers exceeded the authority of their inventory policy where they searched the bed of a pickup truck secured by a locked tonneau cover. The bed of a pickup truck is neither a "trunk" nor an "external vehicle container", the two possibilities allowed under the inventory policy. A pickup bed is not a trunk because only cars have trunks. Pickups have beds. Just because the tonneau cover allowed the bed to function like a trunk doesn't make it into a trunk ("just as a fanny pack is not a purse"). It is self-evidently not an external vehicle container because the bed of a pickup is not external to the vehicle. Reversed. State v Hanna
Venue - Driving While Revoked
The state did not prove venue because it requires speculation to get from their proof (that the crime was committed in North Plains on highway 26 near mile marker 57) to the conclusion that the crime was committed in Washington County. Reversed. State v Mills
Correction of Erroneous Term By Sentencing Court - Consecutive Sentences
A failure to impose consecutive sentences is not an "erroneous term" that can be modified under ORS 138.083(1)(a). Here, when a court revoked probation it intended for the sentence to run consecutive to another prison sentence the defendant was already serving. However, the judge didn't mention it in the judgment or on the record. The judge was not allowed to amend the judgment two years later to reflect her unstated intent because there was no erroneous term in the judgment. The judgment was clear in its failure to impose a consecutive sentence. State v Gilbert
Dependency - Jurisdiction
Continuation of jurisdiction was inappropriate where there was no evidence underlying the decision and even the original jurisdiction was based on evidence that did not indicate "a reasonable likelihood of harm". Specifically, the original jurisdiction was based on inadequate supervision evidenced by unsupervised access to the internet and exposure to mom's "unconventional" but not unlawful lifestyle. DHS v DM
Mental State - Jury Instructions
Defendant was not entitled to a jury instruction specifying the conduct to which a mental state applies because the standard jury instructions for menacing are not incorrect. The instruction for "intentionally" is correct because, to prove menacing, the state must establish both conduct and a result. The instruction for menacing is correct because it informs the jury of the elements to which the mental state applies. State v Durst
Stalking Protective Order - Contact and Alarm
To support a Stalking Protective Order, a contact involving speech must be an unequivocal threat of imminent personal violence. Here, the respondent told the petitioner, a fellow shopper at Good Will that "You should be afraid of me, they're not going to stop me, I can do whatever I want." Since "they" was Good Will and "whatever I want" referred to his aggressive shopping style, the words did not convey an immenent violent threat. The aggressive shopping itself did not support a SPO because it was not sufficiently agressive to make it reasonable for the petitioner to fear the threat of physical injury. Respondent pushed petitioner 10 times over the previous year in an attempt to keep her from the more valuable books at the Good Will bins.[http://www.publications.ojd.state.or.us/sites/Publications/A142110.pdf Reitz v Erazo]
Consent to Search - Extension
A stop is not extended where consent to search is requested by one officer while the other officer is writing a traffic ticket. State v Nims
Dependency - Jurisdiction
The fact that father had previously beaten and sodomized a 3 year old and failed to complete treatment was insufficient to establish danger to the children. The incident was two decades prior. The state did not prove that father's condition was not in remission, as he testified. At best, they presented a 14 year old evaluation indicating he was still a danger. that 14 year gap, however, is a "temporal canyon". The burden is not on father to prove he's in remission. J. Wollheim dissents:
I would find that DHS proved, by a preponderance of the evidence, that father, having never remedied the condition that caused him to sodomize young children in his care, poses a current risk to such children, including his own.
