Oregon Appellate Court 03-30-11
by: Abassos • March 29, 2011 • no comments
Read the full article for details about the following new cases:
- OEC 609(3) Prior Conviction - 15 year period
- Rape/Sex Abuse: Forcible Compulsion - Mental State
- Due Process - Fresh Pursuit Act
- Merger means Merger of Conviction
Contents |
OEC 609(3) - Prior Conviction - 15 year period
The 15 year period limiting the use of prior convictions to impeach the credibility of a witness begins when the witness was released from incarceration (not on the date of the conviction). The question is whether the witness's testimony (not the indictment of the current case) occurs after 15 years has passed. So interpreted, the testimony in this case clearly occurred after the end of the 15 year window. Since this was a swearing contest and the DA emphasized the prior conviction in closing, the error was not harmless. Reversed. State v. Lopez
Rape/Sex Abuse - Forcible Compulsion - Mental State
The forcible compulsion element of Rape I and Sex Abuse I is a material element that "necessarily requires a mental state". It is a material element if it describes prohibited conduct. An element necessarily requires a mental state if it concerns the harm or evil sought to be prevented by the crime. State v. Rainoldi. An element does not necessarily require a mental state if it is one that concerns venue, jurisdiction, statute of limitations or something similar. Here, forcible compulsion both describes prohibited conduct and is the essence of the harm at which the statute is aimed. Thus, it requires a mental state. The state charged knowingly. Thus, they were required to prove knowingly. Congratulations to Kami White for perfectly preserving this issue with a spot-on jury instruction and to Jess Barton and Charles Simmons for winning the argument on appeal. State v. Nelson
Due Process - Fresh Pursuit Act
"[I]rregularities-indeed, illegalities-in the manner in which a defendant is physically brought into a jurisdiction do not, in and of themselves, constitute due process violations that require the dismissal of the charges against the defendant." Here, officers violated Washington's Fresh Pursuit Act in bringing defendant into Oregon without a hearing in Washington. Importantly, the officer had the authority to arrest defendant; he was simply supposed to go through a process which he avoided. However,
If, as [Ker v Illinois] establishes, forcibly abducting a person from Peru to face criminal charges does not constitute a due process violation that requires dismissal of criminal charges, we cannot say that bringing a person back across the Astoria-Megler Bridge does.
Merger means Merger of Conviction
Where merger is appropriate, multiple counts merge into a single conviction. Here, the trial judge found that multiple counts of Felony Assault IV should merge because there wasn't a sufficient pause between the incidents. But when the DA drew up the sentencing order, instead of a single count of Assault IV there were multiple counts with the phrase "merger for sentencing". The DA might as well have written "Lindsay Lohan is awesome" for all the relevance the phrase possessed. Reversed for actual merger. State v. Mason
