Oregon Appellate Court 04-13-11

by: Abassos • April 12, 2011 • no comments

Read the full article for details about the following new cases:

• Speedy Trial
• Robbery I - "Use" of a Weapon
• Prior Bad Acts - Intent
• 200% rule - Gun Minimum
• Assault II - By means of a dangerous weapon
• Failure to Register as a Sex Offender - No Duty to Provide Address Verification
• Failure to Register as a Sex Offender - Venue

Speedy Trial

Where there is a 26 month delay attributable to the state, a judge is required to grant a motion to dismiss unless the state presents particularized evidence justifying the delay. Here, the state presented evidence that some of the delay was caused by judicial conflicts. But even that evidence was insufficiently specific to support a finding that any portion of the 26 month delay was reasonable. Reversed. State v. Bellah

Robbery I - Use of a Weapon

Threatening the victim with a weapon in order to facilitate a theft is "use" of the weapon for purposes of the Robbery statute. Here, the defendant held a knife in his hand while he demanded money from a store clerk. He testified that he "used" the knife to show the clerk he was serious. That was sufficient use for Robbery I. This should not affect the question of whether a threat is use for purposes of the Unlawful Use of a Weapon statute. The court in this case relies heavily on the Commentary to the 1971 Code which gives an example of Robbery I that is right on point. See Ryan's analysis here .[http://www.publications.ojd.state.or.us/A142152.htm State v. Osborne]

Prior Bad Acts - Intent

Where defendant argued that he tackled and groped a hotel clerk as part of an attempted robbery, the state was allowed to bring in a prior sex conviction to establish that defendant's intent was actually to commit the charged sex crime. While the old and new crimes were not identical, they involved similarly situated victims, similar groping, in a similarly public place with a similar face punching to accomplish the groping. This is enough to satisfy the Johns criteria. State v. Ofoegbu

200% rule - Gun Minimum

The 200% rule applies neither to consecutive gun minimum sentences nor consecutive Measure 11 sentences because they are mandatory minimums. Thus, in this case, defendant legally received two consecutive 100 month M11 sentences followed by a consecutive 60 month gun minimum sentence, even though 260 months is more than 200% of the primary offense sentence of 100 months. Note that the 200% rule would still apply if a non-mandatory sentence (like REPO) were run consecutive to a gun minimum or M11 sentence. The key is whether the consecutive sentence is one to which the 200% rule applies. State v. Cervantes-Avila

Assault II - by means of a dangerous weapon

Assault II was committed by means of a dangerous log when defendant repeatedly pushed the victim into the ground where she repeatedly struck her head on a log. The court sees little difference between the inferences the jury could make in this case and those in Reed where the defendant used a concrete sidewalk as a weapon. State v. Hagstrom

Failure to Register as a Sex Offender - No Duty to Provide Address Verification

Where defendant appeared at the Beaverton Police Department with his address and otherwise ready to report, he fulfilled his duties. The fact that BPD wouldn't accept his report because defendant was unable to verify his address is irrelevant. Defendant satisfied his legal obligation when he went to an appropriate police department within the required timelines ready to provide the statutorily required information. State v. Depeche I

Failure to Register as a Sex Offender - Venue

For failing to register within 10 days of an address change, the proper venue is the county where defendant is at midnight on the 10th day. It is at that moment that the crime is committed. Not every single moment after midnight. The state offered no evidence that defendant was in Washington County on midnight of the 10th day. Therefore, they failed to prove venue. This case should also apply to the similar section requiring registration within 10 days of one's birthday. State v. Depeche, II