Oregon Appellate Court 05-24-11

by: Abassos • May 23, 2011 • no comments

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

• PV Revocations - Proper Grid Block / Revocation Not a Sentencing
• Attempted DUII - Jury Instruction
• DUII - Diversion Eligibility - Statutory Counterpart
• Southard Error-Two Victims/One Trial - Appellate Review
• Wiretapping Statute - Aggrieved Party
• Restitution - DA Must Present Evidence of Amount of Damages
• Restitution - Hit and Run
• Parole Revocation - Imposition of Original Sentence
• Designating Predatory Sex Offenders
• Using a Child in a Display of Sexually Explicit Conduct - Observers

PV Revocations - Proper Grid Block / Revocation Not a Sentencing

When calculating the penalty for a probation violation, the court must use the grid block applicable at the time of sentencing for the underlying conviction (rather than the grid block at the time of the probation violation) because the administrative rule imposes the "maximum presumptive prison term that could have been imposed initially." In this case, the defendant wanted to use the grid block from the time of the PV because one of his convictions was overturned.

Further, as the court held recently in State v. Newell, a revocation is not a "sentencing," so the court cannot recalculate criminal history score as it could in a resentencing. Using the old grid block does not violate Double Jeopardy, because the revoking court did not use the now overturned conviction to set the sanction, but the grid block agreed upon in the plea deal. State v. Anderson

Attempted DUII - Jury Instruction

For purposes of a DUII, a disabled-only parking space is considered a "premise[] open to the general public for the use of motor vehicles," ORS 801.400. Also, when there is a factual dispute about whether the car was driven, a reasonable juror could infer that the defendant attempted to drive by starting the car, putting on her seatbelt and putting the car into gear. Thus, jury instructions for Attempted DUII are required. State v. Baty

DUII - Diversion Eligibility - Statutory Counterpart

New York's driving statute prohibiting "driving while ability impaired" is a counterpart to the Oregon DUII statute, and thus renders a defendant ineligible for diversion if she was convicted under the other state's statute within the past 10 years. Both statutes serve the same purpose of prohibiting alcohol-impaired driving and provide alternatives to using BAC to determine when a driver is "impaired". This is true even though the New York law is only an infraction. State v. Donovan

Southard Error-Two Victims/One Trial - Appellate Review

Where a diagnosis of sex abuse was improperly admitted under Southard as to one victim, but not to another victim in a consolidated trial, the Appellate Court only reverses the case where Southard evidence was presented. State v. Freitas

Wiretapping Statute - Aggrieved Party

The issue in this case is whether the defendant could seek to suppress intercepted communications under ORS 133.735, which is limited to "aggrieved person[s]." A person is aggrieved only if he is named in an intercept order or a person whose communications were actually intercepted. A defendant not fitting either of those situations cannot challenge evidence obtained through an intercept order, at least under the statute.

Also, an accomplice's testimony can be corroborated by other accomplices' out-of-court statements.

Finally, testimony about prior inconsistent statements of a witness is admissible, even if the witness has admitted to the lie. Here, however, the testimony would have been cumulative, since her testimony discussed her lie and the motives for telling it thoroughly, so the error was not reversible. State v. Klein

Restitution - DA Must Present Evidence of Amount of Damages

The trial judge cannot impose restitution if the district attorney does not present, prior to the time of sentencing, evidence of the nature and amount of damages. Under ORS 137.106, it is not sufficient to present evidence implying that some economic damages were suffered; some evidence of the amount of such damages must be presented. In this case, defendant stole a large picture of a police badge from the county jail which was recovered and reinstalled. The district attorney did not present evidence of the cost of reinstallation. State v. McLaughlin

Restitution - Hit and Run

When a party is convicted of failing to perform duties of a driver (ORS 811.700), it is appropriate for a sentence of restitution to include the cost to clear the title of the damaged vehicle and/or finance charges incurred when replacing the damaged vehicle. This is allowed by ORS 811.706 which provides that the trial court can order restitution of "any damages caused by [defendant] as a result of the incident that created the duties [of a driver that defendant failed to perform]". State v. Moore

Parole Revocation - Imposition of Original Sentence

The court, in a per curiam opinion, rejected both of defendant's procedural challenges to the re-imposition of his original sentence after his parole was revoked. Oregon parole boards are not required to establish ranges for the duration of incarceration where parole has been revoked. Also, parole boards have been granted the discretion (OAR 225-75-096) to require "lifers" (who have no "good time" date) whose parole has been revoked to serve the remainder of their initially imposed sentence. Murphy v. Board of Parole

Designating Predatory Sex Offenders

The DOC/Parole Board's rules for designating predatory sex offenders are invalid because the board did not file a copy of the STATIC-99 with the Secretary of State and because the board did not put the STATIC-99 in a place where the public could reasonably locate it. Smith v. DOC

Using a Child in a Display of Sexually Explicit Conduct - Observers

The offense of Using a Child in a Display of Sexually Explicit Conduct ORS 163.670 is applicable even when (1) the only observer(s) of the sexual conduct were also participants and (2) the conduct is not recorded. In this case, trial court did not err in refusing to grant defendant's MJOA when defendant engaged in sexually explicit conduct with a child while only her husband watched and instructed the child. State v. Tyson