Oregon Appellate Court 06-15-11
by: Abassos • June 14, 2011 • no comments
Read the full article for details about the following new cases:
- Sex Abuse II - Consent/Under 18 - Proportionality
- Rape/Sex Abuse-Admission of Prior Bad Acts
- Failure to Register as a Sex Offender-Supervising Agency
- Measure 11 Sentencing-Mental Capacity as a Factor
- Child and Family Services - Permanency Judgments - Judgment Must Be Based on the Record
- DUII Trials - Expert Testimony - Sufficiency of Evidentiary Foundation
- Criminal Mischief - Property Used in Direct Service to Public
- Probation - Special Conditions - High Vice Area
- Burglary - MJOA - Intent
- ID Theft - MJOA - Intent
Sex Abuse II - Consent/Under 18 - Proportionality
The court adheres to State v. Stamper in finding that, for Sex Abuse II, lack of consent can be established by the fact that the victim was under 18. As the defense points out, this leads to a disproportionality problem since that means it's a more serious crime to abuse a 17 year old than a 15 year old. (See Ryan here .) The court commends defendant more than once for raising the issue and doing it well, but, ultimately, can't see its way around stare decisis. However, the case is a partial win as the court finds that the appropriate crime seriousness level cannot be a 7 when it would have been a 6 were the victim younger:
[This is] a textbook example for the application of the principle of vertical proportionality: Defendant's acts in committing sexual abuse in the second degree necessarily are less severe than the same acts would have been if defendant's victims had been younger, but the potential penalty for defendant's acts is greater than the potential penalty for the same acts against younger victims. Such a scheme does not comport with the standard set by Article I, section 16. Defendant's sentences must be vacated and the case remanded for resentencing.
Rape/Sex Abuse-Admission of Prior Bad Acts
In a trial for rape and sex abuse, it was a reversible error for the trial court to admit evidence that the defendant had previously had a 14-year incestuous relationship with his younger brother and on one occasion, had sex with a teenage girl. The evidence was not relevant under OEC 404(3) and (4) because the prior bad acts were not similar in conduct to the current charge. In addition, the error was not harmless because the only evidence the jury had to consider were the competing testimonies of the defendant and the victim. Therefore, any erroneously admitted evidence regarding the defendant's credibility was likely to affect the jury's verdict. State v. Moore
Failure to Register as a Sex Offender-Supervising Agency
Even though the defendant informed his probation officer about his change of residence, he failed to register since his PO then told him to inform OSP.
In addition, even though ORS 181.599 does not define the term "residence," the statute is not unconstitutionally vague. Given the common meaning of the term "residence," a person in the defendant's position would have had a reasonable opportunity to know that he had changed his "residence" by actually living someplace new, regardless of whether he kept paying rent elsewhere. State v. Reigard
Measure 11 Sentencing-Mental Capacity as a Factor
A trial court can take a defendant's mental capacity into account when determining whether or not a Measure 11 sentence violates Article I, section 16 of the constitution. Since the court is unsure whether or not the trial court judge knew he could take the defendant's mental capacity into account, the case is remanded for resentencing. State v. Wilson
Dependency - Permanency Judgments - Judgment Must Be Based on the Record
A court must base its permanency judgment on facts contained in the record of the jurisdictional proceeding. If facts that weren't found at the original jurisdiction hearing are to form the basis of a permanency order, the court must direct an amendment to the original petition and grant an appropriate continuance so that the parent has an adequate opportunity to defend against the new allegation or to ameliorate it. Dept. of Human Services v. G.E.
DUII Trials - Expert Testimony - Sufficiency of Evidentiary Foundation
Where an expert witness, in a DUII trial, uses Widmark's formula (a generally accepted method for calculating the rate of alcohol absorption and dissipation) and back extrapolation of BAC as a basis for testimony that establishes the BAC of a defendant within a time range, that testimony is admissible if it is derivative of a chemical analysis performed on the breath or blood. This derivation is required by ORS 813.010(1)(a). State v. Eumana-Moranchel
Criminal Mischief - Property Used in Direct Service to Public
For the purposes of ORS 164.365(1), criminal mischief in the first degree, a railroad slide fence qualifies as property used in direct service of the public, since damaging the fence would cause a disruption of the service that the railroad supplies to the public. State v. Wray
Probation - Special Conditions - High Vice Area
Under ORS 138.050, appeals of sentences after a plea of guilty or no contest are limited to claims that they exceed the maximum allowed or are cruel and unusual. Nevertheless, ORS 138.053 allows appeals of probation conditions whenever there is "a colorable claim of error in the proceeding," meaning probation conditions can be broadly challenged even when following a guilty or no contest plea.
In this case, however, the exclusion from a high vice area of sections of SE 82nd Ave. and SE Sandy is not overbroad and does not violate defendant's freedom of association. The condition was based on the defendant being caught prostituting on SE 82nd and is therefore "reasonably related to the protection of the public or her reformation, or both." Further, by allowing her to pass through the area, the condition reasonably allowed for her association. State v. Donahue
Burglary - MJOA -Intent
The factfinder could reasonably infer from "the financial nature of the credit union's operations, the actions that defendant undertook to gain entry, his attempt to hide from the officers who responded to the alarm, and his effort to hide his face from the credit union's surveillance camera" that he intended to steal from the credit union upon breaking in. State v. Martin
ID Theft - MJOA - Intent
MJOA for ID theft is proper when there is little evidence beyond the fact that the defendant possessed an ID that was not his. Aside from possessing the ID, the defendant said he found it in a wallet, did not have the wallet or tell police where the wallet was, and looked generally like the picture on the ID. State v. Martin
