Oregon Appellate Court 08-17-11
by: Abassos • August 16, 2011 • no comments
Read the full article for details about the following new cases:
- OEC 609-1 - Bias - "a mere tendency to show bias"
- Marijuana Diversion - Inapplicable to Possession Within 1000 Feet of a School
- Burglary I - Entering or Remaining - Boots Instruction
- Assault IV - Physical Injury
- Warrantless Search - Automobile Exception
- Vehicle Stop - Reasonable Suspicion
- Preservation - MJOA - Tampering With a Witness
- Termination of Parental Rights - Detriment to Child
OEC 609-1 - Bias - "a mere tendency to show bias"
Defendant did not meet his initial burden under OEC 609-1 to establish "a mere tendency to show bias" where he wanted to admit a post-arrest video of an incident with one officer to prove bias on the part of the arresting officer. Defendant argued at trial that the video tended to show that the Police Department as a whole was out to get him. The appellate court says that while reasonable inferences are permissible, "speculation is not." "Here, the string of inferences defendant would have us unwind is simply too long." Affirmed. State v. Phillips
Marijuana Diversion - Inapplicable to Possession Within 1000 Feet of a School
ORS 135.907(1), creating diversion eligibility for possession of less than an ounce of marijuana, does not apply to the C misdemeanor of possession of less than an ounce of marijuana in a public place within 1000 feet of a school. ORS 475.864. The primary problem with defendant's argument, says the Court of Appeals, is that the C misdemeanor was created after the diversion statute. The legislature could not have intended to include a statute which did not yet exist. Moreover, the legislative history for the C misdemeanor indicates that the legislature was aware of the diversion statute and assumed it would only apply to the violation. State v. Durham
Burglary I - Entering or Remaining - Boots Instruction
A defendant in a Burglary case is not entitled to a "Boots" instruction that would force the jury to agree on whether the defendant "entered" with intent to commit a crime or "remained" with intent to commit a crime. No jury concurrence instruction is required as to alternative means of proving a single statutory element. Boots instructions are needed to make sure the jury agrees on a single crime, not a single theory. State v. Pipkin
Assault IV - Physical Injury
Where the victim testified that an hour after the incident she had a swollen eye, popped shoulder and a hurt back, the evidence was sufficient to create a question for the jury as to whether she suffered substantial pain. State v. Pipkin
Warrantless Search - Automobile Exception
Whether a vehicle is mobile for the purpose of the automobile exception is assessed at the moment the officers first make contact with the vehicle. The vehicle does not become immobile just because the officers break contact with the vehicle for a short period. Here, the officers left the scene and came back 25 minutes later, after probable cause had developed. Because the car had not been impounded or disabled in any way, it remained mobile. Since there was PC of evidence of a crime in the car and the car was mobile, the automobile exception applied. State v. Wiggins
Vehicle Stop - Reasonable Suspicion
The following facts are sufficient to create reasonable suspicion of a bike theft:
- The homeowner's report that the truck, which she described, had been parked in front of her house for a while;
- The homeowner's observation of a person approaching the truck on a bicycle and placing the bicycle in the back of the truck;
- It was 1:50 am;
- It was a high crime area;
- The officer's observations of furtive behavior as the patrol car passed.
- The officer's knowledge that a person committing theft will often park a vehicle some distance from the theft and then rejoin the vehicle after the theft is complete.
Vehicle Stop - Reasonable Suspicion
Where a witness to an accident tells 911 that a specific car caused the accident, it constitutes reasonable suspicion to stop the car, if the information given is sufficiently detailed to infer that it is not fabricated out of whole cloth. Here, the witness gave the color, model and license plate of the car. Thus, the officer was allowed to stop the car when he came across it a block away from the accident scene, even though he had not talked to the witness or been to the scene. State v. Simpson
Preservation - MJOA - Tampering With a Witness
A motion for judgment of acquittal is unpreserved if it is made on a different element than the one raised on appeal. Here, the trial attorney argued that the state didn't prove that defendant attempted to induce the witness to lie. On appeal, the defendant argued that he didn't know the person was going to be a witness in an official proceeding. Different element. Unpreserved. State v. Diaz-Guillen
Termination of Parental Rights - Detriment to Child
A parent's condition never "speaks for itself" in terms of determining harm to the child. Here, mother was a serious drug addict for over 20 years with little hope for recovery and clearly not able to care for her child at the time of the termination hearing. But the child was happy and healthy in the care of her grandmother. Potential harm is sufficient. But purely speculative harm is not. The state relied on the same speculation to establish that reintegration was unlikely and that termination was in the child's best interests. Reversed. DHS v. AMC
