Oregon Appellate Court 08-31-11
by: Abassos • August 30, 2011 • no comments
Read the full article for details about the following new cases:
- Stop - Point of Seizure/Reasonable Suspicion
- Statute of Limitations - Commencement of a Prosecution
- Search - School Search - Reasonable Suspicion
- Identity Theft - Mere Possession of stolen ID
- Impeachment - Prior Convictions - 15 years - Confinement
- Prejudice - Lopez-Minjarez (natural and probable consequence instruction is bad law)
- PCR - Judgment Fails to State Legal Basis
Stop - Point of Seizure/Reasonable Suspicion
Defendant was not stopped when an officer pulled in behind defendant's parked car, aimed the spotlight at him, knocked on defendant's window, asked defendant to get off his cell phone and then asked if he was on probation or parole. Defendant also wasn't stopped merely because the officer asked for a drivers license and defendant handed over a DOC inmate ID card. "At least since Ashbaugh", questions which ordinary citizens would find offensive (like "Are you on probation?") as well as requests for ID, do not amount to a stop if the officer's words are conversational in tone and there's no non-verbal show of authority like multiple officers or drawn guns. The court implicitly finds there was no such show of authority in this case.
The officer did not have reasonable suspicion of a parole violation merely because defendant told the officer he was on parole and intended to go into a bar. A prohibition from entering bars is not one of the standard conditions and thus is not prevalent enough to amount to reasonable suspicion without more.
However, the officer did have reasonable suspicion of driving without a license when defendant handed over an inmate ID card instead of a drivers license. State v. Jones
Statute of Limitations - Commencement of a Prosecution
A prosecution is not commenced, for the purpose of the statute of limitations, either when the DA indicts the case or when the DA sends the defendant a certified letter informing her of the prosecution and her arraignment date. An indictment is plainly insufficient under the statute and a letter is not legal process, as required by the statute. The court specifically rejects the state's argument that because defendant had notice of the arraignment via the letter, she was able to gather evidence and start her defense, which is the point of the statute of limitations. The problem with the state's argument is that "the text of ORS 131.135 is patently inconsistent with that view." Legal process, not notice, is required. State v. Grierson
Search - School Search - Reasonable Suspicion
A student may be searched if a school official reasonably suspects, based on specific and articulable facts, that the student is in possession of something that poses an immediate threat. This is a new exception created in State v. M.A.D.. Here, defendant, who had a history of drug and tobacco use, was apprehended in a bathroom with a lighter just before the search. The association between possessing a lighter and possessing tobacco or marijuana is not speculative. State v. B.A.H.
Identity Theft - Mere Possession of stolen ID
Mere possession of stolen identification is insufficient to establish the intent required for identity theft. See, e.g., State v Martin. Here, however, there was more than mere possession. Defendant was seen rummaging through victim's purse for victim's wallet. Defendant stole the wallet and moments later discarded it except for victim's drivers license and credit card. A jury could find that a person who quickly sought out those two items was intending to use them to deceive or defraud. State v. McAtee
Impeachment - Prior Convictions - 15 years - Confinement
A witness may be impeached with a prior felony conviction so long as it has not been more than 15 years from the date of conviction or release from confinement, whichever is later. Defendant's conviction and initial incarceration were more than 15 years old but defendant had spent a month in jail on a parole violation within the 15 year period. The court finds that a parole sanction counts as confinement for the purpose of calculating the 15 years under OEC 609(3)(a). The underlying point of the evidentiary rule is that a conviction no longer reflects on a person's credibility when they've spent 15 years outside of incarceration. The implication is that reincarceration resets the rehabilitation clock and, therefore, the credibility clock. State v. Rowland
Prejudice - Lopez-Minjarez (natural and probable consequence instruction is bad law)
Defendant was convicted of assault and attempted murder on an aid and abet theory arising out of a robbery. This was clearly reversible error in that the DA argued to the jury that defendant need not have intended an assault or murder if it was a natural and probable consequence of the robbery. In any case, the Supreme Court recently found that the natural and probable consequences instruction is itself sufficiently prejudicial to require reversal and is not somehow fixed by other more accurate instructions. Reversed. State v. Fernandez
PCR - Judgment Fails to State Legal Basis
Where a judgment granting or denying post-conviction relief fails to state a legal basis, the proper remedy is to reverse and remand for the court to enter a judgment in compliance with ORS 138.640(1). Tyree v. Nooth
