Oregon Appellate Court 10-19-11

by: Abassos • October 18, 2011 • no comments

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

• Theft by Deception - Intent to Defraud
• Criminal Trespass II - Invitation to Enter
• Appeals - Appellate Jurisdiction
• Sex Cases - Prior False Accusations
• Punitive Contempt of Court - "Willfully"
• Appellate Discretion - "Strategic Purpose"
• Reasonable Suspicion - DUII
• Dependency - Continuation of Jurisdiction Based on Original Jurisdictional Judgment
• Dependency - Change of Permanency Plan to Adoption

Theft by Deception - Intent to Defraud

Without more, failure to pay rent is not sufficient to establish an intent to defraud. The element of intent to defraud requires a "conscious objective to take property from another person by deception." Here, there was a dispute about rent and a statement by defendant to the landlord that she did not owe anything, and that he should not contact her again. That statement was insufficient to establish an intent to defraud because, even if it was deceptive, it didn't show an intent to defraud coupled with a promise. At best, it was an attempt to avoid paying past rent due. In terms of the failure to pay rent at the time, the state failed to establish any deception at that time. State v. Reynolds

Criminal Trespass II - Invitation to Enter

Defendant was not guilty of criminal trespass where he was excluded from an apartment property by written notice of exclusion from the manager but invited into the common area by a tenant months later. The tenant's invitation gave defendant the privilege to be present because a tenant has actual authority to invite guests onto the property. Criminal trespass is based on property rights, and the state did not in any way establish that the tenant's property rights were limited by either the manager's exclusion or the lease. State v. Schneider

Appeals - Appellate Jurisdiction

An order denying a "motion to vacate" a judgment of conviction is not an appealable order. ORS 138.053 limits appellate jurisdiction, and it does not include motions to vacate a judgment. This is a strange case, procedurally. There was a second amended judgment of conviction where the defense attorney agreed with the state that the judgment did not reflect the agreed upon sentence and should be amended to impose additional incarceration. Defendant didn't learn about the additional incarceration and the 2nd judgment until after she was released on PPS. In an attempt to avoid returning to prison for the corrected sentence, she hired an attorney who filed a motion to vacate the judgment (way after the 30 day appeal period had run). The trial judge tried to make his order appealable by saying he was reimposing the judgment but the appellate court would have none of it. They point out that the defendant could have appealed from the actual judgment belatedly under ORS 138.071(5), but did not do so. State v. Coleman

Sex Cases - Prior False Accusations

If there is some evidence to support the falsity of a past sex abuse accusation then the accusation is admissible unless it is substantially outweighed by the risk of prejudice, embarrassment, confusion or delay. Because there was no balancing test here, the court remands for the trial court to perform a balancing test and conduct a new trial if the accusations are admissible. As an important aside, the court quickly dispenses with the state's argument that the issue was un-preserved because of an insufficient proffer: "an offer of proof is not a "mini-trial"; it is sufficient for the defense counsel to tell the judge what evidence is expected to be presented." J. Rosenblum dissents on different preservation grounds. State v. Nelson

Punitive Contempt of Court - "Willfully"

A willful violation of an order to pay child support exists where the person is aware of the court order and neither complies with the order nor attempts to modify the order. Defendant tried to argue that simply failing to pay child support was not a violation. That willfulness requires, at least, evidence that he could have but didn't pay the support. The court disagrees. State v. Keller

Appellate Discretion - "Strategic Purpose"

The court decides not to exercise its discretion to correct a plain error of a six year probation where only five years was legally allowed because the defendant could have strategically failed to object in order to gain more time to pay off the financial obligations and complete his probationary requirements. State v. Banks

Reasonable Suspicion - DUII

An officer may inquire about drinking during a traffic violation stop where reasonable suspicion for a DUII exists. There is reasonable suspicion for DUII where the officer observes a flushed appearance, slow and lethargic movements, an unusually low voice, multiple traffic violations and the defendant continuing to eat a hamburger with a dog in his lap during the traffic stop. State v. Braukman

Dependency - Continuation of Jurisdiction Based on Original Jurisdictional Judgment

Mother's motion to dismiss should have been granted where there was no longer any basis to continue jurisdiction based on the original judgment. DHS v. GE

Dependency - Change of Permanency Plan to Adoption

The court reverses and remands an un-preserved failure of the court to make the statutorily required findings in the judgment. DHS v. LB