Oregon Appellate Court 5-16-2012
by: • May 16, 2012 • no comments
Remand - Assault III cannot be imposed after a reversed Assault II.
Assault III is not a lesser included of Assault II. Therefore, when an Assault II conviction is reversed because there was no dangerous weapon, the court may not impose a conviction of Assault III. Even if the elements of Assault III were found in another conviction from the same trial. State v. Jose Angel Delaportilla
TPR - Even though Mom was a Minimally Adequate Parent, Her Rights Could Be Terminated for Risky Contact with Dad.
Although mother's interactions with child mostly indicated that she was a minimally adequate parent, the mother's mental condition and inability to recognize abusive father as a safety risk prevented the child from reintegration into mother's home. Her parental rights were terminated. DHS v. CMM
Jail Inventory Policy Overbroad if it Allows Search of Closed Containers
An Umatilla County Jail policy authorizing inventory procedures that would permit an officer to search closed containers was impermissibly overbroad, in violation of Article 1, Section 9 of the Oregon Constitution. During a search of the defendant's property, the arresting officer discovered a closed cigarette box belonging to the defendant. After opening the closed cigarette box, the officer discovered methamphetamine. The court found that the evidence discovered was an unlawful search, as there was no indication that the police inevitably would have obtained the disputed evidence but for the inventory policy of the jail. An inventory policy cannot authorize police to open closed containers (e.g., a fishing tackle box should be identified as "one fishing tackle box." The items inside the fishing tackle box should not be identified). The scope of the inventory must be limited so that objects are scrutinized only to the extent necessary to complete the inventory. State v. Taylor
Probation Condition Must Be Related to Charge or History
Court erred in imposing special conditions of probation that prohibited defendant from having contact with minors or frequenting places where minors congregate. Such conditions were not reasonably related to defendant's underlying charge of third-degree sexual abuse of a 38 year-old woman, nor to his history. Although defendant had a history of committing acts of sexual abuse, there was no evidence that any of these incidents had involved minors. State v. Gaskill
A Prior Bad Act is Admissible to Prove Intent
Victim's testimony in an assault/harassment case that defendant had previously given her a "fat lip" was held to be admissible as 404(3) evidence. The evidence of defendant's prior bad act was admitted through a motion in limine in order to prove defendant's intent, even though the issue at defendant's trial was whether the alleged act occurred at all, and not whether it was intentional. Although intent was not a contested issue for an assault charge, it was a contested issue for a harassment charge. Evidence of intent was admissible to prove why defendant intentionally punched or burned victim, and specifically, that defendant punched her and then burned her with the intent to harass or annoy her. State v. Hutton
Driving by petitioner's home multiple times a day not enough to support an SPO.
The record did not support a determination that respondent's behavior would have caused a reasonable person in petitioner's position to feel apprehension for her personal safety, and thus, it was error to provide petitioner with SPOs. Respondent's behavior in driving by petitioner's house and photographing it, although unsettling, did not itself evince any threat to petitioner's safety. J.L.B. v. Braude
Jury trial waivers must be in writing.
Per curiam opinion: Defendant did not put his waiver of a jury trial in writing and thus his bench trial conviction must be reversed. State v. Stone
