Oregon Appellate Court 5-9-2012

by: Abassos • May 9, 2012 • no comments

ECSA - Graphic Images of Child Porn are Still Relevant Despite Trial Stipulation

The state may present the allegedly possessed images of child porn to the jury in an ECSA case, despite defendant's stipulation that the images depicted sexual conduct involving a child and that their creation constituted child abuse. The images are still relevant to prove mental state. To prove Encouraging Child Sex Abuse, the state must establish that the defendant knew the images depicted sexual conduct involving a child and that his purpose was to arouse sexual desire. The court says that the graphic nature of the images tends to establish that any reasonable person would know what the images depicted and that any person who possessed such images would be doing so to arouse sexual desire. State v Kinney

PCR - Adequacy of Remedy for Breach of Plea Agreement

To be adequate, a remedy in a PCR case involving a broken plea deal must provide the petitioner with the benefit of the agreement that led to the plea. Here, the prosecutor agreed to recommend to the parole board, after 20 years, that defendant be released. But the prosecutor did not make such a recommendation and the parole board declined to release. It was not inappropriate for the PCR court to order specific performance. That is, to require the prosecutor to submit the agreed upon letter and require the parole board to have a new hearing to consider the letter. Specific performance was an adequate remedy even though it was two years late and the prosecutor's breach could signal a disagreement with actual release. Lopez v Mills

Restitution - Insurance Companies - Preservation

Defendant argued to the trial court that the insurance companies should not be reimbursed in this DUII-injury case because "there's no evidence here" and "the civil system" should be allowed to sort it out. On appeal, defendant argued that the evidence presented by the state, regarding the insurance company losses, was too speculative because the two companies were still in negotiations. The first argument does not preserve the second argument because "defendant's first argument concerned the proper mechanism for reimbursement, not the amount". State v Moore.

DUII - Miles Instruction

A Miles instruction should not be given in the absence of evidence that defendant's physical condition made him more susceptible to alcohol. Even in a bench trial. No new law here. Just a new trial. State v Massey