Oregon Appellate Court October 17, 2012

by: Erick Tobias • October 18, 2012 • no comments

Mens Rea Jury Instruction Must be Statute Specific

The state must prove mens rea with regard to the specific elements of the substantive criminal statute. Here, defendant was charged with second-degree criminal mischief requiring "damages." Damages are a result not a circumstance Thus, a jury instruction defining reckless as awareness and conscious disregard of "a risk that a result will occur or that a circumstance exists" was reversible error. State v. Davis, __ Or App __ (2012).

Officer's Decision to Impound Vehicle, And Thus Conduct Inventory, May Be Discretionary

An officer's decision to impound a vehicle may involve the exercise of discretion, even though that discretion will determine whether an inventory of the vehicle occurs. The Portland Police Bureau towing policy mandates towing and inventorying a vehicle when citing a driver for driving uninsured, but not when citing for failure to carry proof of insurance. An officer may constitutionally choose which citation to issue. State v. Penney, __ Or App __ (2012).

First Degree Criminal Mistreatment Not Applicable to Affirmative Conduct

"Withholding necessary and adequate…physical care" under ORS 163.205(1)(a) does not apply to affirmative conduct or a failure to stop engaging in that affirmative conduct. Here, defendant's act of placing her hand over the victim's mouth leading to victim's death did not constitute first-degree criminal mistreatment. State v. Kaylor, ­__Or App__ (2012).

Theft by Receiving - Defendant "Knows" Property Was Subject of Theft Where He Knew the Victim Disputed His Right to Possess the Items

"[I]n order to be found guilty of theft by receiving, defendant must have known or believed that the articles of personal property at issue were the subject of theft." Here, the victim was in the hospital and asked defendant to sell his property and give the money to victim's wife. Instead, the defendant retained the property to settle a debt that the defendant felt victim owed to him. A year later, the victim tried to recoup the property, and the police contacted defendant. The court holds that a rational trier of fact could have found that the defendant knew the property he retained was the subject of theft. State v. Smith, __ Or App __ (Oct 2012).

Relevancy of "Delayed Reporting" Testimony in Sexual Abuse Cases

Expert testimony regarding "delayed reporting" in a child sexual abuse case may be relevant even when defendant does not intend to impeach the complainant's credibility based on that delay. Here, testimony on delayed reporting was relevant to explain the five-year reporting delay and to counter any inference that the delay was indicative of fabrication. State v. White, __ Or App __ (2012).