Oregon Appellate Ct. - Oct. 29, 2014
by: Frangieringer and Abassos • October 29, 2014 • no comments
Impeachment – Prior Acts Only Relevant If They Go To The Precise Fact Testified To
Admission of prior acts to impeach defendant is improper where the state intends to “contradict an alleged general perception about defendant’s character and not [defendant’s] precise factual statement.” Here, defendant allegedly stabbed complainant. State sought to introduce prior incident where defendant swiped a knife at a bicyclist to contradict defendant’s testimony that he had never stabbed anyone. Because the prior act did not go to whether defendant had actually stabbed someone, it was not relevant impeachment evidence. State v. Stapp, 266 Or App ___ (2014).
Identity Theft – Withdrawing Funds As A Legal Joint Account Holder Is Not Identity Theft
Not identify theft to use shared information to access a joint back account to withdraw funds. Defendant was charged with identity theft for withdrawing funds from two accounts that she held jointly with her father. Because she withdrew money using “personal information” that she had access to as being a joint account holder, she did not use “personal identification of another person” for the purposes of the identity theft statute. State v. Zibulsky, 266 Or App ___ (2014).
Distribution – Spending A Month At A Grow House Sufficient To Show Intent to Deliver
Frequency and duration of defendant’s presence at a marijuana grow operation is sufficient to support jury inference that defendant intended to distribute marijuana. Here, police observed defendant enter a house being used to grow marijuana every day for a month. They didn’t see anyone else enter the house and found marijuana trimmings in defendant’s truck. Based on these facts, it was a logical and reasonable inference for the jury to find that defendant intended to transfer marijuana. State v. Chen, 266 Or App ___ (2014).
Continuance – Obtaining New Counsel A Day Before Trial Grounds For Continuance
Effective assistance of counsel weighs heavily against judicial efficiency when determining whether to grant defendant’s continuance when delay is beyond the control of the defendant and the defendant was prompt in trying to remedy the delay. Here, two days before trial, following an email from the prosecutor, defendant’s counsel believed that she could no longer effectively represent her. The following day defendant obtained replacement counsel who promptly requested a continuance. Trial judge denied citing judicial efficiency. Because defendant had right to effective assistance of counsel, and original counsel’s loss of faith was not caused by defendant, and the defendant immediately obtained replacement counsel, the right to effective counsel outweighed the need for judicial efficiency State v. Thomas, 266 Or App ___ (2014).
Stalking Protective Order – Prior Non-Injurious Contact Contributes To Objective Fear in Later Verbal Contact
Prior contacts give context to whether a petitioner for an SPO is objectively concerned for his safety in a subsequent, exclusively verbal, contact. Here, respondent had attempted to throw creamer at petitioner during a melee between members of a church. Seven months after the melee, respondent told petitioner that he would “depart this church dead or alive.” Given the respondent’s behavior during the first contact, it was reasonable for petitioner to feel apprehensive about his safety, even though the subsequent contact was verbal. E.T. v. Beletem, 266 Or App ___ (2014).
Alcohol to Minors – Tenant Does Not Authorize Access To Alcohol By Merely Being Present
Furnishing alcohol to a minor occurs when a “person authorizes minors’ access to an alcohol supply over which the person exercises control.” Here, the evidence was insufficient to show that defendant, a tenant in a house whose owner was throwing a party, authorized access. No evidence was provided to show that defendant had control over the vodka or whether the vodka was provided by someone who came to the party at a later time. Because there was no proof over whether the vodka belonged to defendant or if someone else brought the vodka, there was insufficient evidence to show that defendant had authorized minors’ access to it. State v. James, 266 Or App ___ (2014).
Traffic – Needing To Use The Bathroom Is Not An Excuse To Impeding Traffic
Stopping in the middle of the road to make a turn to use the restroom so as to cause others to slow and swerve to avoid collision impedes traffic under ORS 811.130 (impeding traffic). Here, defendant stopped in the middle of the road and then moved in front of several oncoming cars in order to get his son to a restroom. Because a rational finder of fact could find, under these facts, that defendant caused other vehicles to slow or swerve out of the way, he was guilty of impeding traffic. State v. Chen, 266 Or App ___ (2014).
Search – Straw Considered Drug Paraphernalia
Officer has reasonable suspicion of criminal activity based on informant’s report when officer confirms the details of the report, notices drug paraphernalia, and knows the area is known for drug distribution. Here, officer received an informant report that defendant was purchasing drugs from a yellow Subaru. Officer went to the location, an area known for heroin distribution, and noticed the yellow Subaru. He went up to the window of the car and saw defendant place his hand over a straw and lighter, which the officer knew were often used to smoke heroin. Given the officers knowledge of the surrounding area and the confirmation of the informants report, there was sufficient information to justify a stop.
Judge Egan’s dissent: Officer parking his car 10-25 feet behind defendant, blocking defendant’s exit from the parking lot, was an objective show of authority that amounted to a stop because it “effectively restricted defendant’s freedom to terminate the encounter.” Furthermore, the informant report that defendant was involved in an “illegal drug transaction” was too imprecise, and the “paraphernalia” to innocuous to support a reasonable belief that defendant had committed a crime. State v. Rudnitskyy, 266 Or App ___ (2014).
Stalking Protective Order – A Letter Is Not An Object
A letter is not an object, but a written communication under ORS 163.730 (setting out 11 categories of contact that may violate an SPO, including written communications and objects). Here, state charged defendant with sending an object to complainant’s home in violation of a stalking protective order when defendant mailed a letter to the complainant. Because it is not required that an object cause reasonable apprehension under ORS 163.750(1), whereas a written communication must, a letter cannot be both. Otherwise the state could choose to charge written communications as objects and get around the reasonable apprehension element. State v. Meek, 266 Or App ___ (2014).
