Oregon Appellate Ct - Aug 31, 2016
by: Sara Werboff • September 2, 2016 • no comments
Identity Theft - "Transfer" of Personal Information Requires Giving Possession or Control to Another for Fraudulent Purposes
As used in the identity theft statute, ORS 165.800(1), a person "transfers" the personal identification of another by selling or giving possession or control of that personal identification to a third person for fraudulent or deceptive purposes. Defendant was charged with identity theft by transferring for using the victim's credit card to make purchases at two stores. At the first store, defendant personally used the card. At the second store, defendant gave the card to his companion, who then used it to make purchases. In interpreting the meaning of "transfers" in the identity theft statute, the court concludes that the text, context, and legislative history indicate that the term "transfers" was included in the statute to address the particular harm of trafficking personal identification. In applying the proper interpretation of "transfers" to the facts, the court concludes that defendant should have been acquitted of the count where he personally used the victim's credit card. Although defendant could have been convicted of a different crime, he was not guilty of giving possession or control of the card to another merely by using it to make purchases at a store. However, defendant was not entitled to an acquittal on the other count, because the evidence showed that he gave possession of the card to his companion so that she could use it for fraudulent purposes.
State v. Bowen, 280 Or App 514 (2016) (Tookey, J.)
Jury Instructions - Plain Error Not to Give Jury Concurrence Instruction when State Advanced Both Principal and Aider and Abettor Theories
Where the state argued that defendant was both a principal and aided and abetted in a crime, it was plain error for the trial court not to instruct the jury that 10 or more members must concur as to the theory of criminal liability. Where defendant was a participant in a burglary and aggravated theft, the state argued that defendant was guilty as a principal or as an aider and abettor, and instructions were given on both theories, the trial court's failure to give a concurrence instruction is apparent error. For other counts where the evidence showed only that defendant was the principal, the error was not plain and the court declines to review it.
State v. Bowen, 280 Or App 514 (2016) (Tookey, J.)
Search & Seizure - Third Party Consent was Valid - Warrantless Seizure was Unlawful
The court concludes that evidence obtained by the seizure of four of defendant's horses should have been suppressed. Defendant was charged with 18 counts of animal neglect. Four of those counts involved horses that defendant boarded on two neighboring properties. The owners of those properties allowed the police onto their properties and handed over the horses to the police. Defendant challenged both the search of the properties and the seizure of the horses. The court concludes that the search was lawful because the owners of the property had actual authority to consent to a search and "nothing in the record * * * [indicates] that defendant had any exclusive or even joint control over the third parties' real property that gave her the right to exclude the property owners from their own property" including the areas where her horses were kept.
The court further concludes, however, that the warrantless seizure of the horses was unlawful. The state did not establish that defendant had abandoned her possessory interests in her horses. The evidence supports that defendant did retain that interest because she was expected to care for the horses and did not abandon ownership of them. The court further explains that even if police have made a lawful entry into a private space, they may not seize property unless it is "plain view" evidence of a crime (which the state did not argue here) or some other exception to the warrant requirement, such as exigency, applies. Cases that did permit officers to seize anything on a property regardless of ownership "cannot stand for the blanket proposition that, whenever law enforcement officers have received consent to search real property, they may seize any personal property found within it" without a constitutional basis.
State v. Voyles, 280 Or App 579 (Shorr, J.)
Revocation of Probation - Proper to Sentence Defendant to Maximum Under ORS 137.717 in Effect at Time of Original Conviction
The court holds that the trial court did not err in sentencing defendant to the maximum under the version of ORS 137.717(1) in place at the time of conviction, even though that statute was amended before defendant's probation was revoked. At the time of defendant's convictions for identity theft, defendant was subject to a maximum "presumptive" sentence of 34 months. The trial court at that time sentenced defendant to probation. Defendant violated probation, and the trial court revoked probation and sentenced defendant to 34 months. However, in the time between defendant's conviction and the revocation, the legislature had amended ORS 137.717(1) and, had defendant been convicted of the same crimes at the time of her revocation, she would have been subject to a maximum sentence of 28 months. The court concludes that the trial court could impose the maximum sentence "that could have been imposed at the time that a defendant was initially sentenced," relying on OAR 213-010-0002(2). Defendant argued that the amendments to ORS 137.717 overrode OAR 213-010-0002(2) because the amendments applied to "sentences imposed" after the the effective date of the amendments and the presumptive sentence was not "imposed" until the trial court revoked her probation. The court rejects that argument and holds that "a sentence imposed under ORS 137.717 is a sentence initially imposed upon conviction."
State v. Orcutt, 280 Or App 439 (2016) (Sercombe, P.J.)
Denial of Motion to Sever is Not Error when Sex Abuse Allegations are of Same or Similar Character
The court concludes that because the allegations of sexual abuse were of the same or similar character and defendant's was not substantially prejudiced by joinder, the trial court did not err in denying defendant's motion to sever charges concerning two different victims. Defendant was charged with sodomy and sexual abuse of his nephew, K, in the 1990s, and sodomy and sexual abuse of a different nephew, J, more than a decade later. The court holds that the crimes involving K and the crimes involving J were of a similar character because defendant "target[ed] his young, male family members for sexual purposes." The court also holds that the joinder did not substantially prejudice defendant even though the allegations were not cross-admissible because the evidence was "sufficiently simple and distinct to mitigate the dangers created by joinder." Additionally, the trial court gave a limiting instruction that the jury could not consider evidence concerning one victim as evidence of crimes concerning the other victim unless and until it had concluded that the charged conduct had taken place and at least 10 jurors agreed on the verdict.
State v. Buyes, 280 Or App 564 (2016) (Garrett, J.)
Restitution - Damages for Hit & Run Include Money Spent by Insurer for Purposes of Restitution
ORS 811.706 authorizes restitution awards to insurers. Defendant was convicted of failing to perform the duties of a driver after she left the scene of an accident where the victim's car sustained $5,307.52 in damages. The trial court ordered that defendant pay $500 for the deductible to the victim and the balance to the insurer. Defendant argued that under ORS 811.706 the trial court only could award restitution to the owner of property. The court concludes that the plain text of the statute contains no such limitation, and any suggestion in earlier case law was dicta. ORS 811.706 authorizes a restitution award of the amount of damages caused by the defendant in the accident underlying the hit & run, regardless of who has borne the financial burden.
State v. Anderson, 280 Or App 572 (2016) (Dehoog, J.)
Restitution - Defendant Bears Burden of Proving that Victim Failed to Mitigate Damages
The trial court did not err in awarding restitution for the full value of the victim's motorcycle after concluding that defendant failed to prove the value of parts that the victim could have sold to mitigate his damages. Defendant and some accomplices stole a motorcycle from the victim that, at the time it was taken, was worth $4,000. The motorcycle was returned to the victim with several parts missing and the victim sold the damaged motorcycle to a repair shop for $100. Later, an accomplice returned the missing parts. The police offered the parts to the victim, who declined to take them. The trial court held a restitution hearing where defendant's accomplice asserted that the missing parts could be sold for roughly half their retail value. The trial court ultimately concluded that the victim was required to mitigate his losses by accepting and reselling the parts, but that defendant failed to prove the value of the parts. The court concludes the trial court's ruling was not error. Once the state has proven the value of the motorcycle at the time it was stolen, it becomes defendant's burden to show that reasonable conduct on the victim's part would have avoided some of the loss and to establish the amount of damages that the victim reasonably could have avoided.
State v. Rock, 280 Or App 432 (2016) (Armstrong, P.J.)
Jury Instructions - Failure to Instruct on State's Burden to Disprove Defense is Plain Error
The trial court's failure to instruct the jury that the state was required to disprove beyond a reasonable doubt defendant's defense of property defense was plain error. The trial court's instruction, which omitted the burden of proof, did not inform the jury that the state was required to prove that the defense did not apply beyond a reasonable doubt, and therefore the trial court's instruction created an erroneous impression of law that prejudiced defendant.
State v. Gore, 280 Or App 624 (2016) (De Muniz, S.J.)
Board of Parole - Petition for Judicial Review is Dismissed as Moot
The court concludes that petitioner's petition for judicial review of a parole board order is moot because petitioner had already received the only relief to which he had been entitled. The dispositive question in this case is whether the board had previously set a release date for petitioner that had passed before the board issued the order that petitioner is currently appealing. If it had, then petitioner would have been entitled to release because "if a release date was scheduled and elapsed without the board first having found a valid reason to postpone release, * * * later events cannot furnish a basis for postponing release." If it had not, petitioner would only have been entitled to relief requiring the board to "commence the release-consideration process" which includes a hearing to set a release date followed by an exit interview where the board may choose to postpone release. In this case, the court concludes that the board did not set a release date, therefore the most relief that petitioner could receive was a continuation of the release-consideration process. Because that process had continued while petitioner was appealing the board's order, and during two exit interviews the board concluded that petitioner should not be released, the petition was moot.
Atkinson v. Board of Parole, 280 Or App 410 (2016) (Armstrong, P.J.)
Post-Conviction Relief - State's Motion for Summary Affirmance Granted
The court grants the state's motion for summary affirmance of the denial of petitioner's post-conviction petition because petitioner failed to raise a substantial question of law as to both elements of inadequate and ineffective assistance of counsel. ORS 138.660 authorizes the court to summarily affirm a post-conviction judgment when the appeal does not present a substantial question of law. A substantial question of law in the post-conviction context has the same meaning as that phrase does in other contexts, viz, "a soundly based, firmly supported question capable of adjudication as to what the law is that is presented by the facts of the particular case at bar."
The post-conviction court concluded that petitioner failed to prove both elements of inadequate and ineffective assistance - deficient performance and prejudice. Petitioner did not challenge the post-conviction court's finding on prejudice. Where, as here, there are separate and independent bases supporting a trial court's decision, where each of those bases is a sufficient basis for affirmance, and where an appellant challenges only one of those bases, the court holds that the appeal as a whole does not present a substantial question of law.
Austin v. Premo, 280 Or App 481 (2016) (Egan, P.J.)
Judgments - DUII Conviction Fee - Per Curiam
The court reverses a $255 DUII conviction fee imposed in defendant's fourth-degree assault and second-degree criminal trespass case. The court writes specifically to note that Multnomah County used judgment forms that have the DUII conviction fee already typed into the form under the "Money Award" section. Accordingly, the DUII conviction fee is imposed unless it is affirmatively deleted, even in non-DUII cases. A judgment that carries a money award can be enforced by the state, and therefore even an erroneous form may carry consequences for a defendant.
State v. Williams, 280 Or App 631 (2016) (per curiam)
Mandatory State Amount - Per Curiam
The state concedes that it was error for the trial court to impose a $60 "Mandatory State Amount" and the court reverses that portion of the judgment.
State v. Lovingier, 280 Or App 629 (2016) (per curiam)
