Oregon Appellate Ct - July 7, 2016
by: Amanda Alvarez Thibeault • July 7, 2016 • no comments
“Offer to Purchase” – ORS 260.715(9)
A defendant violated ORS 260.715(9), the statute criminalizing the knowing “offer to purchase, for money or other valuable consideration, any official ballot,” by posting an ad to Craigslist stating that he would give $20 to a person who would bring the person’s official ballot to defendant, let defendant complete it, sign the person’s own name and submit the ballot to an elections volunteer. Defendant communicated that he was proposing to acquire person’s ballot in exchange for money, which even if he did not actually intend to follow through with, was sufficient to qualify as an offer.
State v. Hirschman, 279 Or. App. 338 (2016)
Article I, Section 8 - Freedom of Speech – ORS 260.715(9)
The statutory provision on making an “offer to purchase” a ballot contained in ORS 260.715(9) violates Article I, section 8 of the Oregon Constitution because it is directed as the content of the expression. The statute prohibits the making of a specific type of offer and in turn, criminalizes the act of communicating a certain message. Further, the statute is not designed to protect against any harmful effects of the prohibited communication in a way that would make it constitutional. Even assuming the statute was designed to prevent public doubt in the validity of an election, a person’s communications could violate ORS 260.715(9) whether or not the targeted harm occurs.
State v. Hirschman, 279 Or. App. 338 (2016)
Dependency – Current Threat of Serious Loss or Injury – Ongoing Mental Health Issues
The evidence was sufficient for the juvenile court to take jurisdiction over mother’s child on the grounds that her mental illness posed a current threat of serious loss or injury to child where, although mother’s illness was managed at the time of the hearing, it had only recently come under control. Moreover, mother had an extensive history of severe mental illness which required multiple and lengthy hospitalizations over the previous seven years, causing her to alienate all her family and friends. Thus, the evidence was sufficient for the trial court to take jurisdiction over child.
DHS v. S.M.S., 279 Or. App. 364 (2016)
Prior Bad Acts – Motive – No Need for Leistiko Instruction
Evidence that the defendant threatened the victim with a baseball bat seven to ten days before the victim was bludgeoned to death with a baseball bat was relevant to show the defendant’s hostile motive to the victim. The evidence tended to show that the defendant’s animosity toward the victim was so strong that “he was moved to engage in violence.” Moreover, because the evidence was motive evidence and not intent evidence, there was no need for a Leistiko instruction. Lastly, the court properly performed the 403 balancing test. Even though the trial court was “cursory” in its discussion, it still adequately balanced the probative nature of the evidence against the prejudice to the defendant.
Additionally, evidence that the defendant “ruminated” about killing his ex-girlfriend, while holding a baseball bat, was relevant to prove the defendant’s motive to kill the victim because, alongside the state’s other evidence (including defendant’s anger at the victim for spending time with defendant’s ex girlfriend and the victim’s statement to defendant that he had been intimate with defendant’s ex-girlfriend), a jury could infer that defendant spent time contemplating about killing his ex-girlfriend because he was angry about the end of their relationship and, further, “that he would have been moved by that same anger to kill the victim due to his jealousy of the victim’s relationship with [defendant’s ex-girlfriend].” Finally, defendant’s claims that the court failed to properly conduct 403 balancing as to this bad act were unpreserved. Affirmed.
State v. Clarke, 279 Or. App. 373 (2016)
PCR – Failure to Request a Boots Instruction
Petitioner received ineffective assistance of counsel where his attorney failed to request a Boots instruction in a multi-count coercion case. Although counsel’s failure to request a Boots instruction for two of the counts was reasonable (because the evidence at trial disclosed only one such occurrence as to each count), counsel’s failure to request a Boots instruction as to Counts 7 and 8 could not be justified. As to Counts 7 and 8, the state presented at least two, temporally, spatially, and substantively distinct occurrences of coercion. Given that evidence, it was at least possible that jurors could return a guilty verdict on Count 7, Count 8, or both without concurring on the same act of coercion. Further, there was no reasonable tactical reason for not requesting such an instruction.
Mellerio v. Nooth, 279 Or. App. 419 (2016)
Per Curiam Attorney’s Fees Reversal
Per curiam attorney’s fees reversal where no evidence of defendant’s ability to pay.
State v. Jaynes, 279 Or. App. 438 (2016)
Per Curiam Reversal of $60 Mandatory State Assessment
Per curiam reversal of $60 dollar fees where the trial court lacked the authority to impose $60 “Mandatory State Amount” assessments.
