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Oregon Court of Appeals 03-03-10

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by: Abassos • March 2, 2010 • no comments

Read the full article for details about the following new cases:

  • Stop - Reasonable Suspicion
  • Merger - Assault I/Assault II
  • Boyd Delivery - Jury Instruction
  • Right to Counsel - Proper Request
  • Reasonable Suspicion - Dissipation
  • Preservation - Plain Error
  • Right to Remain Silent
  • Theft - Multiple items Merge
  • False Information - Sufficiency
  • Prior Bad Acts
  • Merger - Theft


Stop - Reasonable Suspicion

A reasonable person would not feel free to leave while an officer is calling in for a warrant check. So, assuming the actual person subjectively does not feel free to leave, the encounter is a stop. The stop in this case was not one that was supported by reasonable suspicion. The officer's articulable facts were that defendant played with the front of his pants before going into a convenience store and came out eating chips. If this doesn't seem like obvious evidence of a crime then you're not thinking creatively enough. You see, the officer knew, from his training and experience, that people who are about to rob a convenience store often keep their mask and gun in the front of their pants. So even though the officer didn't see a mask or a gun it was clear what was going on. Robbers also often purchase something small like chips to create a subterfuge right before the robbery. The trial court bought it. The appellate court doesn't buy it and doesn't mince words in rejecting the logic of the judge. State v. Khoshnaw

Merger - Assault I/Assault II

Where defendant beat, hit, kicked and pounded the defendant and his head into the cement, the Assault I for serious physical injury with a dangerous weapon (cement) merges with the Assault II for serious physical injury. The Assault II doesn't contain an element not contained in Assault II and there was not a sufficient pause in the beating to afford the defendant an opportunity to renounce his criminial intent. State v. Sullivan

Boyd Delivery - Jury Instruction

At issue is whether the following jury instruction properly conveys the idea that the jury may, but need not, use the fact of a large quantity of drugs to find a substantial step toward a delivery with the intent to deliver (ie an attempted delivery, aka a Boyd delivery):

Under Oregon law, possession with intent to deliver constitutes delivery, even where no actual transfer is shown. An attempted transfer occurs when a person intentionally engages in conduct which constitutes a substantial step and includes, but are not limited to, possession of a large amount of a controlled substance, not for personal use, but consistent, instead, with trafficking in controlled substances.

Oddly, the issue before the court is not the first sentence - which seems plainly wrong. Rather:

The sole issue is whether the instruction that was given, which qualified the term "large amount" with the additional terms "not for personal use, but consistent, instead with trafficking in controlled substances," was an accurate statement of the law. We conclude that it was. A reasonable jury hearing the instructions would understand that, in determining whether an attempted transfer occurred, it should consider the quantity of drug involved and other evidence to determine whether that quantity was not consistent with personal use, but instead was consistent with drug trafficking.

State v. Schwab

Right to Counsel - Proper Request

To assert the right to counsel you must request counsel or legal advice. It is not sufficient to ask to speak to a family member or friend who just happens to be an attorney. So the fact that the officer, in this case, stayed in the room and listened to defendant's call to his attorney-father, was not a Constitutional violation. The officer even asked if it was a call for legal advice and the defendant said it wasn't. State v. Burghardt

Reasonable Suspicion - Dissipation

Assuming an officer has reasonable suspicion to stop a car for expired insurance, the reasonableness of that suspicion dissipates as soon as he's informed that the car was recently sold. Which in this case happened prior to the stop. Which, the AG concedes, means everything found during the traffic stop should be suppressed. State v. Moreno-Rosales

Preservation - Plain Error

The defendant in this case had the exact same issue as his separately tried co-defendant, Casarez Mendez, whose reversal was issued a couple weeks ago. Both defendants wanted to introduce reliable hearsay evidence that another person committed the murder. But today's defendant didn't preserve the issue under Due Process or the US Constitution. It turns out that the Oregon Evidence Code was not the right answer in this case. But, to avoid a travesty of justice, the court acts to correct plain error and reverses anyway. State v. Reyes Sanchez

Right to Remain Silent

The right to remain silent continues even if the defendant is no longer in a compelling setting. During the investigation stage of a sex abuse case, defendant hired a lawyer who sent the investigating officers a very clear letter asserting the right to remain silent and directing officers to go through the lawyer. The officers did not speak to defendant directly but instead got the alleged victim, stepdaughter, to come to the police station and mix in police questions with regular e-mail chatting. Because the stepdaughter was an agent of the police, such "pretext communications" were violative of the right to remain silent. This case has an excellent discussion of the both the right to counsel and the right to remain silent. State v. Davis

Sex Abuse - Forcible Compulsion

Forcible compulsion, for the purpose of Sex Abuse, means "to exercise physical strength or power that causes the person to act or to submit to being acted upon against the person's will. Victim resistance is not required." In the totality of the circumstances, a jury could have found such force where 27 year old defendant went into 14 year old defendant's bedroom at night, crawled on top of her, put her hand down his pants while she kept telling him no and pushing him away. The fact that defendant did not exert a great deal of strength is relevant but not a determining factor. State v. Marshall

Theft - Multiple items merge

Theft of various objects charged as separate thefts merges into a single conviction unless there is a sufficient pause between the thefts to afford the defendant an opportunity to renounce his criminal intent. Here, there were four $379.00 cameras stolen at the same time, split into two counts of Theft I. The DA tried to get the most felonies possible - but to no avail. The two counts merge into one. State v. Huffman

False Information

MJOA should have been granted on false information where there was no evidence regarding whether the officer was attempting to issue a citation or serve a warrant. State v. Huffman

Prior Bad Acts

If a reasonable trier of fact could draw a conclusion from the evidence that is unrelated to defendant's character or propensity to do evil then the evidence is admissible. In this case, defendant was a landlord who was accused of forcing a tenant to have sex in lieu of being evicted for non-payment of rent. Defendant argued that the tenant was the sexual aggressor and that he merely acquiesced. The DA presented prior tenants who testified to weird sexual advances on them when they were late with rent payments. The court finds that the prior bad acts evidence demonstrates the method by which defendant used his position to manipulate female tenants into positions where they were vulnerable to his sexual advances. Because this is a possible conclusion a jury could draw, it is not character evidence. This is a bad case for the defense since it's hard to imagine that one couldn't come up with a possible conclusion unrelated to character for even the most blatant character evidence. Ugh. State v. Momeni

Merger - Theft

Theft I for stealing property merges with Theft by Receiving for selling the same stolen property. Per Curiam. State v. Bergman