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Oregon Court of Appeals 06-02-10

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by: Abassos • June 1, 2010 • no comments

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

  • Merger - One crime, Multiple theories = One conviction
  • Identity Theft - Intent to Defraud is Broad
  • Confrontation - Testimonial Statement
  • Civil Commitment - Basic Needs



Merger - One crime, multiple theories = one conviction===

Burglary with both the intent to commit rape and with the intent to commit sex abuse add up to one burglary with two theories. That means they merge for conviction. The two counts become one conviction. They don't just merge for sentencing. Reversed. State v. Lepierre

Identity Theft - Intent to Defraud is broad

Defendant's use of a fake social security number on a Federal I-9 form in order to obtain employment was sufficient evidence of intent to defraud. Intent to defraud includes the intent to cause injury to another's rights or interests. According to the court, we know the relevant intent is broad because the legislature put in exceptions, that would otherwise apply, for persons misrepresenting their age to buy alcohol or get into an age restricted place. Here, a jury could have found that defendant intended to defraud either the federal government or the employer. The defendant intended to injure the government's interest in enforcing the laws. And he intended to acquire from the employer a job that he was not legally allowed to have. State v. Alvarez-Amador

Confrontation - Testimonial Statement

A certified statement from social security that particular social security numbers do not belong to defendant is a testimonial statement. It was prepared for trial at the request of a police officer. It is not an official record of the sort that falls within the limited historical exception recognized in Melendez-Diaz: "Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because-having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial-they are not testimonial. Whether or not they qualify as business or official records, the analysts' statements here-prepared specifically for use at petitioner's trial-were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment." State v. Alvarez-Amador

Civil Commitment - Basic Needs

It is not enough for the state to show that AMIP, as a result of her bipolar disorder, had nowhere to stay and was unlikely to find a place to stay. The state must show that AMIP is unlikely to survive in the near future. For example, as a result of malnourishment or medical issues. This is also a good example of the insufficiency of the common argument that AMIP will put him or herself in harms way without a commitment. "Harms way" is another way of saying that all we can do is speculate about what might happen because we don't have clear and convincing evidence about what will happen. In this case: "The evidence at the hearing showed that appellant had recently engaged in a variety of erratic behaviors, including dancing on a dark road partially unclothed, entering a stranger's home at night without permission, destroying her own property, and exhibiting rambling nonsensical speech, severe confusion, and memory loss. In the week before her hospitalization, appellant had also been in a serious car accident, but she had no memory of the accident at the time of the hearing." None of it shows that AMIP's survival was seriously at risk. Reversed. State v B.C.