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Oregon Court of Appeals 07-28-10

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by: Abassos • July 27, 2010 • no comments

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

  • Accomplice Liability - Specific Intent Required
  • Merger - Assault
  • Departure Factors - Pending Charges
  • Vehicle Impound - Deterrence is not a Justification
  • Preservation - Extension of a Stop
  • Search and Seizure - Extension of a Stop
  • Juvenile Dependency - Drug Use
  • M11 - Juvenile Crime/Adult Trial
  • Stalking Order Hearing - No Right to a Jury Trial
  • Juvenile Dependency - RCWA
  • Merger - Appeal after Guilty Plea


Contents

Accomplice Liability - Specific Intent Required

To be convicted as an accomplice, a defendant must have intended to aid or abet in the commission of the specific offense charged. In this aggravated murder case, the court strikes down Oregon's long-standing "natural and probable consequences" jury instruction (UCJI 1052). This instruction allowed the jury to find a defendant liable for any additional offenses committed by his accomplice, where those offenses could have been foreseen. The Court holds that the instruction is not supported by the accomplice liability statute, ORS 161.155, which requires specific intent to aid or abet in the commission of an offense. State v. Lopez-Minjarez

Merger - Assault

Stabbing someone seven times in a row is one assault unless the State proves a sufficient pause between stabbings to afford the defendant an opportunity to renounce intent. Where the jury finds the defendant guilty of seven stabbings (unseparated by sufficient pauses), the seven guilty findings merge into a single conviction. State v. Watkins

Departure Factors - Pending Charges

Where the state alleged as a departure factor that defendant had pending charges at the time of the crime, it was insufficient to prove that defendant was on probation at the time of the crime. Probation is not a pending charge. More importantly, the court today holds that the State may only vary from an upward departure notice in the same way as it may vary from an indictment. That is, there may not be a variance between allegation and proof if it causes prejudice to the defense. Remanded for resentencing. State v. Boitz

Vehicle Impound - Deterrence is not a justification

The community caretaking doctrine may not be used to impound a car for deterrent reasons. See Miranda v. City of Cornelius, 429 F3d 858 (9th Cir 2005). Defendant drove two or three blocks to his own driveway after police signaled him to pull over for a traffic violation. The state argued that officers could impound the car to deter defendant from driving again without a license. The court today rejects the state's argument: "seizures by the police aimed at protecting the public by preventing illegal behavior" fall directly under the Fourth Amendment's warrant requirement. State v. Gonzales

Preservation - Extension of a Stop

Arguing that the scope of a traffic stop was unlawfully extended is not enough to preserve the argument that the duration of the stop was unlawfully extended. Here, the officers immediately extended a normal traffic stop into a search for drugs. Unfortunately, the proper argument was that the duration, not the scope, was unlawfully extended. The court also rejects defendant's argument that her statements were involuntary because the officer brought up a pending domestic violence case where she was the victim and told her how important it was to be truthful. The evidence at the hearing showed only that "the police conduct at issue involved a mere adjuration to tell the truth along with a truthful-not a fraudulent-comment regarding the possible consequences of lying." Affirmed. State v. Tanner

Extension of a Stop

An officer may ask questions unrelated to a traffic stop so long as the stop's duration isn't extended. Here, while the car's owner was getting his registration, the officer noticed a cigarette case and asked the owner to hand it to him. This led the owner to dump the case, drop a prescription pill and blurt out that he got the pill from a friend. Reasonable suspicion was created and consent searches followed.

Although the results of the questioning led to a police-citizen encounter that was longer than it would have been without the questioning, that fact is not relevant. The relevant fact is that the inquiry that transformed the encounter from a routine traffic stop into a more extended criminal investigation occurred during the time that Bennett was lawfully and expeditiously conducting the traffic stop and, unlike the inquiries in Klein, did not result in any extension of that stop.

State v. Gomes

Juvenile Dependency - Drug Use

A substance abuse problem alone does not support a jurisdictional finding in a dependency case. The "reasonable likelihood of harm" standard for a court to find jurisdiction requires evidence that the drug use is a condition or circumstance that endangers the welfare of the parent's children. Department of Human Services v. C.Z

M11 - juvenile crime/adult trial

Bad news on the juvenile measure 11 front. Technically, today's opinion offers "no opinion" on the issue of whether a defendant who is under 15 when the crime occurred but an adult when charges are filed should be given the mandatory minimum M11 time. There's no opinion because the issue wasn't preserved. However, the court says that "at first blush, there are good arguments" in favor of the state's interpretation. The defendant's interpretation is "not completely implausible." Regardless, continue to preserve this objection if it comes up. It's still a live issue. State v. Godines

Stalking Order Hearing - No Right to a Jury Trial

There is no right to a jury trial in a stalking protective order hearing, even where damages are requested. The stalking order statutes were not around at the time of the Constitution's writing and they are not "of a like nature" to anything that was around at the time. Foster v. Miramontes

Juvenile Dependency - RCWA

In determining whether the child in a dependency case is a "refugee child" (triggering the application of the Refugee Child Welfare Act), it is irrelevant that the parents have become citizens. Moreover, it is also of no consequence that the parents are now willing and able to return to the prior country if they were previously unwilling or unable to return. The point of the statute is to identify children who fled from their country for a well-founded fear of persecution and treat them with a heightened level of cultural sensitivity. DHS v. MJ

Merger - Appeal after Guilty Plea

Merger is an issue that can be appealed even when the defendant pled guilty to all charges and never previously raised the issue. State v. Sauceda