Oregon Court of Appeals 08-18-10

by: Abassos • August 17, 2010 • no comments

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

• Dismissal with Prejudice - Use as a Sanction
• Merger - Stalking Protective Order
• Stalking - MJOA
• Johns Evidence - Uncharged Misconduct
• Dependency - Finding of Jurisdiction

Dismissal with Prejudice - As a Sanction

Where the State is unable to proceed on a case, a judge has no authority to dismiss a different pending case as a sanction. The dismissed case had not been called for trial. Nor had any other factual predicate for dismissal been met. State v. Romero (the dismissed case). State v. Romero (the case that wasn't ready for trial)

Merger - Stalking Protective Order

Multiple counts of Violating a Stalking Order merge when the convictions are based on different theories of guilt from a single telephone call to a single person. State v. Sierzega

Stalking - MJOA

In order for "purely communicative" speech or writing to be punishable as "contacts" under the stalking statute, they must be unequivocal threats of imminent personal violence. Without this "threat requirement" (State v. Rangel), the statute would unconstitutionally limit expression. Here, there were six contacts, all of which occurred at the courthouse where both parties worked: a letter, a fax, two phone calls, and two incidents of in-person contact. Only one of these contacts was more than "purely communicative" (an in-person incident where the romantically-obsessed defendant sought the victim out on a pretext). And none of the contacts, though "creepy," met the threat requirement. Thus there were not repeated unlawful contacts on which the defendant could be convicted. Reversed. State v. Sierzega

Johns evidence - Uncharged Misconduct

Uncharged instances of sex abuse were admissible to show that the victim did not make a mistake in identifying the defendant. The fact that she had previously been abused by the defendant and witnessed her cousin being abused by the same person makes it less likely that she would have been identifying a different person named "Doug" when she first made the accusation. This case does not change the general rule that prior bad acts must be relevant to a fact the defendant puts at issue. So, for example, if the defendant here had only asserted a defense that the abuse didn't happen, the evidence would not have come in. State v. Pitt

Dependency- Finding of Juridiction

Evidence that now-separated parents had a physically abusive, on-again, off-again relationship meets the jurisdictional standard of whether the children face a current risk of harm. The reasonable possibility that the parents would reunite (and that there would be further abuse) is a current risk of harm. State v. S.T.S.