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Oregon Court of Appeals 09-01-10

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by: Abassos • August 31, 2010 • no comments

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

  • Restitution - Definition of Victim
  • Lab Reports - Confrontation Clause Objection Required
  • Probation Revocation - Failure to Pay Restitution
  • Stop - Extension
  • Dependendency - ICWA Jurisdictional Findings


Restitution - Definition of Victim

The estate of a victim is not a person entitled to restitution. Thus where, as here, the victim dies before the restitution hearing, the court is not allowed to impose restitution. An estate is neither a person nor a victim because ORS 137.106 limits the definition of person to human beings, corporations, unincorporated associations and government entities.

Per Ryan, this case might have a bigger impact than restitution:

The section I like most is as follows: "As we have noted, on its face, the statute defines the term "person" as one of four entities. An estate of a decedent does not qualify as any of those four. Under Oregon law, an estate consists of "the real and personal property of a decedent," ORS 111.005(15), and as a "decedent's property subject to administration in Oregon." ORS 114.505(3). As the state correctly concedes, the property of a decedent is not a human being; nor is it a public or private corporation, an unincorporated association, or a government entity." How might this impact ID Theft? In the ongoing debate of whether ID Theft has a named victim, the argument the state likes the most is that "sometimes" there is a victim, depending on the facts of the case. (I think this is wrong, but in the right case, it's a helpful position for the state to take.) So, if one of the facts is that the person whose identity was taken is "imaginary," then that person isn't a victim. If many of the stolen identities were of imaginary people, the counts often would merge. The grey area has been whether the person whose identity is stolen is "dead," which is listed, just like "imaginary," as a possibility. I don't think a dead person can be a victim, if dead before the crime began. Some people have taken issue with me on this. They say, "then it's the person's estate." I think today's opinion would require the courts to hold otherwise. "An estate of a decedent" is not a victim. Keep in mind that the burden is on the state to prove the people who have their identity stolen are both real and living. Often, the prosecution won't do that, especially in a case involving possession of dozens of fake IDs. At a minimum, if they aren't shown to be both real and living, you have a great shot at merging all of those counts into a single conviction.

State v. Patton

Contents

Lab Reports - Birchfield

It is not plain error to admit a lab report without the criminalist's testimony where the defense attorney does not object at all. "A reasonable inference can be made that defendant chose not to assert that the admission of the lab report violated his constitutional confrontation rights." State v. McNeely

Probation Revocation - Failure to Pay Restitution

A court may not revoke probation for failure to pay restitution unless the court determines from the totality of the circumstances that the purposes of probation are not being served. ORS 137.540(9). Moreover, the court cannot simply recite the words "totality of the circumstances . . . purposes of probation are not being served" as if it were a magical incantation. The court must set forth the basis for that belief, the allegations that support it other than failure to pay, and the purposes of probation that the court has in mind. Reversed and remanded. State v. Kacin

Stop - Extension

Where defendant was being investigated for disorderly conduct stemming from an altercation with a homeowner ordering defendant off his property, it did not extend the stop when the officer asked to search defendant for weapons. Searching for weapons was a natural part of the investigation. State v. Gant

Dependendency - ICWA - Jurisdictional Findings

We begin with the fifth assignment of error because it frames our resolution of the other issues. We agree that the juvenile court erred by not applying ICWA at the jurisdictional hearing-but ordinarily, given the agreement of father's trial counsel that the court did not need to do so, we would conclude that the error was invited and thus not a basis for reversal. State ex rel Juv. Dept. v. S. P., 346 Or 592, 606, 215 P3d 847 (2009). Father, however, contends that his counsel was inadequate in that regard and that he should not be penalized for counsel's misstatement of the law; in his view, his counsel's statement was not a tactical decision, and no advantage could have accrued to father from it. We agree.

State v. N.L.