Oregon Court of Appeals 10-06-10

by: Abassos • October 5, 2010 • no comments

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

• Hearsay - Effect on the Listener
• Impeachment for Bias - Pending Criminal Cases and Warrants
• Compelling Prostitution - It's for Pimps, Not for Johns
• Constructive Possession

Hearsay - Effect on the Listener

Defendant's testimony in a theft case that she had been given permission to take the item was not hearsay and should not have been excluded. The statement was not offered for its truth (that defendant was entitled to take the item). It was offered to show that defendant reasonably believed that she was entitled to take the item. Moreover, exclusion was not harmless error because the statement was the foundation of defendant's theory and the jury reasonably could have believed the theory, regardless of the existence of contrary evidence. Reversed. State v. Hren

Impeachment for Bias - Pending Criminal Cases and Warrants

Defendant was not entitled to question the store clerk in a Robbery/ID Theft case about the clerk's pending misdemeanor failure to register because he was able to impeach for bias with a DUII diversion and a DWS warrant. It was not error for the judge to exclude the evidence under OEC 403 because the DWS and DUII allowed defendant to make a showing of bias. That initial showing is the crucial question in the case because "the court's discretion to limit impeachment evidence that goes to interest or bias applies only to evidence that amplifies, develops, or elaborates an 'initial showing.'" The unpreserved additional argument that might have made a difference is that the bias involved in the failure to register case is qualitatively different than that of the DUII and DWS because the State has absolute power to grant leniency in a pending case. State v. Calderon

Compelling Prostitution - It's for Pimps, Not for Johns

Defendant was convicted of Statutory Rape and Compelling Prostitution for convincing a 15 year old to have sex with him and giving her money in exchange. The court finds that Compelling Prostitution only applies to "third party promoters", not to "patrons" of prostitution. The fact that the acts simultaneously involved Rape III and Sex Abuse II, doesn't make the defendant into a 3rd party promoter. State v. Vargas-Torres

Constructive Possession

The AG concedes the failure of evidence in this Possession/Delivery case where defendant was driving someone else's car and drugs were found in the console. The DA failed to offer any evidence that the defendant had the right to exercise control over the drugs. The state relies on Casey for it's concession, a case in which defendant's guest laid a gun on defendant's counter while they stepped outside and defendant was wrongfully convicted of felon in possession. Reversed. State v. Van Nostern