Oregon Court of Appeals 10-27-10
by: Abassos • October 26, 2010 • no comments
Read the full article for details about the following new cases:
- Restitution - Charged and Uncharged Conduct
- Search and Seizure - Emergency Aid Exception
- Upward Departure - Pleading
- Sex Cases - Defendant entitled to Jury Instruction on other Crimes
- Telephonic Harassment - Intent to Harass/Annoy
- Criminal Trespass - Lawfully directed
- Harmless Error Analysis
Contents |
Restitution
When defendant entered a plea that included full restitution for embezzlement from her employer, the context made clear that she was agreeing to restitution for both charged and uncharged conduct during the overall time covered by the indictment, including the gap periods between charges. State v. Carson
Emergency Aid
A 911 call reporting "yelling", "door slamming" and a "history of guns" did not justify a warrantless entry to defendant's trailer to check on him. Particularly since defendant's wife met the deputies at the door to the main cabin and explained to them that everything was fine, that her child was at a birthday party and that her husband was at the trailer 15 feet away. The deputies went to check out the mobile home and when they heard loud music, they entered to make sure the occupants were safe. The fact that they saw a tray of wilted marijuana plants on the porch and smelled a strong odor of marijuana from inside also did not justify an entry to protect someone's life. Reversed. State v. Mazzola
Upward Departure - Pleading
The Oregon Constitution does not require the state to plead enhancement facts in an indictment or present them to a grand jury. The court also rejects without discussion the argument that the DA must at least file an upward departure notice with the court in order to provide the court jurisdiction to hear the matter. State v. Sanchez
Defendant entitled to jury instruction
Where defendant presented evidence in his sex abuse I/rape II trial that the victim was over the age of 14, he was entitled to a jury instruction on sex abuse III and rape III, applying to victims under 18. The fact that the state's evidence of age was a birth certificate and the testimony of victim's mom and defendant's evidence was an e-mail from the victim saying she was 15 is irrelevant. The job of the jury is to weigh the evidence and resolve factual disputes. State v. Berry
Telephonic Harassment
The element of intent to harass or annoy may be proven through expressive conduct. State v. Koenig
Criminal Trespass - "Lawfully directed"
A notice of exclusion from a public government building is not lawful if it doesn't provide for sufficient Due Process to allow a person timely review. Here, defendant was excluded from the Public Services Building in Washington County but the only process for appeal was a "writ of review", a mechanism which, by law, is inapplicable to this situation. Thus, the exclusion was not lawful and could not form the basis for a criminal trespass. State v. Koenig
