A Few Thoughts About Today's Other Significant Opinions
by: Ryan • June 14, 2011 • no comments
If you have an ID Theft case based on a theory of "possession with intent to deceive/defraud," you'll really want to look at St v. Martin. Great work by Bronson James (appeal) and Erin Kirkwood (trial). It delves into the distinction between inference and speculation, and it finds that possession of another person's ID, even including an explanation for that possession that might merit some skepticism, does "not rise to the level of an inference beyond a reasonable doubt that defendant intended to use the card to deceive or defraud another at the time that he possessed it."
Bear Wilner-Nugent argued an as-applied vagueness challenge to the "change of residence" element of Failure to Register, but, alas, the facts weren't on his side. Since the defendant spent literally all his non-working time at his girlfriend's house, even got mail there, there wasn't the necessary ambiguity over whether he'd moved out of his old apartment, even though he still paid rent there. Nevertheless, the court implicitly recognizes that there might be a different set of facts that might support this challenge. And if you think you might have better facts, particularly with a homeless client, see Thad Betz's previous post on this topic here .
What's nice about the Reigard opinion is that it's one of the first (maybe not technically the first but close) to actually evaluate an as-applied vagueness challenge on its merits. More likely, you'll see the court hold that a statute isn't facially vague and then note that the defendant did not make an as-applied challenge.
Another very important decision today was St v. Wilson. Nice work by Garrett Richardson. In the opinion, the court clarifies that the qualities of the defendant and victim (not just the facts of the case) could justify a Buck/Rodriguez challenge to a M11 sentence. (My favorite part of the opinion is the use of the word "disambiguation.") If you've got a client with mental impairment, that's something the judge can take into consideration in deciding if the sentence is unconstitutionally harsh. If you've got a juvenile client facing a M11 sentence, see here.
All in all, a great day for the Oregon Court of Appeals.
Ryan Scott is going to be speaking tomorrow at the Oregon Criminal Defense Lawyers Association Annual Conference in Bend. If you're there, feel free to say Hi.
