Predictions are Hard, Especially about the Future
by: Ryan • February 13, 2011 • no comments
Anyone can read the latest appellate opinions when they come out. I ratchet the obsession to 11 by trying to stay on top of potentially significant opinions that haven't come out yet but look promising. The following is for those who might be similarly inclined to speculate.
(1) Sexual Abuse in the 2nd Degree
Many of you know of my extreme distaste for the Stamper opinion, which has resulted in the expansion of Sexual Abuse II well beyond what I think the legislature intended. Two cases have been submitted to the Oregon Court of Appeals, either of which has the potential for reversing Stamper. One has been under advisement for nearly 10 months, so an opinion could come out any day.
(2) Aggregation of Thefts
I think of the 3-5 week period after oral argument at the COA as the event horizon surrounding black holes. Until you get past that point, you can't be sure the case won't be affirmed without opinion. After that, you'll probably get an opinion, but there's still no guarantee: it could still fall back into the gravity well.
One case that appears to have gotten past the even horizon is a case involving aggregation of separate thefts into bigger thefts, a situation that often arises in embezzlement or criminal mistreatment cases. For those who want to know the argument, check out this earlier post.
(3) Rape in the First Degree
Here is one of the statutory definitions of Rape in the First Degree:
163.375 Rape in the first degree. (1) A person who has sexual intercourse with another person commits the crime of rape in the first degree if: (a) The victim is subjected to forcible compulsion by the person;
Notice that the offense does not include a mental state. The state has argued, in at least one case that I'm aware of, that the victim needs to feel forcibly compelled, but the defendant does not have to be aware she feels forcibly compelled. When might that arise? In a relationship with a history of violence, where the husband, perhaps, will feel that the couple is having make-up sex, but the wife is still afraid, as a result of an earlier assault. Obviously, a horrible and tragic situation, and one that we can expect an opinion on soon. (Oral argument was ten months ago.)
(4) Merger of Felon in Possession of a Firearm
I have long been a proponent of the argument that multiple counts of Felon in Possession, arising from the simultaneous possession of multiple firearms, should merge into a single conviction. This issue won at the trial level, and the state is appealing. The opinion may not be out for another year at least, but I expect we will get an opinion.
(5) Upward Departures
For those whose clients are threatened with an upward departure based on being "on supervision," we are still waiting for an opinion from the Oregon Supreme Court, which accepted review quite some time ago.
If you know of any other issues that we can expect to be resolved by the Court of Appeals or Supreme Court soon, please feel free to post a description in the comments section below.
