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2012-12-21T00:22:33Z

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''Read the full article for details about the following new cases:''
* Confession vs Admission - Corroboration
* Merger: - Assault I and Unlawful Use of a Weapon
* Search Warrant - Sufficiency of Affidavit
* Stop - Extension/Unavoidable Lull
* Waiver of Right to Jury Trial - Intelligently
* Vouching - Diagnosis of Sex Abuse
* Upward Departure - Notice to the Court not Required

===Confession vs Admission - Corroboration===

A statement is a confession if it is made for the purpose of acknowledging criminal guilt. This is true even if the statement is also made for other purposes. The distinction between confession and admission is important because a confession must be corroborated. ORS 136.425(1). Here, defendant told a colleague, a mens group and his parole officer that he had molested his two daughters on multiple occasions. In the latter two statements he was quite specific about it. A social worker also testified that the daughters were in foster care and exhibiting sexually inappropriate behavior. Each of the statements were confessions because, though there were multiple reasons for why the statements were made, defendant was owning up to crimes he had committed. The confessions were not corroborated by the behavior of the daughters because such evidence amounts to "little more than speculation". The confessions do not corroborate ''each'' ''other'' because the point of the rule is to require more than the defendant's words. If you have this issue, read this case. Reversed.
[http://www.publications.ojd.state.or.us/A137379.htm ''State v. Kelley'']

===Merger - Assault I and Unlawful Use of a Weapon===

It is not so obvious that Assault I and UUW merge that the appellate court is willing to find plain error. The state argued that UUW has an element that Assault I doesn't: possession of the weapon. Assault I, the argument goes, can be committed without possessing a weapon, for example by bashing someone's head against a concrete sidewalk. Affirmed.
[http://www.publications.ojd.state.or.us/A139587.htm ''State v. Cufaude'']

===Search Warrant - Sufficiency of Affidavit===

Aerial observations made as part of a marijuana eradication program were sufficient to establish probable cause that marijuana would be found on the property. Subjective probable cause existed because the Detective stated he believed the plants ''were'' marijuana (as opposed to being consistent with marijuana). Objective probable cause existed because the officer had been identifying marijuana grows by aerial surveillance for over 20 years and 225 grow operations with a 3 percent error rate. This is potentially a bad case but most cases can be distinguished from this one by the lesser experience of the officer and by the lack of a stated error rate. (Totally irrelevant but odd fact: the marijuana detective's name is Goodpasture.) Affirmed.
[http://www.publications.ojd.state.or.us/A139654.htm ''State v. Fronterhouse'']

===Stop - Extension - Unavoidable Lull===

After stopping defendant, who was on his bicycle, the officer developed reasonable suspicion to investigate a DUII and also reasonable suspicion to believe that defendant was the person he had seen on a wanted poster that morning. While he was waiting for another officer to bring the wanted poster and help him with the DUII, the officer asked for and received consent to search. Thus, the request for consent occurred during an unavoidable lull and, as a result, did not extend the stop. Affirmed.
[http://www.publications.ojd.state.or.us/A141466.htm ''State v. Jones'']

===Waiver of Right to Jury Trial - "Intelligently"===

There is no requirement that defendant must be advised that by waiving his right to a jury trial, he also waives his right to move for a new trial. A defendant need be told only of the direct consequences of waiver, not of all the peripheral rights that may be lost. Affirmed.
[http://www.publications.ojd.state.or.us/A139531.htm ''State v. Stewart'']

===Vouching - Diagnosis of Sex Abuse===

A physician's diagnosis of sex abuse is inadmissible in the absence of physical evidence. It is a comment on the credibility of the victim. See [http://www.publications.ojd.state.or.us/A139959.htm Bainbridge], relying on [http://www.publications.ojd.state.or.us/S056477.htm Lupoli]. Reversed.
[http://www.publications.ojd.state.or.us/A139645.htm ''State v. Cordova-Contreras'']

===Upward Departure - Notice to the Court not Required===

Notice of an upward departure need not be filed with the court. See [http://www.publications.ojd.state.or.us/A138844.htm Sanchez] and [http://www.publications.ojd.state.or.us/A138017a.htm Evans].
[http://www.publications.ojd.state.or.us/A139806.htm ''State v. Guyette'']

{{wl-publish: 2010-11-30 21:00:00 -0800 | abassos }}

Blog:Case Reviews/Oregon Court of Appeals 12-01-10 - Revision history

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