Oregon Appellate Court - October 30, 2013

Revision as of 12:24, October 31, 2013

Miranda - Compelling Circumstances - 12 year Old Defendant

A 12 year old is in compelling circumstances, for Miranda purposes, where he is escorted by the principal to an administrative room and repeatedly asked pointed questions that presume the youth's guilt. That is: "taking into account the length of the interview, the location, youth's age, maturity level, the repetitive and escalating nature of the questions throughout the interview, and the increasingly coercive tactics used by the detectives, we conclude that a reasonable twelve-year-old of similar age, knowledge and experience, placed in youth's situation, would have felt required to stay and answer all of the detective's questions." State v DP, 259 Or App ___ (2013)

Stalking - Communicative Contact Must Be an Unequivocal Threat

Yelling at a neighbor and saying "Why don't you come over and kick my ass then" does not amount to the sort of unequivocal threat necessary for communicative speech in a Stalking prosecution. See State v Rangel. State v Jackson, 259 Or App ___ (2013)

Constitutional Speedy Trial - Misdemeanor - 16 Month Delay Attributable to the State

A 16 month delay attributable to the state in a misdemeanor case is not reasonable. Here, the state did not argue that 16 months was reasonable. It argued that 4 of the 16 months were attributable to the defendant because he switched attorneys. But since the trial court found that delay to be attributable to the court's docket, the state does not prevail. State v Mercier, 259 Or App ___ (2013).

Merger - Counts with Alternative Theories Merge into One Conviction

Where guilt is found on multiple counts charged as alternative theories of guilt, the multiple counts merge into one conviction. Because the state has no interest in receiving multiple convictions where only one is allowed, the court reverses even in the absence of an objection. Here, the state argued, in the alternative, that a sexual act was either non-consensual (and therefore sex abuse II) or forcible (and therefore sodomy II). Reversed for merger of convictions. State v Steltz

Crimes Merge Where They Have the Same Elements

The elements of felon in possession of a firearm contain the elements of unlawful use of a weapon with a firearm and therefore should be merged under ORS 161.067. No proof is required of the latter crime that isn’t already required of the former. Here, the trial court erred in failing to merge the convictions and consequently erred in sentencing consecutive sentences. State v. Flores, 259 Or App ___ (Oct. 30, 2013)

“Multiple Victims” Aggravating Factor for Departure Sentence Defined as Persons Directly Injured by the Offense

The term "victim" in the upward departure factor for "multiple victims" (OAR 213-008-0002(1)(b)(G)), means “a person who is directly, immediately, and exclusively injured by the commission of the crime - not persons injured only by subsequent, additional criminal conduct.” Here, the defendant was convicted of burglary and multiple thefts for entering a vacation rental and stealing items belonging to seven individuals. Because the appropriations occurred after the commission of the burglary, the theft victims were not immediately and exclusively injured by the burglary and therefore shouldn’t be included as an aggravated factor to the robbery. In reaching this new definition, the court relies on the plain meaning of the word, legislative history, and similar Washington state interpretations of sentencing guidelines. State v. Teixeira, 259 Or App ___ (Oct. 30, 2013).