Oregon Appellate Ct. - Sept. 17, 2014

Latest revision as of 15:44, September 22, 2014

Prior Bad Acts - Old Assault By Complainant Against Defendant Relevant to Reasonableness of Self-Defense

Evidence of complainant’s ten-year old assault of defendant was admissible under OEC 404(1) where defendant’s theory is self-defense. The assault was “relevant to the reasonableness of defendant’s own belief that complainant was going to assault her again, when the 'mutual history' shared by the defendant and complainant colored their perceptions of [the current] incident.” State v. Scott, 265 Or App ___ (2014).

Search Incident to Arrest - Full Search of Passenger Compartment Incident to a DUII Arrest is Permissible

Overruling State v. Brody, which precluded a full search incident to arrest of the passenger compartment of a vehicle for DUII arrests, a search incident to arrest for the purpose of discovering evidence of DUII now hinges on whether “the space searched was in the immediate control of the arrestee before the arrest, and on whether that space (and the containers therein) reasonably could conceal evidence of the crime of arrest.” Here, where defendant was arrested for DUII, an officer could search the center console of defendant’s car as a search incident to arrest because the defendant appeared intoxicated and admitted to taking Percocet several hours previous and the console was the type of closed container likely to contain evidence of alcohol or drugs. State v. Washington, 265 Or App ___ (2014).

Merger - Offense Subcategory Allegations Neither Preclude Nor Create Merger

Identical offense subcategory enhancement allegations that serve as sentence enhancement factors for two charged offenses do not lead to merger where those offenses “would not merge absent those allegations.” Here, defendant argued that his Burglary 2 and Theft 1 charges should merge because both included the same offense subcategory enhancement fact in the indictment, that “the value of the property stolen or destroyed was $1,000 or more.” Because the court found that subcategory allegations do not preclude merger in State v. Wright neither can they lead to merger. State v. Baker, 265 Or App ___ (2014).

Possession of a Burglary Tool – State Must Prove Intent to Use By More than Mere Possession

To survive a MJOA on Possession of a Burglary Tool (ORS 164.235), the state must prove that the defendant intended to use the tool in an unlawful manner (a requisite element of the crime). The defendant’s knowledge that the tool may be used in an unlawful manner is insufficient. Here, the defendant was found to possess a tool that is used to break into car windows, with no other evidence presented that indicated he was actually going to use the tool. The court rejects the state’s attempt to collapse the intent element with the possession element.

J. Sercombe dissents on the basis that the factfinder should be able to consider the nature of the device in determining whether defendant intended to use that device to commit theft. Because the nature of the tool was specific to breaking into cars, very little evidence was necessary to create a question for the jury. State v. Cook, 65 Or App ___ (2014).

Asking For, Taking and Checking a Person's ID is Not a Sufficient Show of Authority to Constitute a Stop

Reconsidered in light of State v Backstrand, the court reverses its original ruling and finds that defendant was not stopped when "the officer approached defendant and his sister in order to give them information, then asked for and very briefly retained their identifications without giving them any indication that their movements were being significantly restricted." Because there was no show of coercive authority, there was no stop. Defendant's friend had asked the officer to tell defendant that he had been arrested. The officer conveyed that information and also asked for their IDs, which led to the discovery that defendant was an unregistered sex offender.State v Wright, 65 Or App ___ (2014).