Oregon Appellate Ct. - Dec. 17, 2014

Latest revision as of 16:50, December 24, 2014

SPO – Imminent Threat Doesn’t Have To Be Immediate, Just “Ready To Take Place”

For the purposes of a stalking protective order (“SPO”), a threat of serious physical harm, communicated telephonically, is imminent not if the threatened harm would occur immediately, but when in context, the threatened harm is “ready to take place,” or “near at hand.” Here, respondent’s threat to “fuck up” petitioner was imminent where there had been prior instances of domestic abuse, respondent had bragged to petitioner that he had killed people while in the army, demonstrated a willingness to break the law via several violations of a no-contact order, and that he knew “skinheads” who would harm petitioner at his behest. Given these circumstances, respondent’s threat of physical injury was imminent and justified an SPO.

S.L.L. v. MacDonald, 267 Or App ___ (2014).

1st Degree Disorderly Conduct – Commenting on an Online Post is Not Circulating a Report

Commenting on an online post without knowing that the conversation would move beyond the post is not sufficient to adduce that someone made a report to cause “public inconvenience, annoyance or alarm, or knowingly create a risk thereof.” Here, defendant posted on MySpace about shooting up a high school. Because defendant did not initiate the post and no evidence was presented that defendant ever intended the conversation to go beyond the post, the state did not prove the elements of knowingly create alarm, inconvenience, annoyance or risk thereof.

State v. Nelson, 267 OR App ___ (2014).

Civil Commitment – Health Threat Must Implicate a Person’s Ability to Survive

A health risk that does not implicate a person’s ability to survive in the near term is not sufficient to civilly commit a person. Here, appellant was not a danger to herself. Although she had lost weight and there was fecal matter on the walls and surfaces of her apartment, this was not sufficient to show that appellant’s survival was at risk. Thus, appellant should not have been civilly committed.

State v. S.R., 267 Or App ___ (2014).

Sentencing – Consecutive Sentences Where Damage Shows Willingness to Commit Another Offense

Consecutive sentences may be imposed where the damage alleged as a basis of one offense is different than the actions to complete the other offense. Here, defendant was convicted and sentenced to serve consecutive sentences on Burglary 2 and Criminal Mischief. Defendant had cut a hole in a fence, cut holes in a shop building, peeled back the door of the shop building, and cut the leads off of certain welding machines. This “indicated a willingness to commit more than the offense of burglary.” Because damage was done that was not necessary for the commission of the burglary, the trial court could have inferred willingness to commit a separate offense and could thus impose consecutive sentences.

State v. Traylor, 267 Or App ___ (2014).

Vouching – No Duty for Courts Sua Sponte to Preclude Testimony on Rates of Truthful Reporting

No duty for the court to sua sponte preclude testimony concerning percentage of children who tell the truth about sexual abuse. Here, witness testified that 96% to 98% of children who made disclosure about sexual abuse were telling the truth. Even though such testimony might be impermissible, because the witness did not explicitly state that he believed the child-complainant was telling the truth, the court did not have a duty to preclude the testimony sua sponte.

State v. Harrison, 267 Or App ___ (2014).

Per Curiam: Violating A Stalking Protective Order – Prejudice to Admit Complainant’s SPO Petition

Prejudice to admit complainant’s SPO petition where defendant stipulated to the presence of an SPO.

State v. Murray, 267 Or App ___ (2014).