Oregon Appellate Ct - Aug. 19, 2015

Revision as of 13:12, August 22, 2015

Choice of Evils - Imminence - A Realistic Threat of Serious Harm is Not Imminent Enough If The Timing Is Vague

A specific, credible threat of serious injury that could be carried out at any time is not sufficiently imminent to assert the defense of choice of evils. The threat must be "immediate" in the sense of being "ready to take place" or "near at hand". Here, defendant was a prison inmate who had been told that his life was in serious danger from a skinhead gang who thought he was a snitch. Thus, he armed himself with a sharpened toothbrush, a prohibited weapon. But because there was no timing associated with the threat and no way to tell that violence might occur that day, much less was "about to happen", the threat was insufficiently imminent, even if absolutely true, to suffice for either choice of evils or self-defense. State v McPhail, 273 Or App 42 (2015).

Search and Seizure - Exploitation – Warrant Discovery Does Not Automatically Cure Police Misconduct under Article 1, section 9.

Extending the premise of State v. Bailey (a Fourth Amendment case) to Article 1, Section 9 of the Oregon Constitution, courts must now apply the five factor exploitation analysis under State v. Unger to determine whether the discovery and execution of an outstanding warrant attenuates the taint of prior unlawful police conduct. The court disavows State v. Snyder, 72 Or App 359, rev den, 299 Or 251 (1985) (holding that the discovery of a warrant purged the unlawful police conduct under Article 1, section 9). Here, the defendant was unlawfully stopped when the officer approached the defendant, inquired into the defendant’s identification, and then told the defendant to “hang on a second” when the defendant wanted to leave to go to the bathroom. The officer admitted that there was no reasonable suspicion of criminal activity. The officer then ran defendant’s name for a record’s check and discovered an outstanding warrant. Because the state failed to prove attenuation from the unlawful stop in accordance with the five factors, the discovery of the warrant did not cure the police misconduct. The five Unger factors are: (1) the temporal proximity between the unlawful police conduct and the discovery of the challenged evidence; (2) the presence of mitigating circumstances; (3) the presence of intervening circumstances; (4) the purpose and flagrancy of the unlawful police conduct; and (5) the nature, extent and severity of the constitutional violation.State v. Benning, 273 Or App 207 (2015)

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A crime by omission requires the capacity to preform the relevant physical act

Where criminal liability is premised on a failure to act, the defendant must fail to perform a bodily movement that the defendant is “capable of performing.” In an animal neglect case, defendant sought to introduce evidence that due to her Obsessive Compulsive Personality Disorder (OCPD) she involuntarily acquired a large number of cats. The court held that a compulsion to acquire cats does not tend to prove defendant was incapable of performing the bodily movements required to care for her cats. Evidence of OCPD was not relevant on the basis on which it was offered. State v. Hess, 273 Or App 26 (2015)

An act can be consciously performed in the absence of alternative courses of action

ORS 161.085(2) defines a “voluntary act” as “a bodily movement preformed consciously.” Here, defendant proposed that the jury be instructed “an act is voluntary if the actor has the ability to choose whether to commit an act that gives rise to criminal liability.” Defendant charged with animal neglect argued that she presented evidence from which a jury could find that she did everything she could to care for her cats, but was financially unable to provide adequate care for them. The court held, there is a difference between consciously performing an act and choosing to perform it. In the absence of having a choice between alternative courses of action a person can still consciously perform an act. Defendant’s requested jury instruction was a misstatement of the law. State v. Hess, 273 Or App 26 (2015)

For purposes of the anti-merger statute each neglected animal is a separate victim and not property

Oregon’s anti-merger statute, ORS 161.067(2), provides that “when the same conduct or criminal episode through violating only one statutory provision involves two or more victims, there are as many separately punishable offenses as there are victims.” Here, defendant argued that her 45 counts of animal neglect should be merged into a single conviction. She contended that her cats were her property and thus not victims. Accordingly, this left only one victim of her crimes – the public. The court rejected defendant’s argument and adopted the reasoning of State v. Nix, 355 Or 777, 782 (2014), vac’d, 356 Or 768 (2015). When the animal neglect statutes are violated, for purposes of the anti-merger statute, each animal neglected is considered a separate victim. State v Hess, 273 Or App 26 (2015)