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| − | '''Right to Jury Trial > Misdemeanor Charge Prosecuted as Violation''' | + | '''Mens Rea Jury Instruction Must be Statute Specific''' |
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| − | Where the DA elects to prosecute a misdemeanor charge as a violation, the defendant is entitled to a jury trial if the prosecution and conviction “retains the characteristics of a criminal prosecution.” The court looks to the type of offense, the nature of the prescribed penalty, the collateral consequences associated with conviction, the significance of the conviction to the community, and the pretrial practices associated with arrest and detention for the offense to determine if a prosecution retains criminal characteristics. Brown v. Multnomah County Dist. Ct., 280 Or 95 (1977). Here, charges for third-degree theft and attempted first-degree theft prosecuted as violations, entitled the defendant to trial by jury because:
| + | The state must prove mens rea with regard to the specific elements of the substantive criminal statute. Here, defendant was charged with second-degree criminal mischief requiring “damages.” Damages are a result not a circumstance Thus, a jury instruction defining reckless as awareness and conscious disregard of “a risk that a result will occur or that a circumstance exists” was reversible error. State v. Davis, __ Or App __ (2012). |
| − | * Theft has been a crime recognized by society for a very long time.
| + | |
| − | * The nature of the $6,250 maximum fine imposed under attempted first-degree is criminal.
| + | |
| − | * A defendant can be arrested and detained for theft, regardless of whether prosecuted as a misdemeanor or a violation.
| + | |
| − | State v. Fuller, __ Or App __ (2012). | + | |
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| − | '''A Belief is Reasonable (or not) Based on What the Officer Knew at the Time''' | + | '''Officer’s Decision to Impound Vehicle, And Thus Conduct Inventory, May Be Discretionary''' |
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| − | When assessing whether an officer’s subjective belief is objectively reasonable, the court should not consider other benign explanations for defendant’s behavior or evidence gathered after the stop. State v. Ellis, __ Or App __ (2012).
| + | An officer’s decision to impound a vehicle may involve the exercise of discretion, even though that discretion will determine whether an inventory of the vehicle occurs. The Portland Police Bureau towing policy mandates towing and inventorying a vehicle when citing a driver for driving uninsured, but not when citing for failure to carry proof of insurance. An officer may constitutionally choose which citation to issue. State v. Penney, __ Or App __ (2012). |
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| − | '''Speedy Trial > Notice Need Not be Received by Mail''' | + | '''First Degree Criminal Misconduct Not Applicable to Affirmative Conduct''' |
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| − | A delay caused by a defendant’s failure to appear is reasonable if the defendant received notice of the missed court date. A defendant is not required to receive notice by mail. Here, defendant received notice via prior hearings and agreements with the court, and notices sent to his last known address and given to his attorney. State v. Stephens, __ Or App __ (2012).
| + | "Withholding necessary and adequate…physical care" under ORS 163.205(1)(a) does not apply to affirmative conduct or a failure to stop engaging in that affirmative conduct. Here, defendant’s act of placing her hand over the victim's mouth leading to victim’s death did not constitute first-degree criminal mistreatment. State v. Kaylor, __Or App__ (2012). |
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| − | Where a defendant failed to inform the court of her current address as required by her conditions of release and notice is sent to her most recent address on file, the resulting delay from failure to appear is reasonable. State v. Turner, __ Or App __ (2012). | + | '''Theft by Receiving – Defendant “Knows” Property Was Subject of Theft Where He Knew the Victim Disputed His Right to Possess the Items''' |
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| − | '''Trial Court’s Mistaken Reliance on Inapplicable Statutes Does Not Vitiate Finding of Probable Cause'''
| + | “[I]n order to be found guilty of theft by receiving, defendant must have known or believed that the articles of personal property at issue were the subject of theft.” Here, the victim was in the hospital and asked defendant to sell his property and give the money to victim’s wife. Instead, the defendant retained the property to settle a debt that the defendant felt victim owed to him. A year later, the victim tried to recoup the property, and the police contacted defendant. The court holds that a rational trier of fact could have found that the defendant knew the property he retained was the subject of theft. State v. Smith, __ Or App __ (Oct 2012). |
| | | | |
| − | Though the trial court mistakenly relied upon statutes that defendant could not have violated, the facts as the officer perceived them satisfied the elements of a traffic infraction. Therefore the officer had probable cause to stop defendant. That the statutes relied upon by the state on appeal were different than those cited by the trial court was irrelevant; neither side argued any statutes before the trial court, both sets of statutes involved the same operative facts, and the pertinent facts were recorded on video. State v. Ordner, __ Or App __ (2012).
| + | '''Relevancy of “Delayed Reporting” Testimony in Sexual Abuse Cases''' |
| | | | |
| − | '''Consent to Search > Invalid when Obtained by Knocking on Back Door'''
| + | Expert testimony regarding “delayed reporting” in a child sexual abuse case may be relevant even when defendant does not intend to impeach the complainant’s credibility based on that delay. Here, testimony on delayed reporting was relevant to explain the five-year reporting delay and to counter any inference that the delay was indicative of fabrication. State v. White, __ Or App __ (2012). |
| − | | + | |
| − | Police violated defendant’s constitutional rights by trespassing onto the curtilage of his home and knocking on the back door. The trespass tainted defendant’s consent to search the home, and therefore, all evidence subsequently obtained is suppressed. State v. Unger, __ Or App __ (2012).
| + | |
| − | | + | |
| − | '''Stop > No Reasonable Suspicion from Standing Next to Intoxicated Friend in Parking Lot'''
| + | |
| − | | + | |
| − | Defendant was stopped when police took and retained his ID for a warrant check. No reasonable suspicion supported the stop when he was standing with his girlfriend next to a parked car while police detained his intoxicated friend. The evidence subsequently obtained that defendant had driven under the influence of alcohol was a result of the unlawful stop and is suppressed. State v. Smith, __ Or App __ (2012).
| + | |
| − | | + | |
| − | '''Speedy trial > Cumulative Delay of 19 Months Attributed to State Unreasonable in a Misdemeanor'''
| + | |
| − | | + | |
| − | A cumulative period of 19 months, attributable to the state, in a misdemeanor case is unreasonable even though 14 months of the time is reasonable. The courts have generally concluded that state-caused delays over 15 months are generally unreasonable, though in prior cases the majority of the delay was unjustified. Here, defendant was charged with misdemeanor DUII. The state’s delay was attributed to various errors including (1) the court’s unexplained docket error, (2) the state awaiting a decision in Machuca, (3) rescheduling due to jury selection in a death penalty case, and (4) various scheduling conflicts. The court held that the unexplained docket error (accounting for 5 months) was not adequately explained and was therefore unjustified. Although the other delays were “routine scheduling delays,” the cumulative period of nineteen months in a misdemeanor case was unreasonable. State v. Peterson, ___ Or App __ (2012).
| + | |
| − | | + | |
| − | '''Physical Restraints at Trial > Oregon and Federal Due Process Requires the Court to Find Defendant Posed an Immediate and Serious Risk Before Placing Her in Physical Restraints at Trial'''
| + | |
| − | | + | |
| − | To restrain a defendant during trial, the judge must independently find on the record that, “the defendant posed an immediate or serious risk of committing dangerous or disruptive behavior, or that he posed a serious risk of escape.” Where the court restrains a defendant during trial without “substantial justification,” the defendant suffers “manifest prejudice,” regardless of whether the restraints are visible to jurors. Here, the jail placed defendant in a leg restraint based on their classification of her as a “medium risk.” Although defendant had 13 prior felony convictions, none involved escape or anything suggesting a flight risk. She wore pants and a dress to cover up the restraint, and the court was willing to allow her to take the stand and leave the stand outside the presence of the jury. Instead, Defendant entered a conditional guilty plea. The court holds that the trial court was not authorized to defer to the jail’s classification without particularized evidence that justified it. State v. Wall, ___ Or App ___ (2012)
| + | |
| − | | + | |
| − | '''Motion to Withdraw Admission does not Preserve Juvenile’s Argument that Waiver of Counsel was Not Knowing, Voluntary and Intelligent'''
| + | |
| − | | + | |
| − | Youth’s motion to withdraw her admission did not preserve her argument that she did not validly waive her right to counsel because counsel did not argue it in the motion or the hearing. Here, Youth had waived her right to counsel at the time of the admission. Her Counsel’s motion to withdraw the admission because Youth did not understand what she was admitting did not preserve a claim that her waiver of counsel was not knowing and voluntary. State v. CS, __ Or App __ (2012)
| + | |
| − | | + | |
| − | '''PCR > Must Have a Tendency to Affect the Result of Trial'''
| + | |
| − | | + | |
| − | The following errors were not sufficient for post-conviction relief because of the ample evidence of defendant’s guilt:
| + | |
| − | | + | |
| − | (1) Defense counsel’s failure to object to detectives’ hearsay statements that both co-defendants had implicated the other in the crime.
| + | |
| − | | + | |
| − | (2) Defense counsel’s failure to call a cell phone expert to dispute the state’s evidence that the cell tower data from defendant’s phone did not necessarily mean that he was in Springfield, rather than in Eugene.
| + | |
| − | | + | |
| − | (3) Defense counsel’s failure to call a witness who would testify that the defendant had told her that co-defendant was going to do the robbery so that she could warn the victims and police. Counsel had subpoenaed the witness, and she failed to appear.
| + | |
| − | | + | |
| − | (4) Failing to timely object to a discovery violation.
| + | |
| − | | + | |
| − | Derschon v. Belleque, __ Or App __ (2012).
| + | |
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The OCDLA Library of Defense is a digital manual for criminal defense built by the collective contributions of OCDLA members. Ultimately, it will contain every law, every case, every expert, every resource and every good idea an Oregon defense attorney might need. But only if you help us out. If you visit a page on this website that is missing a case or has a typo, please edit the page. You can even reorganize or rewrite the page if you're feeling ambitious. If you have any questions or suggestions, please email Alex Bassos at abassos@gmail.com
Recent Blog Posts This Week's Cases
Mens Rea Jury Instruction Must be Statute Specific
The state must prove mens rea with regard to the specific elements of the substantive criminal statute. Here, defendant was charged with second-degree criminal mischief requiring “damages.” Damages are a result not a circumstance Thus, a jury instruction defining reckless as awareness and conscious disregard of “a risk that a result will occur or that a circumstance exists” was reversible error. State v. Davis, __ Or App __ (2012).
Officer’s Decision to Impound Vehicle, And Thus Conduct Inventory, May Be Discretionary
An officer’s decision to impound a vehicle may involve the exercise of discretion, even though that discretion will determine whether an inventory of the vehicle occurs. The Portland Police Bureau towing policy mandates towing and inventorying a vehicle when citing a driver for driving uninsured, but not when citing for failure to carry proof of insurance. An officer may constitutionally choose which citation to issue. State v. Penney, __ Or App __ (2012).
First Degree Criminal Misconduct Not Applicable to Affirmative Conduct
"Withholding necessary and adequate…physical care" under ORS 163.205(1)(a) does not apply to affirmative conduct or a failure to stop engaging in that affirmative conduct. Here, defendant’s act of placing her hand over the victim's mouth leading to victim’s death did not constitute first-degree criminal mistreatment. State v. Kaylor, __Or App__ (2012).
Theft by Receiving – Defendant “Knows” Property Was Subject of Theft Where He Knew the Victim Disputed His Right to Possess the Items
“[I]n order to be found guilty of theft by receiving, defendant must have known or believed that the articles of personal property at issue were the subject of theft.” Here, the victim was in the hospital and asked defendant to sell his property and give the money to victim’s wife. Instead, the defendant retained the property to settle a debt that the defendant felt victim owed to him. A year later, the victim tried to recoup the property, and the police contacted defendant. The court holds that a rational trier of fact could have found that the defendant knew the property he retained was the subject of theft. State v. Smith, __ Or App __ (Oct 2012).
Relevancy of “Delayed Reporting” Testimony in Sexual Abuse Cases
Expert testimony regarding “delayed reporting” in a child sexual abuse case may be relevant even when defendant does not intend to impeach the complainant’s credibility based on that delay. Here, testimony on delayed reporting was relevant to explain the five-year reporting delay and to counter any inference that the delay was indicative of fabrication. State v. White, __ Or App __ (2012). |
