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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 [[How_To_Edit|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 me at: '''Alex Bassos at abassos@gmail.com''' | | 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 [[How_To_Edit|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 me at: '''Alex Bassos at abassos@gmail.com''' |
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| | <h2>'''Recent [[The_Blog|Blog]] Posts'''</h2> | | <h2>'''Recent [[The_Blog|Blog]] Posts'''</h2> |
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| − | * [https://libraryofdefense.org/content/best-argument-ever-merger-dcsmcs-and-pcs Best Merger Arg Ever - DCS/MCS/PCS] | Ryan Scott
| + | {{Special:Wikilog/Blog:Main/5}} |
| − | * [https://libraryofdefense.org/content/restitution-appeals-and-little-known-statute Restitution Appeals and a Little Known Statute] | Ryan Scott
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| − | * [https://libraryofdefense.org/node/6277 Preservation at its Most Challenging] | Ryan Scott
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| − | * [https://libraryofdefense.org/node/6276 "Are you for or against the dog this time?" SCOTUS on drug-detection dogs] | Ryan Scott
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| − | * [https://libraryofdefense.org/node/6275 Ninth Circuit recognized that even sex offenders have a "particularly significant liberty interest" in family relationships] | Ryan Scott
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| − | <h2>'''This Week's Cases'''</h2>
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| − | [[File:negligence.jpeg|100px|right]]
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| − | '''Or.S.Ct: Standard for Criminal Negligence'''
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| − | A criminally negligent state of mind does not require “seriously blameworthy” conduct or that a defendant’s conduct shows an “indifference to consequences”; it requires only that the risk of a particular result from defendant’s conduct be “substantial and unjustifiable” and that failure to be aware of said risk is a “gross deviation” from a reasonable standard of care. Whether conduct exhibits a criminally negligent state of mind is heavily fact-dependent. Here, defendant was guilty of criminally negligent homicide in a vehicle collision where facts showed he was more than “merely inattentive”: he was driving in a known “safety corridor” under hazardous conditions, he was a professional driver who should have been aware of these conditions, several witnesses observed him driving unsafely prior to the collision, and the collision was avoidable. The Oregon Supreme Court also affirmed State v Betts (384 P2d 198, 1963) in noting that evidence of prior conduct logically permits an inference of an ongoing state of mind.
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| − | State v Lewis, ___Or___ (2012)
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| − | [[File:Bruised-leg.jpeg|100px|right]]
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| − | '''A Superficial Bruise Does Not Qualify as a Physical Injury'''
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| − | For the purposes of first-degree criminal mistreatment, “physical injury” means “impairment of physical condition or substantial pain." ORS 161.015(7). In turn, "impairment of physical condition" requires "harm to the body that results in a reduction in one's ability to use the body or a bodily organ for less than a protracted period of time." State v. Higgins, 165 Or App 442(2000). Here, defendant admitted to spanking her 16-month-old across his buttocks, which made the child cry and caused a bruise. However, the child’s doctor testified that the bruise was ‘superficial,’ and the child had full range of motion. Thus, there was no evidence that the bruise was a ‘physical injury’ for purposes of criminal mistreatment. State v. Wright
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| − | '''Increase in “Look-Back” Period for DUII Diversion Is Not an Ex Post Facto Violation'''
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| − | The five-year increase in the “look-back” period for DUII diversion eligibility does not result in “greater or additional punishment” for DUII such that the increase is an ex post facto violation. The change in eligibility requirements was not an increase in “punishment” because the primary purpose of the change was to be a procedural alternative to punishment, not to change the crime of or sentence for, DUII. State v. Carroll, __ Or App __ (2012).
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| − | '''Particularity Requirement for Admitting Abuse-Victim Hearsay'''
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| − | The pretrial notice required under OEC 803(18a)(b) for admitting an abuse victim’s out-of-court statements must identify the particular statements to be offered. Here, the state violated the rule by only providing copies of reports and stating that the reports “contain the particulars of statements made by [victim] that the state intends to offer.” State v. Bradley, __ Or App __ (2012); see also State v. Wood, __ Or App __ (Oct. 24, 2012).
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| − | '''Aiding-and-Abetting After-the-Fact Is Not a Crime'''
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| − | Oregon law does not recognize an aid-and-abet after-the-fact theory of criminal liability because “the aid-and-abet statute plainly applies only to conduct prior to or during the commission of a crime.” Here, the trial court erroneously convicted defendant of fraudulent use of a credit card for helping the principal actor escape arrest after defendant learned of the theft and misuse of the credit card. The court exercises its discretion to correct the trial court’s unpreserved error and remands for a new trial because defendant “stands convicted of something that is not a crime.” State v. Barboe, __ Or App __ (2012).
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| − | '''Merger, Valuation of Stolen Property, and Restitution in Juvenile Proceedings'''
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| − | The court affirms the juvenile court’s judgment of jurisdiction for acts that, if committed by an adult, would constitute first-degree arson, aggravated first-degree theft, and two counts of second-degree burglary. The two counts of burglary do not merge because youth had sufficient time to renounce his criminal intent between entering a school building with intent to commit theft and later reentering with intent to commit arson. ORS 164.115(1), governing the valuation of property under the theft statutes, does not bar the court from considering the cost of replacements as a factor in determining fair-market value. Here, the juvenile court properly considered the cost of replacement computers in finding that the stolen property was worth at least $10,000 as required for aggravated first-degree theft. The term “victim” for restitution purposes in juvenile proceedings includes insurance companies. “Victim” is given its definition in the Criminal Code, not the juvenile code. State v. G.L.D., __ Or App __ (2012).
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| − | '''Stop – Reasonable Suspicion'''
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| − | An order to come out of a house with your hands up is a stop. Here, there was reasonable suspicion for the stop where defendant entered a house occupied by two murder victims, didn’t match the description of anyone who lived there, and didn’t answer the telephone when officers called the house. Also, officers had probable cause to enter the house since there was probable cause to believe that there was evidence of recent murders inside and that it was at risk of being destroyed. And, for the same reasons, there were exigent circumstances that required the officers to secure the house. The officers gained probable cause to arrest when defendant came out of the house and they noticed blood on his pants. Finally, it was not a violation of Miranda when defendant asked if he needed an attorney and the officers responded that “It’s up to you.” Defendant’s statement was equivocal and officers responded appropriately. State v. Hudson, __ Or App __ (2012).
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| − | '''Dependency > Preservation > Failure to Make Required Findings'''
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| − | Because a dispositional order is required at the conclusion of a dependency hearing, the contesting party must object at that time if a juvenile court fails to include statutorily required findings under ORS 419B.340(2) in order to preserve the issue for appeal. DHS v. C.C.
| + | <h2>'''Appellate Review'''</h2> |
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| − | '''Dependency > Subject Matter Jurisdiction'''
| + | {{Special:Wikilog/Blog:Appellate Ct Review/1}} |
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| − | In a custody case involving multiple jurisdictions, ORS 109.741(1)(b) confers jurisdiction to Oregon when no other state has jurisdiction under paragraph (1)(a) and both subparagraphs (1)(b)(A) and (1)(b)(B) apply. Here, mother had “a significant connection” with Oregon because she:
| + | <h2>'''Appellate Review'''</h2> |
| − | * had belongings in Oregon
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| − | * had lived in the state for four years
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| − | * received prenatal care in Oregon
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| − | * applied for and collected public assistance in the state.
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| − | Furthermore, mother's contacts with health care institutions and professionals, her interactions with DHS, and her erratic conduct constituted relevant evidence "concerning the child's care, protection, training and personal relationships" in Oregon under ORS109.741(1)(b)(B). Therefore, the Oregon court had jurisdiction. DHS v. S.C.S
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| − | '''Dependency > Continued Jurisdiction'''
| + | {{Special:Wikilog/Blog:Appellate Ct Review/1}} |
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| − | A court may not base an order for continued jurisdiction on unalleged facts unless the underlying petition provided sufficient notice of what the parent must do to prevent continued jurisdiction. Here, the petition stated that the mother had alcohol problems and pleaded guilty to assault and strangulation. Thus, mother had sufficient notice that her anger problems were at issue. DHS v. M.M.B.
| + | <h2>'''OR Supreme Review'''</h2> |
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| − | '''Failure to Demand a Speedy Trial'''
| + | {{Special:Wikilog/Blog:OR Supreme Ct Review/1}} |
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| − | Where a defendant is in prison and knowingly fails to demand trial, the delay is attributable to the state, but it is otherwise reasonable under ORS 135.747. Here, defendant failed to appear for two separate court dates for a misdemeanor DUII. He was arrested on a bench warrant, and shortly thereafter, his probation on an unrelated charge was revoked. While in the DOC, defendant waited nine months to demand trial. The court holds that because defendant knowingly failed to demand, the nine-month delay was reasonable, and the cumulative delay of 16 months attributed to the state was also reasonable. State v. Bircher.
| + | <h2>'''US Supreme Review'''</h2> |
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| − | '''MJOA – Variance between Indictment and Evidence'''
| + | {{Special:Wikilog/Blog:US Supreme Ct Review/1}} |
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| − | Variance between the indictment and the evidence at trial is prejudicial, “[i]f thedefendant would need to develop a different argument to contend with the variance.” State v. Boitz, 236 Or App 350, 356 (2010). Here, defendant was charged with hindering prosecution. The indictment alleged that the defendant “did***prevent, by means of deception, the discovery or apprehension of Shane Culp.” This differed from the statutory language and jury instruction which states that a person hinders prosecution where he, “[p]revents or obstructs, by means of * * * deception, anyone from performing an act which might aid in the discovery or apprehension ofsuch person[.]” Defendant’s argument was that defendant did not prevent sheriffs from apprehending Shane Culp since the sheriffs decided that defendant was lying and ultimately arrested him. Instead, defendant prevented the sheriffs from immediately searching the house which would satisfy the statute but not the indictment. Thus, the variance in this circumstance was prejudicial, and the court reverses. State v. Hansen
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| − | '''DMV Can’t Suspend a License Twice for the Same Failure to Pay a Fine'''
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| − | Where the DMV has already suspended a person’s license for the maximum statutory period for failure to pay traffic fines, the DMV cannot re-suspend the license because the driver continues not to pay the fine. Here, because defendant had already been suspended for the statutory period, DMV lacked the authority to suspend his license again, and the appropriate remedy is exclusion of the later suspension order. Richardson v. DMV.
| + | </td> |
The Library |
Even a Child Can Edit This Website
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 me at: Alex Bassos at abassos@gmail.com
Recent Blog Posts
Felony murder occupies an unusual place in the murder firmament. It does not require an intent to kill. Nor does it require the defendant kill the victim. Yet it carries the exact same sentence as any other murder in the 2nd degree (live, with a 25 year mandatory minimum before eligibility for parole). Given that significantly less culpability is built into the offense, it seems to me that every felony murder conviction is vulnerable to a challenge under Article I, section 16. But that's not the point of today's post.
Instead I want to discuss three challenges to felony murder. The first applies to every felony murder. The second is limited to those situations where the defendant's only role is as an accomplice to the predicate felony. And the third applies to a very specific theory of felony murder: when a child dies from injuries sustained during an assault in the second degree.
→ continue reading...“Shadow Challenge” is a type of motion to controvert, and the name comes from The Hollow Men by T.S. Eliot:
- Between the idea
- And the reality
- Between the motion
- And the act
- Falls the Shadow.
Police get a search warrant. When they do, there is probable cause that evidence relevant to the crime will be found in the location to be searched. But there's many a slip between the cup and the lip.
If the police – after they have obtained a search warrant, but prior to its execution – obtain information that undermines the probable cause requirement, the Fourth Amendment to the United States Constitution obligates them to return to the magistrate for a new finding of probable cause. United States v. Marin Buitrago, 734 F2d 889 (2d Cir 1984). See also, Washington v Reichenbach, 153 Wash 2d 126, 101 P3d 80 (2004); United States v. Bowling, 900 F2d 926 (6th Cir 1990).
In State v. Mendez Perez, 373 Or 591 (2025), the Oregon Supreme Court looked at whether a handful of arguments made by the prosecutor in closing/rebuttal merited reversal, when the defendant did not object to those arguments. The court concluded the various statements did not merit reversal.
In his concurrence, Justice Bushong, joined by Justice James, suggested that the court's blanket approach to "plain error" may not be appropriate in every situation where an error is unpreserved. That discussion, which is highly valuable, is something for appellate attorneys to consider, and I don't plan to get into it here.
Justice Bushong goes on and highlights some -- but not all -- of arguments that are inappropriate and objectionable when made by the prosecutor. His list starts on page 617 of the opinion. It is a good list, and I highly recommend reviewing it before your next trial. Note also that Justice Bushong recommends a law review article -- Michael D. Cicchini, Combating Prosecutorial Misconduct in Closing Arguments, 70 Okla L Rev 887 (2018) -- for additional examples of inappropriate argument.
Recently, a prosecutor conceded a motion in limine that the defense had filed to keep out some of the state's evidence. He agreed it should be excluded, but he wanted it on the record that it might become admissible if the defense opens the door.
Sure, I said. As far as I'm concerned, that's always true. Every MiL ruling is tentative.
If you lose a pretrial motion in limine to exclude a certain part of the state's evidence, you need to be prepared to raise it again, depending on how the evidence comes in.
As the Oregon Supreme Court recently reiterated in State v. Akins:
- To the extent that defendant’s OEC 403 challenge in this court is based on how the evidence came in at trial, not on the trial court’s pretrial ruling on defendant’s motion in limine,that challenge is unpreserved for appellate review because defendant did not assert an OEC 403 objection when the testimony was offered and received at trial, as noted above. See Pitt, 352 Or at 574 (stating that, after the trial court has denied a pretrial motion to exclude evidence, parties should make “the same or other objections, if war-ranted, when a party offers the evidence during trial”); Perry, 347 Or at 118 (stating that, even though the trial court had denied a defendant’s pretrial motion to exclude evidence, “it was defendant’s responsibility to point out to the trial court” any additional objections to the evidence when it was offered at trial). Because our decision in this case is based on the record at the time of the motion in limine, it does not preclude trial courts in other cases from assessing whether such testimony is inadmissible under OEC 403 in the con-text in which the testimony may be offered at trial.
So for example, if the judge allows in expert testimony about "delayed disclosure" before trial starts, you'll want to renew the objection if the expert happens to say that such disclosures go up after the middle school health class has done a segment on abuse, and the complainant in your case only came forward at the same time.
Akins again:
- Expert testimony connecting the expert’s explanation of delayed reporting to the specific reasons offered by the victim for the delay could be inadmissible as vouching. In other instances, the probative value of such testimony may be substantially outweighed by the danger of unfair prejudice to the defendant, making the evidence inadmissible under OEC 403 or at least requiring an appropriate limiting instruction.
1. Any lengthy sentence imposed consecutively to the murder sentence is arguably unconstitutional under Article I, section 16, because the defendant does not begin serving that sentence until after parole board has found they are likely to be rehabilitated soon. A lengthy sentence that you only serve after essentially being rehabilitated is insane and, almost by definition, disproportionate.
2. The gun minimum must be imposed on the primary offense (assuming it's attached to the primary offense). This is because there is no statutory authority for deferring the gun minimum to a later count. So no more imposing the gun minimum on the felon in possession and running it consecutively to murder w/ a firearm.
3. UUW merges with Murder w/ a firearm.
All of the arguments can be found on the Library of Defense, and of course I will always provide them to anyone who asks.
Next 20 Articles Appellate Review Appellate Review OR Supreme Review US Supreme Review |
