Oregon Appellate Ct - Jan 22, 2015

Latest revision as of 18:04, January 23, 2015

Theft I - Merger - ORS 164.055(1) Lists Ways to Elevate to Theft I, Not Separate Statutory Provisions

The variety of ways, listed in ORS 164.055(1), that the basic crime of theft can be elevated to theft in the first degree are not separate statutory provisions. Thus, multiple convictions for theft I based on different sub-sections of ORS 164.055(1) merge. Here, during the same criminal episode, defendant stole antiques worth more than $1000.00 and a gun. He was convicted of theft I for committing theft of property worth more than $1000.00 (164.055(1)(a)) and for committing theft of a firearm (164.055(1)(d)). Because those provisions are essentially different theories of theft I, similar to the different theories of Robbery II, the resulting convictions must merge into a single conviction for theft I. State v Slatton, 268 Or App 556 (2015).

Statute of Limitations - Facts Relied on to Toll the SOL Must Be Alleged in the Charging Instrument

The question for a court deciding a statute of limitations demurrer is whether it appears on the face of the indictment that the crime was committed within the time allowed: "Any facts relied on to toll the statute of limitations must be set forth in the indictment to survive a demurrer for failure to comply with ORS 132.540(1)(c). Also, the correct vehicle for the statute of limitations is a demurrer. State v Nistler, 268 Or App 470 (2015).

Criminal Mischief III - Tamper Requires an Adverse Effect to the Property

“For the purposes of criminal mischief III ("tampers or interferes with property of another"), ‘tampers’ requires conduct that has an adverse effect on the property or its use.” Here, defendant chained another person’s vehicle to his own and moved it approximately 20 feet, resulting in damage to the bumper. The defense was that defendant knew he was moving it but he did not intend to damage the property. Because tampering requires more than just moving property, intent to damage roughly fits with "knowingly tampering", the words used in the charging instrument. Thus, the trial court's instruction that changing property by itself was sufficient was in error because it wrongly implied that anyone who has knowingly moved another's property has tampered with it, regardless of harm. Note, however, that it's not clear that this case comes out the same way if the crime was charged as "interferes" rather than "tampers". Also, the criminal mischief III statute does not seem to require that a person know or intend an adverse effect to the property; the only articulated mental state for the crime is intent to cause substantial inconvenience. Intent to cause damage normally raises the crime to criminal mischief II. This case would seem to arise from idiosyncratic choices in charging. State v. Lee, 268 OR App 587 (2015)

Best Evidence Rule - Testimony About a Video in Lieu of the Actual Video is Inadmissible

In accordance with the Attorney General's concession, the court finds that it was error to allow a Tri-Met officer to testify about a video without introducing the video itself. The error was not harmless because the video was the state's strongest evidence of intent, the only issue at trial. The video supposedly showed defendant striking and breaking the window of a Max train. State v Urbaschiak, 268 Or App 609 (2015).

Juvenile Waiver to Adult Court for 12 to 14 Year Olds Requires Only an Understanding of One's Physical Actions and the Criminality or Wrongness of the Actions

The court interprets ORS 419C.349(3), the juvenile waiver provision for 12 to 14 year olds ("possesses sufficient sophistication and maturity . . . to appreciate the nature and quality of the conduct involved") to mean only that the juvenile "understands what they are doing in a physical sense and understands that their actions are wrong or will likely have criminal consequences." Here, several experts presented testimony that the 13 year old juvenile-defendant understood that hitting decedent over the head and stabbing him was against the law and would potentially harm the decedent. Because there was evidence that juvenile had “awareness regarding the nature of the criminal act, the degree of his participation in the criminal act, and an awareness of the consequences of the criminal act if apprehended by the authorities,” he was eligible for waiver.

J. Egan dissents, joined by J. Ortega, arguing that in arriving at their definition the majority improperly analogizes the requirements of 419C.349(3) to the criminal insanity statute, ORS 161.295(1). The majority conflates the phrase “to appreciate the criminality of the conduct or to conform the conduct to the requirements of the law,” found in ORS 161.295(1), with the phrase “nature and quality, reducing “nature and quality” to merely understanding the wrongfulness and physicality of the conduct without reference to the underdevelopment of the juvenile’s mind. Rather, to “appreciate the nature and quality” of the conduct, the youth must possess an emotional and intellectual understanding of the effect on the victim.” The majority’s test excises the developmental requirement from the waiver statute. State v. J.C.N.-V, 268 Or App 505 (2015).

Vouching - Explanation of How Children Typically Describe Their Bodies Is Not Vouching

Testimony by a doctor that the vast majority of ten-year-old girls describe the area between their labia and hymen as inside their body is not impermissibly commenting on the credibility of the complainant. Such a statement is “not a direct or indirect statement that the doctor believes that [complainant] is telling the truth". Rather, it is evidence supporting the state's explanation for why the complainant described her body the way she did. What otherwise would seem to be a contradiction can instead be viewed as consistency. State v. Sundberg, 268 Or App 577 (2015).

Evidence – Retrograde Extrapolation is Scientific Evidence

Retrograde extrapolation (i.e. determining a person’s blood alcohol level at the time of driving from a later breath or blood test) is scientific testimony that requires qualified expert testimony. Here, there was an adequate foundation for scientific evidence where the expert testified to:

1) his expertise on retrograde extrapolation;

2) the generally accepted understanding of how alcohol is absorbed and eliminated from the body.

3) The variables that affect absorption and elimination.

4) How the expert considered all those variables. And

5) the reasoning in applying the evidence to the principles of alcohol absorption and elimination.

As such, there was sufficient foundation under OEC 702 for the expert to testify about retrograde extrapolation. State v. Baucum 268 Or App 649 (2015).

Civil Commitment – Appropriate to Deny Conditional Release Where Person Maintains Suicidal Ideation

A judge does not err in denying conditional release to a person who (1) was previously committed for attempting suicide, and (2) prior to the suicide attempt that led to this commitment hearing neither consulted someone professionally nor disclosed suicidal thoughts to his family. Despite the person’s wife offering to watch him upon release, it was reasonable for the court to find that the wife would not able to watch at all times and that it was highly likely that the person would try to commit suicide again. State v. T.C., 268 Or App 615 (2015).

Traffic Stop – Can’t Stop Defendant for Stopping in an Intersection when Defendant is Not in an Intersection

Police lack probable cause to stop a car under ORS 811.550(5) (stopping a car in an intersection) when the defendant is not actually in an intersection. When the officer clarified his testimony that defendant was “in an intersection” by drawing an “X” on a map showing that defendant had actually stopped his car outside of the intersection, the officer lacked probable cause to initiate a traffic stop under ORS 811.550(5). State v. Heilman, 268 Or App 596 (2015).

Parole Consideration Hearings - No Right to Subpoena

Defendant had neither a Due Process nor a statutory right to subpoena witnesses to his parole consideration hearing. There is no statutory right because ORS 144.315, the statute governing parole consideration hearings, does not mention subpoenas and was enacted at the same time as (1) the statute for parole revocation hearings, which does give the right to subpoenas duces tecum and (2) the statute excepting the Parole Board generally from subpoena authorization. In other words, the parole consideration hearing statute does not impliedly authorize subpoenas because (1) the legislature knew how to explicitly authorize subpoenas in the parole context and (2) would be contradicting the general statute exempting the Board from such powers. There is no state constitutional right because "it is axiomatic that Article I, section 10 is not a due process clause. There is no federal due process right to subpoenas because under the holding of Swarthout v Cooke, 562 US at ___ (2011), the ability to subpoena witnesses is not a requirement for a constitutionally adequate parole consideration hearing. Smith v Board of Parole, 268 Or App 457 (2015). Smith v Mills, 268 Or App 454 (2015).

Securities Fraud - MJOA - Investment Contract - Common Enterprise - Horizontal Commonality

A transaction has the requisite "common enterprise" and "horizontal commonality" to be an "investment contract" under ORS 59.135 (securities fraud) where (1) investors are solicited through the media, (2) investors are told they're invested in a development with multiple lots, (3) the investors know there are other investors, and (4) the investments are pooled. State v Nistler, 268 Or App 470 (2015).