Oregon Appellate Ct - Dec. 16, 2015

Latest revision as of 16:53, December 19, 2015

Robbery – Rob-2 Is Not Automatically a Lesser Included of Rob-1

Second-degree robbery is not a lesser included offense of first-degree robbery unless the accusatory instrument recites sufficient facts to satisfy each element of second-degree robbery. Here, defendant was charged with Robbery-1 and the court convicted him of a Robbery-2 as a lesser-included. As the indictment said nothing about defendant representing to the victim or anyone else that he was armed with a dangerous weapon—a required element of second-degree robbery—the indictment was not sufficient to satisfy each element of second-degree robbery. Moreover, even though the error was unpreserved, the court corrects the plain error because (1) the error mis-stated defendant’s charged conduct, (2) defendant is serving a prison sentence for a crime that was not alleged against him, and (3) it was apparent from the record that counsel’s failure to object was not a strategic decision. State v. Pittman 75 Or App 518 (2015)

Prior Violent Acts Are Admissible to Refute Defendant’s Statement That He Would Not Use Force to Harm Another Person

In a domestic violence trial for assault-4, “defendant testified that he was a 'caring man' who would not use force to harm another person. The evidence of defendant’s prior acts—which tended to refute defendant’s characterization of himself—became probative to impeach that testimony.” Thus, it was not an error to admit defendant’s prior bad acts of violence against the same victim. OEC 404(4)State v. Oliver 275 Or App 552 (2015)

Felony Resentencing - Where a Conviction is Reversed, The Affirmed Counts Require a Resentencing

Where an appellate court reverses a felony conviction, the remaining counts from the same case will be remanded for resentencing. Here, the trial court failed to merge defendant’s convictions for delivery of heroin within 1,000 feet of a school and unlawful delivery of heroin. The court rejects the state’s contention that resentencing would not affect the sentence (defendant received a concurrent sentence on the counts) and would waste judicial resources. Felony sentencing is complex and a single conviction can change the guidelines classification of the other convictions and, therefore, the presumptive and maximum sentences. State v. Skaggs 275 Or App 557 (2015).

Invited Error – Recommending An Otherwise Illegal Fine or Fee In a Sentencing Memo Invites Error

A party “cannot be heard to complain” about an error if the party “was actively instrumental in bringing [it] about.” Here, defendant recommended $1,600 in attorney fees in his sentencing memo and further concurred with the court when asked about it. Thus, even though the record was silent regarding defendant’s ability to pay, because the court was merely following the defendant's suggestion, it was not plain error. State v. Wehr 275 Or App 528 (2015)