Oregon Appellate Ct - Sept. 4, 2014

Revision as of 12:12, September 10, 2014

Felony Assault IV - Prior Conviction Includes a Plea Into a Diversion Program

The term “previously been convicted”, for the purpose of enhancing assault IV to a felony, applies to “defendants found guilty of previously assaulting the same victim,” even when there is no formal judgment of conviction. Here, defendant pled guilty to assault in the fourth degree and entered into a deferred sentencing program (DSP). While in DSP, defendant got into another “scuffle” with the same complainant as in the first assault. Because Defendant’s guilty plea was accompanied by a criminal sanction, it was sufficient to constitute a previous conviction for ORS 163.160(3). State v Turntine, 265 Or App ___ (2014).

In a case for criminal trespass, evidence that establishes defendant’s belief that final eviction proceeding was illegal is irrelevant to whether defendant knowingly entered or remained in a dwelling unlawfully. Here, defendant was charged with criminal trespass after returning to his former residence after being evicted earlier that day. At trial defendant tried to introduce a newspaper article and a letter from his civil attorney to show that defendant reasonably believed that the eviction proceedings were unlawful and that he still owned the residence. Because the eviction order resulted from a final eviction proceeding, and that order had to be obeyed until set aside, defendant’s belief that the order was unlawful “was of no consequence” as to whether defendant knew that he entered the residence unlawfully. State v Lucero, 265 Or App ___ (2014).

The court of appeals will remand on all counts when there is an instructional error that affects jury’s finding on a predicate offense. Defendant was convicted of 3rd degree assault, felony 4th degree assault, menacing, and three counts of reckless endangerment. Defense theory was self-defense against a potential burglary. State conceded error in court failing to instruct the jury on the definition of burglary and error in denying defendant’s MJOA with regards to felony enhancement of the fourth-degree assault. Because there was error that affected jury’s predicate consideration of whether there was any assault, COA ordered retrial on all counts, but limited 4th degree assault to misdemeanor. State v Duvall, 265 Or App ___ (2014).

A motel clerk was a citizen informant whose report had sufficient indicia of reliability to give rise to officer’s reasonable suspicion of criminal activity, even though the clerk did not personally observe any criminal activity, when 1) the clerk identified himself to the dispatcher when he called police to report guests’ complaints and identified himself to officers when officers arrived. 2) Clerk obtained information in a reliable way; here the motel guests called the clerk multiple times about the defendants, the guests provided details on the defendants, and the relationship between clerk and guest made it likely that guests would contact clerk before calling police. 3) Officers corroborated the tip when they verified the location of the motel room, the room number, the number of people in the room, and saw nothing to contradict the clerk’s report. Thus, even though the citizen report had sufficient detail to give rise to reasonable suspicion of criminal activity. State v Hunt, 265 Or App ___ (2014).

Generalized Desire to Commit Crime Weeks After Incident Irrelevant to Intent

Generalized and hypothetical statements made weeks after an incident are inadmissible to prove intent. Here, defendant told his girlfriend, 2 weeks after being arrested for DCS, that "I want to slang through him". Assuming, as the officer's testified, that "slang" means to deliver drugs, defendant’s stated desire to deliver cocaine at some “unspecified later time,” without more and made two weeks after an alleged drug delivery, was irrelevant to the question of whether “defendant intended to deliver the cocaine on his person at the time of the alleged crime.” "Given the generalized and hypothetical nature of defendant's statement, however, the only way that it shed light on his past state of mind was by showing that defendant had a propensity to deal drugs."State v Abraham, 265 Or App ___ (2014).

Motion for Continuance to Find a Subpoenaed Witness

It was not an abuse of discretion where the trial court denied defendant’s motion for a continuance to track down a subpoenaed favorable defense witness. The witness had a warrant for her arrest and defense counsel did not describe how she would track down the witness despite the witness’s attempts to avoid the trial. State v Gallegos, 265 Or App ___ (2014).

Former Speedy Trial - Judicial Explanation of Long Delay Due to Docket Congestions May Create Reasonableness

The right to a speedy trial under former ORS 135.747 is not violated by “state-attributable delay” so long as the court provides a detailed and reasoned explanation for the causes of the delay. To preserve the issue for appeal the defense must suggest why the trial court’s explanation is inadequate. Here, 16 months of “state-attributable delay” was not unreasonable where 12 months delay was caused by 1) the longest criminal trial the trial court judge had seen in 23 years on the bench, 2) there was a complex civil trial that required intense pretrial work, 3) the civil trial went longer than expected. Even though that left four months unaccounted for, because the defense did not suggest why the trial court’s explanation was insufficient the issue of the unexplained delay was not preserved for appeal. State v Hall, 265 Or App ___ (2014).