Oregon Appellate Ct - May 20, 2015

Revision as of 10:30, May 22, 2015

A Person Has a Possessory Interest in an Mailed Package In Transit

"For an in-transit USPS express mail package, the police may not detain such a package without probable cause and a warrant or without the existence of one of the carefully delineated exceptions to the warrant requirement."

DUII – A Person With a CDL is Ineligible for DUII Diversion, Regardless of the CDL's Validity

A person who has an active commercial drivers license (CDL) is ineligible to enter a DUII diversion program, even if the CDL is invalid and subject to cancellation. Here, defendant argued that he was eligible for diversion because ODOT improperly renewed his CDL without the requisite medical certificate. The court finds that the validity of the CDL is not the correct question. All that matters where a CDL has been issued is whether the CDL has "expired or been canceled or revoked.” A CDL that is “subject to cancellation” has not been cancelled for the purposes of ORS 813.215(1)(h).” State v Crisafi, 271 Or App 267 (2015).

Attorney Fees - The Court Must Determine Ability to Pay

Before imposing attorney fees, a judge must determine whether the defendant has the ability to pay such fees. Here, the judge neither engaged in a colloquy with the defendant nor put facts on the record to support ability to pay. Thus, it was a plain error. The court decides to correct the error because defendant received prison time (as opposed to probation) and the record contained no evidence of another source of income or "that he has or will have the capacity to pay the fees." In contrast, the court recently chose not to correct the same error in State v Baco because the defendant received probation (and therefore was not prevented from working) and the defendant agreed to attorney fees on another case being sentenced at the same time. State v Hunt, 271 Or App 347 (2015).

Sex Abuse - OEC 412 - Evidence of Prior Consent is Admissible When the State Opens the Door By Bringing in Prior Sexual Contacts

The state opens the door to cross-examination that would otherwise be barred under OEC 412 when it elicits testimony on direct of prior sexual contacts between defendant and the complainant. Here, defense counsel sought to ask complainant about his relationship with defendant to support “defendant’s position that [complainant] had consented in fact to the charged contacts, as part of an ongoing voluntary relationship, and fabricated his accusations only after that “relationship broke apart.” The state argued on appeal that the only point of the line of defense questions at issue was to elicit a 412-barred inference that there was prior consensual sex, therefore the current incident was consensual. The court finds that complainant’s testimony under direct examination about his prior sexual relationship with defendant opened the door to such an inference: "The state’s invocation of OEC 412 in this posture is, respectfully, ironic". State v Cervantes, 271 Or App 234 (2015).

OEC 801(4)(a)(B) - Prior Consistent Statements to Rebut a Motive to Fabricate Must Have Been Made Prior to When the Motive Existed

Prior witness statements are not admissible at trial as “prior consistent statements” under OEC 801(4)(a)(B) to rebut a motive to fabricate when the prior statements were made at a time when a motive to fabricate already existed. Here, the defense in a sex abuse case was that the complainant made up the charges to get an immigration visa. The state, in response wanted to bring in a slew of consistent statements the complainant made after the immigration motive existed, arguing that "the prior consistent statements did not come “after the purported motive to fabricate arose,” because defendant presented the motive as “present and ongoing[.]. . . Consequently, A’s motive to lie, at least for immigration purposes, had not yet terminated. . .The state’s response is puzzling—and, with respect, may be a non sequitur." Because the prior testimony was made when there was already a motive for complainant to fabricate her story, the prior statements were not permissible to rebut defendant’s “motive to fabricate” assertion. State v Bautista, 271 Or App 247 (2015).

Merger - ORS 161.067 - Attempted Agg Murder with Two Victims Does Not Merge With Both Lesser Counts of Attempted Murder for Same Incident/Same Victims

Here's the setup: defendant tried to kill two people and is convicted of two counts of attempted murder (one for each victim) and 1 count of attempted aggravated murder with two victims. He argues that both counts of attempted murder should have merged into the attempted aggravated murder conviction because every element is subsumed, including both victims. Unfortunately for the defendant, State V Goltz says that where there are two identical attempted agg murder counts, each with two victims, they don't merge. The court says that it cannot "apply ORS 161.067 [the merger statute] in a manner that would create the nonsensical result that a defendant can be convicted of two counts of attempted aggravated murder for attempting to murder two victims in the same criminal episode, under Goltz, but nonetheless cannot be convicted of one count of attempted aggravated murder and one count of the lesser offense of attempted murder for the exact same conduct." The court reasons that the defendant "could not have it both ways". If a "count of attempted aggravated murder has two attempted murder victims, such that it subsumes both counts of attempted murder under ORS 161.067(1), then there are also two attempted murder victims under ORS 161.067(2),”. Two victims cannot become one victim for the purpose of merger. State v Munoz-Juarez, 271 Or App 261 (2015).