Oregon Appellate Ct - Oct. 14, 2015

Revision as of 10:27, October 16, 2015

Encouraging Child Sex Abuse (2nd Degree) – Direct Evidence About the Circumstances in Which Photos Are Taken Is Not Required

To be convicted of encouraging child sex abuse in the second-degree, on the basis of possessing sexually explicit photos of children, direct evidence about the circumstances in which the photos are taken is not required to prove the photos were taken with the intention of arousing the sexual desire of people who view them. Here, the children in the photos were in awkward positions and sexually suggested posses that a child would be unlikely to naturally adopt. Furthermore, the children were wearing tight-fitting underwear that barely covered their genitals and where the sole subjects of the photos. The state presented no evidence about the circumstances under which the photos were taken. The Court of Appeals held, that these facts can support a nonspeculative inference by a factfinder that the photos were taken with the intention of arousing the sexual desire of viewers of them. State v Mross, 274 Or App 302 (2015).

Reasonable Suspicion -

A traffic stop may be extended to investigate unrelated criminal conduct if the officer reasonably suspects, under the totality of the circumstances, that the person stopped has committed a crime. Here, defendant was driving in a high drug-activity area and he left his car immediately after he was stopped for traffic violation. He was nervous, visibly shaking, and would not maintain eye contact with he officer. The officer learned that defendant was on probation for possession of heroin. Furthermore, defendant would not keep his hand on the steering wheel when requested by the officer and repeatedly made furtive movements towards his sweatshirt pocket. The Court of Appeals held, that although individually none of the factors in this case would give rise to reasonable suspicion that defendant possessed a controlled substance, collectively they do. Therefore, the extension of the traffic stop was lawful. State v Huffman, 274 Or App 308 (2015). For Parole purposes, a Vulnerable Victim Need Only Be Vulnerable - The Vulnerability Need Not Have Been Exploited

• The parole board is entitled to re-determine the eligibility dates for parole after being directed by the Oregon Supreme Court to “conduct a hearing, using whatever procedures it deems appropriate, to set each prisoner’s release date according to the matrix in effect when he committed his crime”. The fact that the board had a hearing and called it a "prison term hearing" (normally only allowed once) did not change the fact that the board was following the direction of the Supreme Court. "The board's authority stemmed from the Supreme Court's remand instructions".
• A victim can be "vulnerable" for the purpose of the Parole Board's aggravating factor C solely due to being 74 years old. This is true, even though the victim would not vulnerable under the similar aggravating factor in the sentencing guidelines. To be a vulnerable victim for parole purposes, the vulnerability need not have been exploited.
• The parole board with only 3 of 5 members may apply two upward departure variations, assuming the decisions are unanimous.

Severy v Board of Parole and PPS, 274 Or App 330 (2015).

Preservation - Post-Conviction Relief - Requesting Remand for a New Trial Does Not Preserve the Remedy of a Delayed Direct Appeal

Where defendant requested a remedy of a new trial from the post-conviction court (due to his trial lawyer's failure to advise him of his appellate rights), he did not preserve the remedy of a delayed direct appeal. Because he never requested a delayed appeal or mentioned that he was entitled to one, he did not preserve such a claim for review. Lambert v Premo, 274 Or App 380 (2015).