Oregon Appellate Ct - Aug 31, 2016

Revision as of 20:44, September 1, 2016

Denial of Motion to Sever is Not Error when Sex Abuse Allegations are of Same or Similar Character

The court concludes that because the allegations of sexual abuse were of the same or similar character and defendant's was not substantially prejudiced by joinder, the trial court did not err in denying defendant's motion to sever charges concerning two different victims. Defendant was charged with sodomy and sexual abuse of his nephew, K, in the 1990s, and sodomy and sexual abuse of a different nephew, J, more than a decade later. The court holds that the crimes involving K and the crimes involving J were of a similar character because defendant "target[ed] his young, male family members for sexual purposes." The court also holds that the joinder did not substantially prejudice defendant even though the allegations were not cross-admissible because the evidence was "sufficiently simple and distinct to mitigate the dangers created by joinder." Additionally, the trial court gave a limiting instruction that it could not consider evidence concerning one victim as evidence of crimes concerning the other victim unless and until it had concluded that the charged conduct had taken place and at least 10 jurors agreed on the verdict.

State v. Buyes, 280 Or App 564 (2016) (Garrett, J.)

Restitution - Damages for Hit & Run Include Money Spent by Insurer for Purposes of Restitution

ORS 811.706 authorizes restitution awards to insurers. Defendant was convicted of failing to perform the duties of a driver after she left the scene of an accident where the victim's car sustained $5,307.52 in damages. The trial court ordered that defendant pay $500 for the deductible to the victim and the balance to the insurer. Defendant argued that under ORS 811.706 the trial court only could award restitution to the owner of property. The court concludes that the plain text of the statute contains no such limitation, and any suggestion in earlier case law was dicta. ORS 811.706 authorizes a restitution award of the amount of damages caused by the defendant in the accident underlying the hit & run, regardless of who has borne the financial burden.

State v. Anderson, 280 Or App 572 (2016) (Dehoog, J.)

Restitution - Defendant Bears Burden of Proving that Victim Failed to Mitigate Damages

The trial court did not err in awarding restitution for the full value of the victim's motorcycle after concluding that defendant failed to prove that value of parts that the victim could have sold to mitigate his damages. Defendant and some accomplices stole a motorcycle from the victim that, at the time it was taken, was worth $4,000. The motorcycle was returned to the victim with several parts missing and the victim sold the damaged motorcycle to a repair shop for $100. Later, an accomplice returned the missing parts. The police offered the parts to the victim, who declined to take them. The trial court held a restitution hearing where defendant's accomplice asserted that the missing parts could be sold for roughly half their retail value. The trial court ultimately concluded that the victim was required to mitigate his losses by accepting and reselling the parts, but that defendant failed to prove the value of the parts. The court concludes the trial court's ruling was not error. Once the state has proven the value of the motorcycle at the time it was stolen, it becomes defendant's burden to show that reasonable conduct on the victim's part would have avoided some of the loss and to establish the amount of damages that the victim reasonably could have avoided.

State v. Rock, 280 Or App 432 (2016) (Armstrong, P.J.)

Jury Instructions - Failure to Instruct on State's Burden to Disprove Defense is Plain Error

The trial court's failure to instruct the jury that the state was required to disprove beyond a reasonable doubt defendant's defense of property defense was plain error. The trial court's instruction, which omitted the burden of proof, did not inform the jury that the state was required to prove that the defense did not apply beyond a reasonable doubt, and therefore the trial court's instruction created an erroneous impression of law that prejudiced defendant.

State v. Gore, 280 Or App 624 (2016) (De Muniz, S.J.)

Post-Conviction Relief - State's Motion for Summary Affirmance Granted

The court grants the state's motion for summary affirmance of the denial of petitioner's post-conviction petition because petitioner failed to raise a substantial question of law as to both elements of inadequate and ineffective assistance of counsel. ORS 138.660 authorizes the court to summarily affirm a post-conviction judgment when the appeal does not present a substantial question of law. A substantial question of law in the post-conviction context has the same meaning as that phrase does in other contexts, viz, "a soundly based, firmly supported question capable of adjudication as to what the law is that is presented by the facts of the particular case at bar."

The post-conviction court concluded that petitioner failed to prove both elements of inadequate and ineffective assistance - deficient performance and prejudice. Petitioner did not challenge the post-conviction court's finding on prejudice. Where, as here, there are separate and independent bases supporting a trial court's decision, where each of those bases is a sufficient basis for affirmance, and where an appellant challenges only one of those bases, the court holds that the appeal as a whole does not present a substantial question of law.

Austin v. Premo, 280 Or App 481 (2016) (Egan, P.J.)

Judgments - DUII Conviction Fee - Per Curiam

The court reverses a $255 DUII conviction fee imposed in defendant's fourth-degree assault and second-degree criminal trespass case. The court writes specifically to note that Multnomah County used judgment forms that have the DUII conviction fee already typed into the form under the "Money Award" section. Accordingly, the DUII conviction fee is imposed unless it is affirmatively deleted, even in non-DUII cases. A judgment that carries a money award can be enforced by the state, and therefore even an erroneous form may carry consequences for a defendant.

State v. Williams, 280 Or App 631 (2016) (per curiam)

Mandatory State Amount - Per Curiam

The state concedes that it was error for the trial court to impose a $60 "Mandatory State Amount" and the court reverses that portion of the judgment.

State v. Lovingier, 280 Or App 629 (2016) (per curiam)