Case Reviews
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Oregon Supreme Court 12-30-11
by: Abassos • December 29, 2011 • no comments
Read the full article for details about the following new cases:
- Felon In Possession - No Mental State for Felony Status
No mental state is required for the element of being a felon in the crime of felon in possession of a firearm. In this case, defendant was told by the judge that his felony would be reduced to a misdemeanor as soon as he successfully completed probation. Defendant successfully completed probation so he assumed that his felony was a misdemeanor. The Supreme Court rules today that his mistaken belief is not a defense. State v. Rainoldi
That's the ruling to take away from today's case but it's worth going through the analysis because figuring out what elements have mental states is a notoriously confusing endeavor. The analysis starts with ORS 161.095(2), which says that, except as provided in ORS 161.105, the state is required to prove a mental state for "each material element of the offense that necessarily requires a culpable mental state". This circular sentence has been the subject of much ridicule over the years. But, for today's case, it doesn't matter because felon in possession falls into the ORS 161.095(2) exception for crimes outside the criminal code. Felon in possession isn't part of the criminal code, despite the fact that it can be found in your blue statute book labeled "Criminal Code", because ORS 161.005 sets forth a specific list of statutes that comprise what"may be cited as the Oregon Criminal Code of 1971?. Felon in possession isn't in that list.
The mental state analysis for non-criminal code crimes is as follows:
- Figure out whether the legislature clearly indicated its intent to dispense with a mental state for the element in question. If yes, then that's the end of the story.
- If such clarity is lacking, then go back to ORS 161.095(2), the circular, ridiculed statute above.
The analysis for figuring out whether the legislature clearly intended to dispense with a mental state is as follows:
- Look at the text of the statute. For felon in possession, the statute is silent as to mental states. Silence is not dispositive but it cuts against there being a mental state.
- Does the element address the defendant's conduct or does it address either the defendant's status or an attendant circumstance. For FIP, the defendant's status as a felon again cuts against there being a mental state.
- Does the legislative history clarify the situation? For FIP, there are no statements from Oregon legislators. But there is a significant historical knowledge from the nationwide movement toward these laws as well as the California and national laws on which Oregon's was based. The historical documents and statements indicate that the clear purpose was to deny felons firearms because felons pose a risk to the public. That risk exists regardless of whether the felon knows of his or her felon status. Thus, again, this prong cuts against there being a mental state element.
- Would requiring a mental state frustrate the purpose of the statute? Requiring a mental state for felonious status would frustrate the purpose of the statute because it's unrelated to the risk, creating more of a burden to the state than is appropriate for the purpose of the crime.
So there you go. All four prongs cut against the defense in this case. Thus, not surprisingly, the court finds that the legislature clearly intended to dispense with a mental state for the element of felony status. See Mental States and Elements for more analysis of today's case.
Oregon Appellate Court 12-29-11
by: Abassos • December 28, 2011 • no comments
Read the full article for details about the following new cases:
- Criminal Episodes - Hit and Run
- Corroboration of Confession - Restraining Order Violation
- Tort Liability - DOC - Sentence Computation
- Civil Commitment - Harms Way
- Sex Abuse - Southard - "Concerning for sexual abuse"
- Stop - Free to Leave
- Termination of Parental Rights - Detriment to Children
- Speedy Trial - 17 Month Delay
- Automobile Exception
- Administrative Searches - Courthouse
- Restitution - Evidence of Economic Damages
- FAPA Restraining Order Violation - Confrontation - Proof of Service
Oregon Appellate Court 12-21-11
by: Abassos • December 20, 2011 • no comments
Read the full article for details about the following new cases:
- Assault III - Aided by Another
- Oregon State Hospital - Involuntary Medication Hearings - Less Intrusive Options
- Habeas - Right Not to Have Attorney Mail Opened by Prison Officials
- Assault II - Dangerous Weapon
- Civil Commitment - Failure to Read Rights
- Restitution - Remand for Resentencing - State v. McLaughlin
- Attorney-Client Privilege - Testifying Does Not Waive the Privilege - DUII
Oregon Appellate Court 12-14-11
by: Abassos • December 13, 2011 • no comments
Read the full article for details about the following new cases:
- Consent - Voluntariness - When Obtained After Implied Consent Warnings (Machuca)
- Evidence Code - Bias
- Restitution - Evidence to Support Judgment
- Voluntary Intoxication - Recklessness - Due Process
- Amended Judgment - Correcting a Factual Error
- Venue - Failure to Register as a Sex Offender
- Stop - Unavoidable and Routine Lulls
- Probation Violation - Waiver of Counsel
- PCR - Failure to Investigate
- Restraining Order - "Interfering"
- PCR - Ordering Defendant to Proceed Pro Se
- Bench Trial - Right to Closing Argument
- Evidence Code - Bias - Prior Disputes
Oregon Appellate Court 12-07-11
by: Abassos • December 6, 2011 • no comments
Read the full article for details about the following new cases:
- Burglary I - Aid and Abet
- Confrontation Clause - Lab Report - Notice and Demand
- Rape I - Forcible Compulsion
- Probation Violation - Extension of Probation
- Probation Conditions - Forfeiture
- Requesting Consent to Search is Not Interrogation
- Dependency - Jurisdiction
Oregon Appellate Court 11-23-11
by: Abassos • November 22, 2011 • no comments
Read the full article for details about the following new cases:
- Warm Springs Tribal Code - Hot Pursuit Provision
- Southard - Treatment Recommendations
- Arrest/PC - UUMV
- DMV Appeal - Agency Orders
- Parole Board - Severe Emotional Disturbance
Oregon Appellate Court 11-16-11
by: Abassos • November 15, 2011 • no comments
Read the full article for details about the following new cases:
- There's No Such Thing as Merger for Sentencing
- Repeat Property Offender - A Court-Martial is not a Prior Conviction
Oregon Supreme Court 11-10-11
by: Abassos • November 9, 2011 • no comments
Read the full article for details about the following new cases:
- Lesser Included Instructions - Crimes vs. Violations
- Speedy Trial - Consent - Reasonable Delay
Oregon Appellate Court 11-09-11
by: Abassos • November 8, 2011 • no comments
Read the full article for details about the following new cases:
- Preservation - Prior Bad Acts
- Search Warrant - Stale Facts
- Attempted Rape III - Intent to Have Intercourse
- Attorney Fees - Sentencing on Remand
- Delinquency - School Search - Consent
- UUV - Passenger - Probable Cause for Arrest
Oregon Appellate Court 11-02-11
by: Abassos • November 1, 2011 • no comments
Read the full article for details about the following new cases:
- DUII - Sleep Driving
- Vertical Proportionality - Misdemeanor vs Felony Probation Revocation
- Dependency - Change in Permanency Plan to Guardianship
- Appeal - Supplemental Judgment
- Restitution - Good Cause to Extend Past 90 Days
Oregon Appellate Court 10-26-11
by: Abassos • October 25, 2011 • no comments
Read the full article for details about the following new cases:
- Probable Cause - Attempted DUII
- Recording a Police Officer
- Equal Privileges - Aggregation of Thefts
- Harmless Error - Southard
- Compelling Circumstances/Custodial Interrogation
- PCR - Inadequate Assistance of Counsel
- Plain Error - OEC 513(2)
- Dependency - Change in Permanency Plan to Adoption
- Dependency - Jurisdiction
- Maximum Determinate Sentence
Oregon Appellate Court 10-19-11
by: Abassos • October 18, 2011 • no comments
Read the full article for details about the following new cases:
- Theft by Deception - Intent to Defraud
- Criminal Trespass II - Invitation to Enter
- Appeals - Appellate Jurisdiction
- Sex Cases - Prior False Accusations
- Punitive Contempt of Court - "Willfully"
- Appellate Discretion - "Strategic Purpose"
- Reasonable Suspicion - DUII
- Dependency - Continuation of Jurisdiction Based on Original Jurisdictional Judgment
- Dependency - Change of Permanency Plan to Adoption
Oregon Appellate Court 10-12-11
by: Abassos • October 11, 2011 • no comments
Read the full article for details about the following new cases:
- Southard - Plain Error - Discretion to Correct
- Dependency - Child's Statements Admissible as Party-Opponent
Oregon Supreme Court 10-06-11
by: Abassos • October 5, 2011 • no comments
Read the full article for details about the following new cases:
- Warrantless Searches - Automobile Exception
The Oregon Supreme Court today finds that the automobile exception does not permit a warrantless search of an immobile, parked and unoccupied vehicle. State v. Kurokawa-Lasciak
The automobile exception requires that: (1) the automobile is mobile at the time it's stopped by the police; and (2) the police have probable cause to search the automobile. The appellate court, in this case, believed that a car is mobile if it is operable. Since in this case, defendant's van was operable, the appellate court reasoned that it was mobile. Despite the fact that officers never saw defendant driving it, stopped defendant when he was 30 feet away from the van and developed probable cause when defendant was in a casino.
The Supreme Court reffirms past caselaw in finding that mobile means moving, not operable. Where the vehicle is parked and unoccupied at the time it is first encountered, the vehicle is not mobile and the automobile exception does not apply. Even if the defendant is in the general vicinity. State v. Kurokawa-Lasciak
Oregon Appellate Court 10-05-11
by: Abassos • October 4, 2011 • no comments
Read the full article for details about the following new cases:
- Equal Privileges - Prosecutorial Charging Decisions
- Merger - Possession of Multiple Firearms
Oregon Appellate Court 09-28-11
by: Abassos • September 27, 2011 • no comments
Read the full article for details about the following new cases:
- Hearsay - Forfeiture by Wrongdoing
- Expert Testimony - Cross
- Relevance - The Reid Technique
- Identity Theft - Merger - Separate Victims
Oregon Supreme Court 09-22-11
by: Abassos • September 21, 2011 • no comments
Read the full article for details about the following new cases:
- Lay Opinion Testimony - Child Abuse
- Victim's Prior Abuse - Shaken Baby
- Appellate Jurisdiction - Due Process - Guilty Plea
Oregon Appellate Court 09-21-11
by: Abassos • September 20, 2011 • no comments
Read the full article for details about the following new cases:
- Expert Qualifications - Police Officers
- Impeachment - Witness on Probation
- Appeals - Supplemental Judgments
- Diagnosis of Sex Abuse (Southard) - Plain Error
- Criminal Episodes - Increasing Criminal History Score
- Civil Commitment - Basic Needs
- Stop - Free to Leave - Seizure
- Compensatory Fine - Plain Error
- DUII Breath Test - Exigent Circumstances - Machucha
Oregon Supreme Court 09-09-11
by: Abassos • September 8, 2011 • no comments
Read the full article for details about the following new cases:
- Stalking Order Violations - Free Speech
The Oregon Supreme Court today reverses the appellate court, finding that Article I, Section 8 does not provide a free speech defense when the speech is prohibited by a Stalking Protective Order:
We hold that, because defendant's communications were already prohibited by the stalking protective order, the state was not required by Article I, section 8, to prove under ORS 163.750 that defendant had communicated an unequivocal threat to the victim.
To be fair, it's not that there's nothing at the intersection of free speech and stalking order violations, it's just that ORS 163.750 already contains sufficient protections. The stalking order violation statute requires both prohibited communication and, when speech is involved, that "defendant's conduct created a reasonable apprehension regarding the personal safety of the victim. " The appellate court found that the additional free speech protections for the issuance of Stalking Orders (State v. Rangel) also apply to Stalking Order Violations.
The Supreme Court rejects the notion that a stalking order violation requires the exact same protections as the issuance of the initial stalking order. The Court points out that defendant conceded that the Stalking Order itself was Constitutional and lawful and that it could have formed the basis for a contempt charge. But, defendant argued, it could not form the basis for a statutory Stalking Order Violation. The court rejects defendant's attempt to challenge the violation without challenging the order:
The restriction on defendant's speech occurred ( if at all) when the trial court entered a stalking protective order that barred defendant from communicating with the victim in any way. As explained above, ORS 163.750 does not reach any speech not otherwise prohibited by the concededly lawful order. Therefore, a defendant who seeks to challenge a conviction under ORS 163.750 on free speech grounds first must successfully attack the underlying stalking protective order.
On the upside this ruling leaves open the possibility that a stalking protective order could be overbroad, violating free speech. On the downside, we (attorneys) don't usually get the case until there's an alleged violation, at which point a collateral attack is more difficult.
J. Kistler writes separately to add that the subsection of the stalking order violation statute dealing with communication (ORS 163.750(1)(c) is content neutral because it doesn't distinguish between communicative contacts based on whether it conveys a particular message or advocates a specific viewpoint. Instead, it distinguishes among prohibited contacts based on whether they created a reasonable apprehension regarding the personal safety of the victim. That, in J. Kistler's view, is a permissible distinction. State v. Ryan
Oregon Appellate Court 09-08-11
by: Abassos • September 7, 2011 • no comments
Read the full article for details about the following new cases:
- Stop - Free to Leave - Show of Authority
- Stipulated Agreements
- FAPA Restraining Order - Abuse - Fear of Imminent Bodily Injury
- FAPA Restraining Order - Abuse - Fear of Imminent Bodily Injury
- DUII Conviction Fee (the 2009 version)
- Warrantless Breath Test - Machuca
- Stalking Protective Order - Unequivocal Threat
- Criminal Mistreatment - Withholding of Care
- Civil Commitment - Basic Needs
- Search - Inventory
- Seizure - Exigency - DUII
