Case Reviews
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Oregon Supreme Court - Feb. 13, 2014
by: Abassos and Alex Collins • February 13, 2014 • no comments
Forfeiture by wrongdoing (OEC 803(3)(g))
- Intent to Prevent Witness Testimony Need Not be Primary (or only) Intent
- Defendant Need Not Be Acting in Contemplation of an Ongoing Matter
- No additional inquiry into reliability is required
Oregon Appellate Court - Feb. 12, 2014
by: Abassos • February 12, 2014 • no comments
- Retrograde Extrapolation is Scientific Evidence'
- Using a Child as Display in Sexually Explicit Conduct - A Photo of A Sexual Act with a Child Present is Enough to Survive MJOA
- Crim. Mischief III is Not a Lesser-Included of Crim. Mis. II
- Unauthorized Departure is Not a Lesser-Included of Escape
- PCR - A Constitutionally Adequate Counsel Would Request a No Character Evidence Instruction in a Multi-Victim Rape Trial
- Burglary - A Room Is "Open to the Public" if it Is Reasonable to Believe No Permission is Required to Enter
- DUII - Admissibility of Verbal Field Sobriety Tests Despite Admonishment
- AIP – Bad Court Behavior and Lengthy Criminal History Are Enough to Deny Eligibility for AIP
Oregon Supreme Court - Jan. 30, 2013
by: Abassos • January 30, 2014 • no comments
- Harmless Error - Lesser Included Offenses
Defendant was charged with possession of a restricted weapon by an inmate for having a broken spoon in his cell. The trial court rejected defendant's requested instruction for attempted possession of a restricted weapon by an inmate. The "erroneously omitted instruction would have told the jurors that there was a legal distinction between taking a substantial step toward making the spoon into a weapon and completing the task. In other words, the definition of the term "weapon" told the jury what a weapon is, but it did not tell the jury that the spoon was not a weapon if it was an object that defendant was still in the process of making into a weapon." Therefore, the error was not harmless.
→ read the full summaries...Oregon Appellate Ct - Jan. 29, 2014
by: Abassos, Cmaloney, Alarson and Alex Collins • January 29, 2014 • no comments
- Attorney fees cannot be imposed when the record is silent regarding defendant’s ability to pay
- Consent to Search Can Be Invalidated by a Miranda Violation
- Denial of Corroboration Instruction for Accomplice-Witness Constitutes Error
- Recklessness - Insufficient Evidence Without a False Transcription
- 90 Day Speedy Trial Request: “typical delay inherent in scheduling trials” is not good cause
Oregon Appellate Court - Jan 22, 2014
by: Abassos • January 22, 2014 • no comments
- DUII – Implied Consent Warnings Are Not Coercive
- Emergency Aid – Implied Consent to Enter a Home to Render Aid Doesn't Include Implied Consent to Find the Owner
- Robbery II - Escape Hatch Allowed if Victim's Subjective Fear Was Unreasonable
- Restitution Awards – Post-judgment Interest Unlawful In Restitution Awards
Oregon Appellate Court - Jan. 2, 2014
by: Abassos and Aurelia Erickson • January 8, 2014 • no comments
- UPPA – Police Lacked PC for UPPA Where Conduct was Ambiguous
- Probation Revocation – Consecutive Sentences Must Be Based on Multiple Violations
- Dependency - A Guardianship Is a “Foster Care Placement” for Purposes of ICWA
- Termination of Parental Rights – The Court May Not Default a Parent Who Is Present In Court
- Merger - Rape I and Sex Abuse II Merge
Oregon Supreme Ct - Dec 27, 2013
by: Abassos • December 27, 2013 • no comments
A Party May Obtain Appellate Review Without First Excepting in Trial Court
A party may obtain appellate review of a jury instruction (or absence of one) without having to except in trial court. The appellate court is not precluded “from reviewing a claim of error pursuant to the court’s traditional plain error doctrine.” Here, defendant objected properly but did not except properly. The Court holds that the issue was preserved and the defendant's claim that an improper jury instruction was given is entitled to appellate review. Reversed and Remanded. State v. Vanornum, 354 Or 614 (December 2013).
Jurors Must Concur on Whether Defendant Was the Principal or Aided and Abetted the Principal
Upon request, a concurrence instruction must be given which states that 10 jurors must agree as to whether defendant was the principal or aided and abetted another in committing the crime. An exception to this requirement is cases of third-degree assault which “can be prove[n] either by directly inflicting an injury or by engaging in acts extensively intertwined with inflicting that injury.” A principal in the first degree and a principal in the second degree are interchangeable for Assault III. Affirmed. State v. Phillips, 354 Or 598 (December 2013).
OR Appellate Ct - Dec. 26, 2013
by: Abassos • December 26, 2013 • no comments
- Former Fugitive Doctrine - Ten Year Absence
- Murder by Abuse - A Person Can Be Dependent Based on Transitory Injuries
- Unlawful Possession of a Firearm - A Campsite Can Be a Place of Residence
- FSTs Are Presumptively Justified By the Exigency of an Evanescent Substance
- Sex Abuse I - Knowingly Applies to "Forcible Compulsion"
- Right to Counsel Pre-Breath Test - Unequivocal Refusal of a Reasonable Opportunity
- Merger - There Is No "Merger For Sentencing"
- ORS 419B.040(1)'s Child Abuse Exception to the Privilege Rules Does Not Apply to Statements Diminishing Complainant's Credibility
- Solicitation to Commit a Crime Can Be Enough For an Attempt to Commit the Crime
- A Dangerous Offender Sentence Requires Both an Indeterminate and a Determinate Term of Prison
- "Highly Concerning for Sexual Abuse" is, in the Absence of Physical Evidence, an Inadmissible Comment on Complainant's Credibility
- Pretrial Detainees Retain Privacy Rights in Their Possessions
- Dependency - Impermissible Inferences - What a Person Believes is Not the Same as What He or She Is Likely To Do
Oregon Appellate Ct - Dec. 18, 2013
by: Abassos • December 18, 2013 • no comments
- 90 Day Inmate Speedy Trial - Once There's a Continuance the 90-Day Period No Longer Applies
- Conditional Discharge - Must Be Granted if No PV Alleged Before End of Probation
- A Jury Instruction May Not Expand Factual Allegations
- Contempt - Failure to Do Community Service
- Criminal Mischief - Wild Animals are the Property of the State
- Probation Violations - The Right to Cross-Examine Urinalysis Technician
- OMMA - Hashish is Usable Marijuana
- A Stipulated Facts Trial Requires a Written Jury Waiver
- TPR - Untreated Schizophrenia as the Basis for Termination of Parental Rights
Oregon Supreme Ct, Dec. 12, 2013
by: Abassos • December 12, 2013 • no comments
- Burglary - Jury Concurrence is Not Required for Entering vs Remaining
- DUII - Consent to Blood/ Breath Test is Not Involuntary Merely Because of Statutory Implied Consent Warnings.
Oregon Appellate Ct - Dec. 11, 2013
by: Abassos • December 11, 2013 • no comments
- Delinquency - Court May Not Order Youth to Pay for Psych Eval
Oregon Appellate Court - Nov 27, 2013
by: Abassos • November 30, 2013 • no comments
- Consent to Search Expires When the Search is Terminated
- Vouching - Detective's Training and Experience in Determining Credibility
- Sentencing Proportionality is For Individual, Not Aggregate, Sentences
- DOC's Porn Ban Okay
- Knowledge of a Crime Not Enough for Accomplice Liability
- Dependency - Right to Testify at a Hearing on a Change to Adoption
- Dependency - TPR - Anger Issues
Oregon Supreme Court, Nov 21, 2013
by: Abassos • November 21, 2013 • no comments
A mere request for identification made by an officer in the course of an otherwise lawful police-citizen encounter does not, in and of itself, result in a seizure. Thus:
- It was not a stop where the officer took defendant's identification for 15 seconds in a porn store where defendant was underage. At worst, the court says, defendant would have believed that he would be kicked out of the store, the opposite of a seizure. As to the temporary taking of defendant's license, the court says: "We are hard pressed to see how holding a person's license for no more than 15 seconds, pursuant to the person's voluntary production of that license could result in a significant restriction of a person's liberty on that basis alone." State v Backstrand (11/21/2013)
- It was not a stop where an officer took defendant's identification for about 30 seconds to write down the information and then go check it for probation and warrants. It was also not a stop when the officer returned from the check, advised defendant he was not on probation and had no warrants, and asked for consent to search. And, finally, it was not a stop when defendant consented to a search, acted like he was cooperating with a search but attempted to conceal a baggie of meth which another officer saw. While in Hall, immediate questioning created a seizure from a mere encounter "no similar alchemy occurred here", because "considered in combination [the ID check, consent request and search] were simply acts that occurred sequentially." State v Highley (11/21/2013)
- It was not a stop where defendant walked up to the door of a drug house that was being searched and 3 officers followed defendant and his girlfriend back to his car to "find out who defendant and the driver were, what interest they might have had with what the police were doing there, or maybe they knew the individual that lived there." One officer was in back of the car (blocking any exit), one officer was on the drivers side and one was on the passenger side. When officers asked defendant to step out of the vehicle, a stop occurred. But at that point the officers had reasonable suspicion to believe defendant was lying to him about his name. State v Anderson (11/21/2013)
Oregon Appellate Court, Nov 20, 2013
by: Abassos • November 20, 2013 • no comments
- Where a Warrant Search Follows a Warrantless Search, the State Must Show Inevitable Discovery, Independent Source or Attenuation
- Mistrial - Prosecutorial Misconduct - Trial Disclosure of Invoked Right to Remain Silent
- Right to Counsel - Officer Must Clarify Suspect's Intent in Response to an Equivocal Invocation
- The Witness in a Witness Tampering Case is a Victim
- Warrant Notification Through LEDS or NCIC Requires Arrest (And Therefore Purges the Taint of an Illegal Stop)
- Ag Theft - Stacking vs Valid Inferences
- Preservation - Drug Dog Reliability
Oregon Appellate Court - Nov 14, 2013
by: Abassos • November 15, 2013 • no comments
- Stops - A Windshield Crack is Not a Violation Unless There's a Probable Risk of Harm
- Burglary - Can Be With Intent to Avoid Capture
- UUV - Defendant's Belief in an Honest Claim of Right is a Defense
- Criminal Episodes - Separate Victims Separated By a Short Period of Time Can Be One Episode
- Restitution - Retail Price Is A Good Measure for a Store Theft
- Restitution - Court Limited By Charged Conduct/Admissions
- Venue - Pre-Mills Venue Challenges Should Be Remanded
- Vouching - Sex Abuse - Treatment Recommendations
Oregon Appellate Court - Nov. 6, 2013
by: Abassos • November 6, 2013 • one comment
- Police Have an Obligation to Unambiguously End Traffic Stops
Oregon Appellate Court - October 30, 2013
by: Abassos and Alarson • October 30, 2013 • no comments
- Stalking - Communicative Contact Must Be an Unequivocal Threat
- “Multiple Victims” Aggravating Factor Limited to Victims of the Offense, Not the Criminal Conduct
- Merger - Felon in Possession of a Firearm With a Firearm and UUW With a Firearm
- Miranda - Compelling Circumstances - 12 year Old Defendant
- Severance - Defendant's Pretrial Showing of Prejudice Is All That Matters, Even Where the Trial is Actually Prejudicial
- Merger - Counts with Alternative Theories Merge into One Conviction
- Speedy Trial - Misdemeanor - 16 Month Delay Attributable to the State
Oregon Appellate Court - Oct 23, 2013
by: Alarson, Jwithem and Abassos • October 23, 2013 • no comments
- Resisting Arrest - State Must Prove Knowledge of Arrest
- Substantial Electricity Levels and Officer's Training Sufficient to Corroborate Anonymous Informant of Marijuana Grow
- Prosecutorial Misconduct - Comments That May Raise Racial, Ethnic, or Religious Bias Require Either a Curative Instruction or Mistrial
- Evidence of the Market Value of a Multi-Part Object Can Be Sufficient to Withstand MJOA for Theft of a Constituent Part
- The Sex Abuse II Proportionality Issue is Not Demurrable - The Sentence Must Be Challenged
- Dependency - Permanency - Sufficient Progress - Addiction Issues
- Dependency - Jurisdiction - Lack of Recent Contact
Oregon Supreme Court - October 17, 2013
by: Alex Flood and Abassos • October 18, 2013 • no comments
- Venue is No Longer an Element of a Crime. It Is a Jurisdictional Issue.
- "Same Criminal Episode" Can Encompass Dissimilar Acts With a Single Objective
Oregon Appellate Court - October 16, 2013
by: Ashreve, Alarson, Cmaloney and Abassos • October 17, 2013 • no comments
- Interference With a Report - "Interference" requires an effect on the making of a report
- Escape II – No escape occurs when a temporarily released inmate walks away from an authorized program
- Error to Unconditionally Admit Prior Act Evidence to Prove Intent When Defense is that Actus Reus Never Occurred
