Case Reviews
From OCDLA Library of Defense
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Oregon Appellate Ct - Nov. 12, 2015
by: Abassos, Cmaloney and Alisa Larson-Xu • November 12, 2015 • no comments
- Re-Sentencing – The Presumption of Vindictiveness Only Applies When the Resentencing Is Greater Than the Original Sentence
- Robbery-II – Other Person Actually Present and Aiding the Theft Does Not Need to Be Aware of the Theft
- Vouching - The State Cannot Ask Defendant Whether the State’s Witnesses Were Lying
- Search & Seizure – Unlawful Extension - A Blow Torch and Association with Suspected Drug User Not RS of PCS
- Theft by Receiving Requires a Belief That the Property Is Stolen
- Impeachment – Failure to Appear II Is Admissible for Impeachment Under OEC 609(1)
- Sentencing – A Criminal History Score Cannot Be Reconstituted by Convictions Arising From the Same Criminal Episode
- Expert Testimony – An Expert May Testify About Personality Traits Independent of a Diagnosis of Personality Disorder
- Admission of a Party Opponent – The Declarant of a Statement Can Be Inferred From Circumstantial Evidence
- ECSA - Sexually Explicit Conduct – A Photo Can Be a "Lewd Exhibition" Even Though the Subject is Wearing a Shirt and Shorts*
- Contempt of Court – A Person Cannot Be Convicted of Contempt Because It Is Not a Crime
Oregon Appellate Ct - Nov. 4, 2015
by: Abassos, Cmaloney and Alisa Larson-Xu • November 9, 2015 • no comments
- Sentencing – Criminal Episodes - Multiple Agg Thefts Stemming From a Single False Claim of Benefits Is Probably a Single Criminal Episode
- Severance of Charges - A Challenge to Improper Joinder Does Not Require a Showing of Prejudice
- Search & Seizure - Search Incident to Arrest – A Strip Search is Unreasonable in Scope and Intensity
- Search & Seizure - Automobile Exception – Allows Search of a Passenger’s Backpack That Was In the Vehicle When PC Arose
- Preservation - Vouching - After a Party Properly Objects to Vouching No Further Objection Is Required to Preserve the Error for Appeal
- Dependency – Continued Alcohol Use For Single Father Sufficient to Endanger Welfare of Children
- PCR – A Judgment Doesn't Clearly State the Basis for the Court's Decision By Incorporating the Arguments From the State's Trial Memorandum
- PCR – When the PCR Court Does Not Provide a Process for Reviewing the Judgment, Objections to the Form of the Judgment Do Not Need to Be Preserved
- PCR – When the Court Provides a Process for the Parties to Object to the Judgment, Preservation Requirements Will Not Be Excused
- DNA Testing – Defendant Must Show How Testing Would Alter Jury’s Original Assessment of Reasonable Doubt
Oregon Appellate Ct - Oct. 28, 2015
by: Abassos, Alisa Larson-Xu and Cmaloney • November 1, 2015 • no comments
- Unlawful Use of a Weapon – "Use" Includes Using a Weapon to Threaten Immediate Harm
- Reasonable Suspicion – Parking on a Gravel Pull Out Off Of a Public Road Does Not Provide Reasonable Suspicion of Trespass
- Fines and Fees – Ability to Pay - Unlike Attorney Fees, a Compensatory Fine is Not Susceptible to Plain Error Review When There's No Evidence of Ability to Pay
- Expungement – Interests of Justice - Court Must Grant Expungement When Petitioner is Eligible and State Presents No Evidence
Oregon Appellate Ct - Oct. 21, 2015
by: Abassos, Cmaloney and Alisa Larson-Xu • October 21, 2015 • no comments
- Exigency - Urine Test for Drug DUII – Test is Whether Warrant Would Be Significantly Faster Than What Officer Actually Did
- Dependency - TPR – A Parent's Rights May Not Be Terminated for Failing to Appear Where There Was Insufficient Notice of Hearing
- Dependency Jurisdiction – A Wardship Can’t Continue If the Factual Bases for Jurisdiction Have Ceased to Exist
- Preservation - PCR – Dismissal For Failure to Prosecute
Oregon Appellate Ct - Oct. 14, 2015
by: Abassos, Alarson and Cmaloney • October 14, 2015 • no comments
- Encouraging Child Sex Abuse II - Sexually Suggestive Nature of Photos Sufficient to Prove Intent to Arouse
- Endangering the Welfare of a Minor – Evidence Must Be Presented that a Minor Was Present During the Unlawful Drug Activity
- Reasonable Suspicion - PCS - Defendant Nervous, On Probation, Furtive Movements, On Probation
- Probable Cause – PCS - Saying “Hide That” While Furtively Gesturing Is Not PC
- Attorney fees – The State Has the Burden to Prove Ability to Pay
- For Parole purposes, a Vulnerable Victim Need Only Be Vulnerable - The Vulnerability Need Not Have Been Exploited
- Preservation - Post-Conviction Relief - Requesting Remand for a New Trial Does Not Preserve the Remedy of a Delayed Direct Appeal
Oregon Supreme Ct - Oct. 8, 2015
by: Abassos • October 8, 2015 • no comments
- Free Exercise of Religion - The Constitution Allows For A Criminal Conviction On Less Than a Knowing Mental State, Even Where the Criminal Conduct Was Motivated By Religious Belief
- A Trial Court Has The Power To Issue a Sell Order for Involuntary Medication, Even Where The State Hospital Believes That the Person Doesn't Have a Disorder and Does Not Need To Be Medicated
Oregon Appellate Ct - Oct. 7, 2015
by: Abassos, Cmaloney and Alarson • October 7, 2015 • no comments
- Miranda Warnings May Be Required When Police Use Probable Cause to Confront a Suspect
- Financial Assessments Must Be Based in Statutory Authority
- Venue - Challenges to Venue Must Be Made in a Pretrial Motion, Not in a MJOA
Oregon Appellate Ct - Sept. 30, 2015
by: Abassos, Alarson and Cmaloney • September 30, 2015 • no comments
- Automobile exception – A Recently Parked Vehicle Is Not "Mobile", Even If The Police Had Information for a Non-Criminal Stop While the Vehicle Was Moving
- Character Evidence – Gang Imagery Pulled From the Internet Admissible for Motive Because State v Williams and 404(4)
- Kidnapping – Intent to Interfere With Liberty - Dragging Victim to A Porta-Potty For Sexual Assault Was Not Merely Incidental to Assault
- Interfering With a Peace Officer With Regard to Another Person – “Another Person” Means a Person, Not the Public
- Waiving a Jury - The State Does Not Have a Right to Present Its Case in The Manner of Its Choosing
- Eyewitness ID – Admissibility Per Lawson/James Requires 401 Relevance, 602 Personal Knowledge & 701 Foundation for Lay Opinion
- OEC 403 – A Defendant's In-Court Statement That "I Should Have Just Killed the Bitch" Is Relevant to Contradict a Defense of Mistaken Identification
- Stops – A Strong Odor of Marijuana Supports Reasonable Suspicion to Stop For Criminal Possession
- Search Incident to Arrest – An Intrusion Into a Person's Clothes Requires Something More Than a Reasonable Concern for Officer Safety
- Double Jeopardy – To Bar a Retrial, A Prosecutor Must Know Her Conduct Is Improper and Be At Least Indifferent to a Mistrial
- Restitution – The Court Can't Make Up a Number Out of Thin Air
- Sentencing – The 400% Rule Applies to the Determinate Portion of a Dangerous Offender Sentence
- Dependency Jurisdiction – Joint Custody and One Unfit Parent Does Not Alone Create a Basis for Jurisdiction
- Appellate Procedure - The Appellate Court May Use the Record to Interpret An Ambiguous Trial Court Order Susceptible to a Clerical Error
Oregon Appellate Ct - Sept. 23rd, 2015
by: Abassos, Alarson and Cmaloney • September 23, 2015 • no comments
- Search and Seizure - Attenuation - Bringing in A Second Officer Uninvolved in the Illegalities Does Not Itself Attenuate Evidence From a Prior Illegality
- Attorney Fees – State Must Present Evidence on Defendant’s Ability to Pay
- PCR - Escape Clause Requires Evidence to Support It
- No Appellate Review of Plain Error Where Defendant Could have Easily Remedied the Error by Telling the Court
Oregon Supreme Ct - Sept. 17, 2015
by: Abassos and Alarson • September 17, 2015 • no comments
Unlawful Possession of a Firearm
- (1) The Element "Within Any Vehicle" Applies Both to the Accused and to the Firearm, Both of Whom Must Have Been Within the Vehicle
- (2) A Person is Within a Vehicle if Any Portion of the Person’s Body Enters the Vehicle
Oregon Appellate Ct - Sept. 16, 2015
by: Abassos, Alarson and Cmaloney • September 16, 2015 • no comments
- Animal Neglect – Caring for and Exercising Power over Animals Constitutes “Control”
- Third-Degree Assault – “Extreme Indifference” Established by Intoxicated Driving Combined With Other Evidence of Defendant's Conduct
- Impossibility of Getting a Permit Is Irrelevant to Charge of Unlawful Water Pollution
- Confession - Compelling Circumstances - 3 hours of Polygraph Questions and Accusatory Non-Custodial Interrogation Is Compelling
- Confession -Voluntariness - No Threats, Promises or Inducements
- Restitution May Not Be Imposed In a Criminal Case Where It Results From Conduct During the Pendency of the Case
- Proportionality - A Life Sentence For a Third Sexual Touching of a Child is Not Constitutionally Disproportionate For a 71-Year-Old Defendant With 100 Uncharged Victims
- TPR – “Changed Circumstances” Is not a Valid Reason to Set Aside a TPR Judgment
Oregon Supreme Court - Sept. 11, 2015
by: Abassos • September 11, 2015 • no comments
- Jury Concurrence - Concurrence is Required Where Evidence of Multiple Occurrences of a Single Crime Involving the Same Parties is Nonspecific and Undifferentiated
Oregon Appellate Ct - Sept. 10, 2015
by: Abassos, Alarson and Cmaloney • September 10, 2015 • no comments
- Probable Cause – Driving 32MPH in a 35MPH Zone at Night Is Not PC of Driving Too Slow In Left Lane
- Other Bad Acts Evidence – 403 Balancing Required for 404(4) Evidence
- Probable Cause - Traffic Violation - Probable Cause of a Violation May Exist Even If the Violation Never Occurred
- Merger – A "Sufficient Pause" Occurs Only Through Defendant’s Conduct, Not the Conduct of Others
- Plain Error Review - The Error Assigned Must Not Reasonably Be In Dispute
- PCR - Preservation
Oregon Appellate Ct - Sept. 2, 2015
by: Abassos, Cmaloney and Alarson • September 3, 2015 • no comments
- Plea Agreements – A Judge Cannot Reject a Plea Agreement Based Solely On a Court Policy
- Jury Instructions – Unlawful Possession of Firearm – An Instruction That a ‘Firearm Carried in a Holster is Not Concealed’ is Required Where Defendant Presents Such Evidence
Oregon Appellate Ct - Aug. 26, 2015
by: Abassos, Alarson and Cmaloney • August 30, 2015 • no comments
- Sex Abuse - Sexual Contact - A Small Child Can Subjectively Believe a Body Part is Intimate Without Understanding the Concept of Intimacy
- Self-Defense – Defendant’s Admission of Injury to Another Not Required to Claim Self-Defense
- Search and Seizure – Walking Away from Property Does not Relinquish Property Interest
- Right to Remain Silent – An Officer Question That Prompts Invocation May be Admissible If (1) Relevant and (2) No Adverse Inference From Invocation
- Reasonable Suspicion – Citizen Informant – To Constitute RS, a Report Must Contain Evidence of A Crime
- Sex Abuse - Assuming Proper Training and Experience, An Officer May Testify Narrowly On The Reasons for Delayed Reporting
- Dependency - Permanency - No Evidence of Failure to Provide Services
- Preservation – Jury Instructions
- Preservation - Remand After Decision That the Error Was Plain
Oregon Appellate Ct - Aug. 19, 2015
by: Abassos, Alarson and Cmaloney • August 19, 2015 • no comments
- Search and Seizure - Exploitation – Warrant Discovery Does Not Automatically Cure Police Misconduct under Article 1, section 9
- Disorderly Conduct - A Smell Need Not Be Harmful To Be a Physically Offensive Condition
- Choice of Evils - Imminence - A Realistic Threat of Serious Harm is Not Imminent Enough If The Timing Is Vague
- Unlawful Sexual Penetration – Forcible Compulsion - Extended Violence Towards Victim Creates a Sufficient Causal Connection Between Force and Penetrative Act
- Kidnapping – Secret Confinement - Another Person’s Knowledge of Victim’s Location Is Only a Defense if the Person Would Reasonably Be Expected to Aid Victim
- Choice of Evils - Imminence - A Realistic Threat of Serious Harm is Not Imminent Enough If The Timing Is Vague
- Voluntary Act - Mental Illness Is Only Relevant to Voluntariness in a Crime of Omission If It Goes to Defendant's Capability of Performing the Required Acts
- Discovery of a Warrant - Attenuation - a Federal Bailey Analysis
- Probable Cause – Looking at One's Phone Is Not Probable Cause of Driving While Using A Mobile Device
- Merger - Animal Neglect - Each Animal is a Separate Victim
- PCR - Extrinsic Threats of Prosecution in Plea Negotiation Do Not Create an Involuntary Plea
- Post-Conviction DNA Testing - Petitioner Must Identify Specific Evidence To Be Tested
- TPR - Serious Detriment - A Parent's Condition Can Be Seriously Detrimental to a Child Even If No Harm Has Yet Been Suffered
- The Law of the Case Doctrine Bars Arguments on Issues Decided By an Appellate Court in the Same Litigation
- Preservation on Remand - Attenuation vs Exploitation
Oregon Appellate Ct - Aug. 12, 2015
by: Abassos and Sean McGuire • August 14, 2015 • no comments
- Assault III Does Not Require Direct Physical Contact Between Weapon And Victim
- Search and Seizure – Officers’ Request for Identification Does Not Constitute Seizure
- Search and Seizure – Removal Of Possible Bullet From Defendant’s Pocket Does Not Fall Within Officer-Safety Exception
- Search and Seizure – Passengers Are Not “Seized” When Asked to Get Out for a Consent Search of the Car
- Evidence – Victim’s Prior Attack On Defendant Was Relevant To Show Bias And Was Improperly Excluded
- A Count May Not Be Submitted to the Jury After the DA Concedes the Lack of Proof and the Court Grants an MJOA
- Severance – A Complete Lack of Cross-Admissible Evidence Does Not Require Severance
- Mandatory Fees & Assessments - ORS 153.663(1) Does Not Require The Imposition Of A Separate $60 Fine
- Attorney Fees - Ability to Pay - There Must Be Evidence in the Record Indicating Defendant Is or May Be Able to Pay
- Appellate Preservation - Denial of Time Reduction Programming Requires an Objection
- Appellate Jurisdiction - DNA Testing - No Appeal Unless DNA Testing is Limited
Oregon Supreme Ct - August 6, 2015
by: Sean McGuire and Abassos • August 6, 2015 • no comments
- Probation Revocation - Sentences Imposed Following Probation Revocation May Be Consecutive, Notwithstanding Sentencing Guidelines
Oregon Supreme Ct - July 30, 2015
by: Sean McGuire and Abassos • July 30, 2015 • no comments
- PCR - A Claim Raised, Litigated, and Lost in a Post-Conviction Petition Cannot Be Raised a Second Time, Even in Light of New Case Law.
Oregon Appellate Ct - July 29, 2015
by: Sean McGuire and Abassos • July 29, 2015 • no comments
- Statements Obtained Without a Valid Miranda Warning and Waiver Can Not Be Used To Impeach - State v Mills Overruled
