Oregon Appellate Ct - July 9, 2014
by: Abassos, Lisa Fitzgerald, Evan Ottaviani, Katie Watson and Tim OConnor • July 9, 2014 • no comments
Evan
Evidence asserting defendant was not at the location during the time of alleged offense is not alibi evidence under ORS 135.445.
Evidence that asserts that the defendant was not at the place where the offense occurred is not alibi evidence and may not be excluded for failure to provide required notice under ORS 135.445. Here, instead of asserting that defendant was in another, particular place at the time of the alleged offense, the grandmother's and aunt’s testimony was meant to establish that defendant had left the house before the alleged sexual abuse occurred. Exclusion of this testimony was harmless error because the grandmother’s account lacked credibility and the aunt’s testimony did not necessarily conflict with the victim’s. Affirmed. State v. Paniagua-Montes, 264 Or App ___ (2014).
AIPs - “Substantial and Compelling Reasons” For Denial No Longer Necessary
“Substantial and compelling reasons” under ORS 137.750 are not necessary to deny defendant eligibility for Alternative Incarceration Programs under ORS 137.751. Here, defendant violated the terms of his probation when he faked a heart attack to get out of a UA, failed other UAs and resisted arrest. Under ORS 137.751, defendant was not eligible for an AIP regardless of whether there were substantial and compelling reasons for this ineligibility. Affirmed. State v. Cross, 264 Or App ___ (2014).
Lisa
Alternative Incarceration Program- Defendant Must Show Eligibility Requirements Are Met
To be eligible for AIP, the defendant must show that the eligibility requirements in ORS 137.751(1) are met. In this case the trial court mistakenly applied ORS 137.750(1)—an outdated framework which authorized AIP unless the court had “substantial and compelling reasons” to deny eligibility. Under the new statutory framework, ORS 137.751(1), the court is no longer required to find “substantial and compelling reasons” to deny eligibility. Although the trial court used the wrong statutory framework in this case, the court affirmed the denial of AIP, holding that the defendant, in failing to notify the court of the new framework, was “actively instrumental” in the error. Affirmed. State v Goodenough, 264 Or App ___ (2014).
Katie
Testimony is considered prejudicial against the defendant when it creates an inference of guilt that tends to negate the defendant’s defense.
Testimony is considered prejudicial against the defendant when it creates an inference of guilt that tends to negate the defendant’s defense. Allowing prejudicial testimony violates the defendant’s right against self-incrimination under Article I, section 12 of the Oregon Constitution. Here, the defendant refused to allow an officer inspect the bills in his pocket to see if they were counterfeit, and the officer testified that a “normal” person would have permitted the officer to conduct the inspection. The court held that evidence of the defendant’s constitutionally permitted refusal to submit to an inspection was inadmissible, and admitting it would likely have created an inference of guilt that went to the heart of his defense that he did not know that the currency was counterfeit. Reversed and remanded. State v. Mendoza, 264 Or App ___ (2014).
Tim
Due Process-Probation-Failure to Pay Fines and Restitution-There is no violation of Due Process when an indigent defendant has his probation extended due to a failure to pay fines and restitution
The SCOTUS case Bearden v. Georgia, establishes that it is a violation of the Due Process Clause for a state to automatically revoke an indigent defendant’s probation for a failure to pay fines and restitution without determining that the defendant did not make bona fide efforts to pay or the adequacy of alternative forms of punishment. Bearden does not hold that the Due Process Clause prohibits the imposition of non-incarcerative sanctions for failing to pay fines or restitution. Here, an indigent defendant was sentenced to 12 months additional probation at a show cause hearing for failure to pay fines and restitution as per his probation. He appealed claiming that, under Bearden, the state had the burden to prove that he could have made payments prior to imposing any additional sentence for a failure to pay. The court did not address this claim because they held that Bearden only applied to cases where defendants are incarcerated for an inability to pay and thus Bearden was inapplicable here. The defendant articulated no basis for his due process claim other than Bearden. Affirmed. State v. Bell, 264 Or App ___ (2014).
