Oregon Appellate Ct - May 20, 2015
by: Abassos and Kit Taylor • May 20, 2015 • no comments
A Person Has a Possessory Interest in an Mailed Package In Transit
"For an in-transit USPS express mail package, the police may not detain such a package without probable cause and a warrant or without the existence of one of the carefully delineated exceptions to the warrant requirement."
Attorney Fees - The Court Must Determine Ability to Pay
Before imposing attorney fees, a judge must determine whether the defendant has the ability to pay such fees. Here, the judge neither engaged in a colloquy with the defendant nor put facts on the record to support ability to pay. Thus, it was a plain error. The court decides to correct the error because defendant received prison time (as opposed to probation) and the record contained no evidence of another source of income or "that he has or will have the capacity to pay the fees." In contrast, the court recently chose not to correct the same error in State v Baco because the defendant received probation (and therefore was not prevented from working) and the defendant agreed to attorney fees on another case being sentenced at the same time. State v Hunt, 271 Or App 347 (2015).
Sex Abuse - OEC 412 - Evidence of Prior Consent is Admissible When the State Opens the Door By Bringing in Prior Sexual Contacts
The state opens the door to cross-examination that would otherwise be barred under OEC 412 when it elicits testimony on direct of prior sexual contacts between defendant and the complainant. Here, defense counsel sought to ask complainant about his relationship with defendant to support “defendant’s position that [complainant] had consented in fact to the charged contacts, as part of an ongoing voluntary relationship, and fabricated his accusations only after that “relationship broke apart.” The state argued on appeal that the only point of the line of defense questions at issue was to elicit a 412-barred inference that there was prior consensual sex, therefore the current incident was consensual. The court finds that complainant’s testimony under direct examination about his prior sexual relationship with defendant opened the door to such an inference: "The state’s invocation of OEC 412 in this posture is, respectfully, ironic". State v Cervantes, 271 Or App 234 (2015).
OEC 801(4)(a)(B) - Prior Consistent Statements to Rebut a Motive to Fabricate Must Have Been Made Prior to When the Motive Existed
Prior witness statements are not admissible at trial as “prior consistent statements” under OEC 801(4)(a)(B) to rebut a motive to fabricate when the prior statements were made at a time when a motive to fabricate already existed. Here, the defense in a sex abuse case was that the complainant made up the charges to get an immigration visa. The state, in response wanted to bring in a slew of consistent statements the complainant made after the immigration motive existed, arguing that "the prior consistent statements did not come “after the purported motive to fabricate arose,” because defendant presented the motive as “present and ongoing[.]. . . Consequently, A’s motive to lie, at least for immigration purposes, had not yet terminated. . .The state’s response is puzzling—and, with respect, may be a non sequitur." Because the prior testimony was made when there was already a motive for complainant to fabricate her story, the prior statements were not permissible to rebut defendant’s “motive to fabricate” assertion. State v Bautista, 271 Or App 247 (2015).
