Oregon Appellate Ct - Aug. 19, 2015
by: Abassos, Alarson and Cmaloney • August 19, 2015 • no comments
Choice of Evils - Imminence - A Realistic Threat of Serious Harm is Not Imminent Enough If The Timing Is Vague
A specific, credible threat of serious injury that could be carried out at any time is not sufficiently imminent to assert the defense of choice of evils. The threat must be "immediate" in the sense of being "ready to take place" or "near at hand". Here, defendant was a prison inmate who had been told that his life was in serious danger from a skinhead gang who thought he was a snitch. Thus, he armed himself with a sharpened toothbrush, a prohibited weapon. But because there was no timing associated with the threat and no way to tell that violence might occur that day, much less was "about to happen", the threat was insufficiently imminent, even if absolutely true, to suffice for either choice of evils or self-defense. State v McPhail, 273 Or App 42 (2015).
Search and Seizure - Exploitation – Warrant Discovery Does Not Automatically Cure Police Misconduct under Article 1, section 9.
Extending the premise of State v. Bailey (a Fourth Amendment case) to Article 1, Section 9 of the Oregon Constitution, courts must now apply the five factor exploitation analysis under State v. Unger to determine whether the discovery and execution of an outstanding warrant attenuates the taint of prior unlawful police conduct. The court disavows State v. Snyder, 72 Or App 359, rev den, 299 Or 251 (1985) (holding that the discovery of a warrant purged the unlawful police conduct under Article 1, section 9). Here, the defendant was unlawfully stopped when the officer approached the defendant, inquired into the defendant’s identification, and then told the defendant to “hang on a second” when the defendant wanted to leave to go to the bathroom. The officer admitted that there was no reasonable suspicion of criminal activity. The officer then ran defendant’s name for a record’s check and discovered an outstanding warrant. Because the state failed to prove attenuation from the unlawful stop in accordance with the five factors, the discovery of the warrant did not cure the police misconduct. The five Unger factors are: (1) the temporal proximity between the unlawful police conduct and the discovery of the challenged evidence; (2) the presence of mitigating circumstances; (3) the presence of intervening circumstances; (4) the purpose and flagrancy of the unlawful police conduct; and (5) the nature, extent and severity of the constitutional violation.State v. Benning, 273 Or App 207 (2015)
__________________
It Is Not a Defense to a Crime by Omission That Defendant Was Compelled to Do Something
Where criminal liability is premised on a failure to act, the defendant must fail to perform a bodily movement that the defendant is “capable of performing.” In an animal neglect case, defendant sought to introduce evidence that due to her Obsessive Compulsive Personality Disorder (OCPD) she involuntarily acquired a large number of cats. The court holds that a compulsion to acquire cats does not tend to prove defendant was incapable of performing the bodily movements required to care for her cats. Thus, evidence of OCPD was not relevant to the underlying crime. Also, a person is still able to perform a voluntary act, even in the absence of alternative courses of action. Thus, defendant's proposed instruction was incorrect: “an act is voluntary if the actor has the ability to choose whether to commit an act that gives rise to criminal liability.” Her financial inability to provide adequate care for her cats would not determine, in and of itself, whether there was a voluntary act. State v. Hess, 273 Or App 26 (2015)
Merger - Animal Neglect - Each Animal is a Separate Victim
Oregon’s anti-merger statute, ORS 161.067(2), provides that “when the same conduct or criminal episode through violating only one statutory provision involves two or more victims, there are as many separately punishable offenses as there are victims.” Here, defendant argued that her 45 counts of animal neglect should be merged into a single conviction. She contended that her cats were her property and thus not victims. Accordingly, this left only one victim of her crimes – the public. The court rejected defendant’s argument and adopted the reasoning of State v. Nix, 355 Or 777, 782 (2014), vac’d, 356 Or 768 (2015). When the animal neglect statutes are violated, for purposes of the anti-merger statute, each animal neglected is considered a separate victim. State v Hess, 273 Or App 26 (2015)
