Oregon Appellate Ct - Nov. 12, 2015
by: Abassos, Cmaloney and Alisa Larson-Xu • November 12, 2015 • no comments
Re-Sentencing –Presumption of Vindictiveness Only Applies to Sentences Greater than Original
The presumption of vindictiveness applies only in a case where the trial court resentenced the defendant to a longer or otherwise more severe total sentence. Here, defendant was resentenced to a term of incarceration that was about half the original sentence (from 170 months to 87 months). However, on one count, the defendant received a prison term of 12 months where originally he was only sentenced to probation. As the presumption of vindictiveness did not apply, and the defendant did not argue actual vindictiveness, the sentence on that count was not vindictive. State v. Febuary 74 Or App 820 (2015).
Robbery-II – No Mental State Applies to Other Person Aiding in the Theft
Second-degree robbery does not require that the “other person actually present” know that the defendant is committing theft. Rather, another person actually present who aids defendant only needs to be in proximity to the victim to be an added threat. Here, defendant’s boyfriend was in the store when defendant stole the items, walked with defendant to the car, was beside her when the security officer identified himself and inquired about the unpaid items, and then drove her away from the store. A reasonable factfinder could infer that defendant’s boyfriend was within proximity to defendant and the security officers to be an added threat and assisted defendant in her escape. State v. Morgan 274 Or App 792 (2015).
Vouching - State Cannot Ask Defendant Whether State’s Witnesses Were Lying
A prosecutor may not ask a defendant on cross-examination whether other witnesses have lied. Here, defendant testified differently than the state’s witnesses as to the events that led to his arrest. The state, on cross, repeatedly asked the defendant whether the state’s witnesses were lying when defendant’s version would differ. Any objection should have been sustained. However, because the state’s inquiries were not aimed to undermine or bolster the credibility of the other witnesses but rather purposed to undermine defendant’s credibility and inconsistencies, which would come out in closing argument, the error was harmless. State v. Abbott 74 Or App 778 (2015).
Search & Seizure – Unlawful Extension - Blow Torch and Association with Suspected Drug User Not RS of PCS
A lawful stop may endure only for the time it takes an officer to complete an investigation that is reasonably related to the basis for the stop. Here, defendant was seized as a vehicle passenger when the officers directed their investigation of car prowls towards him. After searching the vehicle and finding nothing, the reasonable suspicion to the car thefts abated; however, the officers continued the stop by asking defendant probing questions and never informing defendant he was free to leave. Because the driver was a suspected drug user and a butane torch was found in the car, the officers requested and received defendant’s consent to search his person for drugs. However, at that moment, the facts did not rise to objective reasonable suspicion that defendant possessed drugs and thus it was unlawful for the officers to extend the stop. As the consent resulted from the officers’ illegal seizure, it was not voluntary. Reversed. State v. Sherman 74 Or App 764 (2015).
