Oregon Appellate Ct - Aug 31, 2016
by: Sara Werboff • September 2, 2016 • no comments
Denial of Motion to Sever is Not Error when Sex Abuse Allegations are of Same or Similar Character
The court concludes that because the allegations of sexual abuse were of the same or similar character and defendant's was not substantially prejudiced by joinder, the trial court did not err in denying defendant's motion to sever charges concerning two different victims. Defendant was charged with sodomy and sexual abuse of his nephew, K, in the 1990s, and sodomy and sexual abuse of a different nephew, J, more than a decade later. The court holds that the crimes involving K and the crimes involving J were of a similar character because defendant "target[ed] his young, male family members for sexual purposes." The court also holds that the joinder did not substantially prejudice defendant even though the allegations were not cross-admissible because the evidence was "sufficiently simple and distinct to mitigate the dangers created by joinder." Additionally, the trial court gave a limiting instruction that it could not consider evidence concerning one victim as evidence of crimes concerning the other victim unless and until it had concluded that the charged conduct had taken place and at least 10 jurors agreed on the verdict.
State v. Buyes, 280 Or App 564 (2016) (Garrett, J.)
Restitution - Damages for Hit & Run Include Money Spent by Insurer for Purposes of Restitution
ORS 811.706 authorizes restitution awards to insurers. Defendant was convicted of failing to perform the duties of a driver after she left the scene of an accident where the victim's car sustained $5,307.52 in damages. The trial court ordered that defendant pay $500 for the deductible to the victim and the balance to the insurer. Defendant argued that under ORS 811.706 the trial court only could award restitution to the owner of property. The court concludes that the plain text of the statute contains no such limitation, and any suggestion in earlier case law was dicta. ORS 811.706 authorizes a restitution award of the amount of damages caused by the defendant in the accident underlying the hit & run, regardless of who has borne the financial burden.
State v. Anderson, 280 Or App 572 (2016) (Dehoog, J.)
Jury Instructions - Failure to Instruct on State's Burden to Disprove Defense is Plain Error
The trial court's failure to instruct the jury that the state was required to disprove beyond a reasonable doubt defendant's defense of property defense was plain error. The trial court's instruction, which omitted the burden of proof, did not inform the jury that the state was required to prove that the defense did not apply beyond a reasonable doubt, and therefore the trial court's instruction created an erroneous impression of law that prejudiced defendant.
State v. Gore, 280 Or App 624 (2016) (De Muniz, S.J.)
