Oregon Appellate Court 5-2-2012

by: Abassos • May 2, 2012 • no comments

Felon in Possession - 21 Guns in a Safe All Merge

For the purposes of the single statute/single victim section of the merger statute, the word "victim" includes crimes where the victim is the public at large, rather than a specific person. ORS 161.067(3). Felon in Possession of a Firearm is just such a crime - where the public at large is the victim. Thus, multiple counts of Felon in Possession merge if the possession is from the same criminal episode and unseparated by a "sufficient pause". Here, 21 guns were found in a safe. Thus, there was (1) a single criminal episode, (2) a single victim, (3) no pause at all and (4) repeated violations of the same statutory provision. Merger affirmed. [Http://www.publications.ojd.state.or.us/Publications/A144812.pdf State v Torres]. See Ryan's article on this case here .

Stalking - Contacts Must Be Physically Threatening

In order for speech to qualify as a contact for the issuance of a Stalking Protective Order, it must (1) instill a fear of serious imminent violence, (2) be unequivocal and (3) be objectively likely to be followed by unlawful acts. Here, a bunch of offensive statements and yelling between neighbors comes nowhere close to meeting the imminent threat requirement. In order for non-speech to qualify as a contact, it must be objectively reasonable for petitioner to be "alarmed" by the "threat of physical injury". Here, petitioner sprayed respondent's son with a hose while he was removing respondent's fence from a disputed property line. Because the fence removal was not performed in accordance with the law, respondent had a legal right to defend her property with non-lethal force. And, in any case, the legal dispute creates the context for the water spraying incident that makes it clear there was no threat of physical injury. Reversed. SAB v Roach

Continuation of a Stalking Order - No Physically Threatening Contacts Necessary

"the proper inquiry for the court on a motion to terminate an SPO is whether, in view of all of the circumstances, including the respondent's speech, the conduct that gave rise to the issuance of the SPO continues to cause the petitioner to have a subjective apprehension regarding personal safety and that apprehension continues to be objectively reasonable." Thus, the court is allowed to consider new contacts in determining whether to terminate a stalking protective order without determining that they meet the standards required to issue an original stalking order. For example, speech based contacts don't need to be imminently threatening to justify the continuation of a stalking order. CLC v Bowman

C Felonies - You can't get more than five years of prison + PPS.

The court remands because of 3 clear sentencing errors all acknowledged by the state:

1. The court can't impose more than 3 years PPS on a level 8 or 9 gridblock sentence.
2. The court can't impose a combined prison + PPS sentence of more than 5 years on a C felony.
3. The court can't remedy #2 by creating an indeterminate sentence. I.e., by saying that defendant will be on PPS for whatever amount is left in the five years after release from incarceration. The judge must impose a determinate PPS sentence.

State v Young

Delinquency - Harassment

The following argument was unpreserved because it is different than simply saying the state failed to prove it's case: "that evidence of resistance to parental physical discipline cannot, as a matter of law, be evidence of intent to harass or annoy" because a parent is privileged to use physical force and a child lacks the privilege to resist. State v JLC

Per Curiams

• DHS v SD-V: Dependency - Permanency Judgment - Nothing requires that parents be able to show they can do an adequate job independently. If grandma is available to assist, that counts in the analysis of parental fitness.
• DHS v RS: Dependency - Jurisdiction requires circumstances that endanger the welfare of the child. Here, father left child with his mom while DHS had temporary custody of the child. Such an event cannot be the basis of jurisdiction without evidence that it endangered the welfare of the child.
• DHS v EDH: Dependency - A judgment changing the permanency plan from unification to adoption must contain a description of the efforts of DHS to implement the reunification plan.

AWOPs

• Howard, Clayton L. v. Belleque (A142552)
• In the Matter of H. G., a Child. Department of Human Services v. J. C. G. (A149610)
• Ippolito, David Allen v. DeCamp (A145809)
• Presley, Eric L. v. Coursey (A145744)
• Spencer, David Kofi v. Belleque (A147878)
• State v. Alderson, Susan Christina (A146016)