Case Reviews
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Oregon Appellate Court 02-02-11
by: Abassos • February 1, 2011 • no comments
Read the full article for details about the following new cases:
- Child Sex Cases - 803 (18a)(b) Hearsay Notice
- Theft - Aiding and Abetting "After the Fact"
- Theft - Merger
- Probation Hearing - Confrontation
Oregon Appellate Court 01-19-11
by: Abassos • January 18, 2011 • no comments
Read the full article for details about the following new cases:
- Dependency - Judgment must contain 476(2)(b,c) Findings
- Merger - Burglary
- Sex Abuse - Diagnosis of Abuse Without Physical Evidence
Not much today. One dependency case and 3 per curiam opinions with not one iota of new law.
→ read the full summaries...Oregon Appellate Court 01-12-11
by: Abassos • January 11, 2011 • no comments
Read the full article for details about the following new cases:
- Evidence - FRE 404(3) Prior Bad Acts
- Plea Bargain - Guardian Ad Litem
- Max Sentence - Prison + PPS
Oregon Supreme Court 01-06-11
by: Abassos • January 5, 2011 • no comments
Read the full article for details about the following new cases:
- Encouraging Child Sex Abuse - Possession of Computer Images
The Oregon Supreme Court today recalibrated the notion of possession and control in the context of computer images. No longer can one be considered in possession and control of an image which one accesses via an internet browser without downloading or otherwise manipulating it. The state had argued that because of one's ability to print it and e-mail it, the viewer was in control of the image. The Court today rejects that notion:
"We think, however, that that argument misses the point: The intangible nature of a web image is analogous to seeing something that a visitor has temporarily placed in one's own home. One may be aware of it, may even have asked the visitor to bring it for viewing, but one does not thereby possess the item.
The state argues, next, that a computer user 'controls' a digital image of child pornography by actively navigating to the web site where it resides, thereby bringing the image to his computer screen. We think, however, that this argument suffers from some of the same defects as the preceding one: Looking for something on the Internet is like walking into a museum to look at pictures - the pictures are where the person expected them to be, and he can look at them, but that does not in any sense give him possession of them."
More later as we process the cases. State v. Barger. State v. Ritchie.
Oregon Appellate Court 01-04-11
by: Abassos • January 3, 2011 • no comments
Read the full article for details about the following new cases:
- Eyewitness ID - Suggestive Procedure Outweighed
- Probation Hearing - Hearsay/Confrontation
- Sex Cases - Uncharged Misconduct Evidence
- Stalking Order - Sufficiency
Oregon Supreme Court 12-29-10
by: Abassos • December 29, 2010 • no comments
Read the full article for details about the following new cases:
- Kidnapping - Movement from One Place to Another
Today the Oregon Supreme Court, in State v. Sierra, recalibrated the crime of Kidnapping where the movement is within the same room or is incidental to another crime. Defendant was charged with Kidnapping I for pointing a crossbow at an employee of a convenience store who was outside at the time, ordering him inside and behind a desk in the rear of the store while threatening and then assaulting him. Defendant was also charged with Kidnapping II because two good samaritans came into the store to intervene and were ordered behind the desk as well.
A unanimous Supreme Court today overturns the two Kidnapping II convictions, finding that the victims were not taken "from one place to another" because they ended up in the same room in which they started and not in a qualitatively different place. Additionally, the movement was incidental to other crimes committed against them.
Two prior Oregon Supreme Court cases exemplify the two rules that (1) the movement must be from one place to a qualitatively different place and (2) the movement must not be incidental to another crime. In State v. Murray, the defendant stole a car by jumping into the driver's seat and pushing the victim over to the passenger seat, where she jumped out of the car and defendant drove away. There the movement from one seat to another was incidental to the vehicle theft. In State v. Walch, defendant attacked the victim in her driveway and forced her into the trunk of a car. There the movement was a short distance but it was qualitatively different and it was not incidental to another crime. In today's case, the secondary victims were moved within the same room, and forced to kneel. The room was not qualitatively different on one side as opposed to the other. And the change of body position was not a different space. Also, it is clear that the movement was incidental to the crimes of menacing and unlawful use of a weapon because the victims were moved so that defendant could point his weapon at all three victims at the same time.
The Court gives additional guidance in determining whether the starting and ending points are qualitatively different places:
- Minimal movement that effects little change in the defendant's position will generally not suffice - e.g., from standing to sitting or stepping to the side.
- The degree of force or threat is not generally relevant to the question of asportation.
- The degree to which the movement increases the defendant's control or isolation of the victim is only relevant to the extent that it demonstrates the qualitative difference between the starting place and the ending place.
The Court affirms the Kidnapping I conviction, including the additional element of that charge, that defendant's intent was to terrorize the employee, ie to fill him with intense fear or dread. The defendant tried to argue that his intent was to frighten but not to severely frighten. This is a tough argument though where defendant pointed a crossbow at the victim at close range, threatened his daughter, forced him to kneel in a close, bounded area and kicked him in the head.
Oregon Court of Appeals 12-29-10
by: Abassos • December 28, 2010 • no comments
Read the full article for details about the following new cases:
- Stop - Reasonable Suspicion
- Delinquency - Restitution
- Assault I - Merger
- Dependency - Permanency Plan/Adoption
- Search - Implied Consent
- Motion for Continuance - Due Process
- Speedy Trial - 6 Months of Unexplained Delay
- Civil Commitment - Dangerous to Self
Oregon Court of Appeals 12-22-10
by: Abassos • December 21, 2010 • no comments
Read the full article for details about the following new cases:
- Parole Board hearings - Right to Review Recordse
- PCR Appeal - Sex Abuse
Oregon Supreme Court 12-17-10
by: Abassos • December 16, 2010 • no comments
Read the full article for details about the following new cases:
- Unconstitutionally Obtained Statements - Retrial or Harmless Error
- OEC 404(4)
- Relevance - Defendant's Theory of the Case
Oregon Court of Appeals 12-15-10
by: Abassos • December 14, 2010 • no comments
Read the full article for details about the following new cases:
- In-Court Identification - Suggestive Throwdown
- Merger - Att. Assault II and Assault IV
- Amendment of Sentence without Defendant's Presence
- Restitution - Counseling Costs
- Plainly Erroneous PPS Terms
- Automobile Exception - Parked Vehicle
- Sex Abuse Diagnosis - Highly Concerning for Sex Abuse (Bench Trial)
- Civil Commitment - Dangerous to Self
- MJOA - DUII (Alcohol/Pot combo)
- Prison Sentence - No Contact Order
Oregon Court of Appeals 12-08-10
by: Abassos • December 7, 2010 • no comments
Read the full article for details about the following new cases:
- DUII Bicycle - Driving Revocation
- VRO Contempt - Not a Conviction
- Stalking - Motion to Seal the File
- Preservation of Jury Instruction Objection - Must except after instructions are read
Oregon Court of Appeals 12-01-10
by: Abassos • November 30, 2010 • no comments
Read the full article for details about the following new cases:
- Confession vs Admission - Corroboration
- Merger: - Assault I and Unlawful Use of a Weapon
- Search Warrant - Sufficiency of Affidavit
- Stop - Extension/Unavoidable Lull
- Waiver of Right to Jury Trial - Intelligently
- Vouching - Diagnosis of Sex Abuse
- Upward Departure - Notice to the Court not Required
Oregon Court of Appeals 11-24-10
by: Abassos • November 23, 2010 • no comments
Read the full article for details about the following new cases:
- Impeachment for Bias - Initial Showing
- Upward Departure - Persistent Involvement
- DUII Diversion Eligibility - Prior Similar Program
- Merger - Attempted Theft and UEMV
- Multiple Fines - Compensatory Fine and Court Fine Impermissible
- Interrogation - Assertion of Right to Counsel
- Preservation - Jury Instructions
- Civil Commitment - Speculation
- Stop - Free to Leave
Oregon Court of Appeals 11-17-10
by: Abassos • November 16, 2010 • no comments
Read the full article for details about the following new cases:
- Search - Shoe Soles
- Escape II - Custody
- Statute of Limitations - Sex Offense Exception (Attempts)
- Interfering with a Peace Officer - Lawful Order
- Scientific Evidence - HGN
- Emergency Aid - True Emergency
- Probation Hearing - Hearsay (Confrontation/Due Process)
- Violation of a Stalking Protective Order - Free Speech
Oregon Supreme Court 11-04-10
by: Abassos • November 3, 2010 • no comments
Read the full article for details about the following new cases:
- Haugen death penalty review
Released by the Oregon Supreme Court today: State v. Haugen - an ag murder committed in prison
- Neither Oregon nor Federal law bars a judge from excluding a non-English speaker from jury duty. Here, two jurors were released, sua sponte, from the jury venire by the judge because the jurors needed interpreters.
- Evidence of bias may be excluded if it is cumulative. Here, the state's witness, after testifying, walked by the defendants on his way out and said "How do you like me now?". The defense wanted to present that statement as evidence of the witness's hostility toward defendants. The Court finds that the witness's hostility was sufficiently displayed during his testimony when he was verbally aggressive with defense attorneys and repeatedly indicated that defendants had made his life miserable. Thus, the proposed testimony was cumulative and the trial judge had the discretion to exclude.
- Where the court makes a pretrial ruling that a witness's testimony is generally admissible but reserves for trial the possibility of objections to discrete pieces of evidence then an objection to such evidence must be made during trial. Even if a written pretrial motion was submitted. Here, defense counsel moved in limine to exclude testimony by psychologists on future dangerousness. They also filed detailed written motions setting forth the basis of their objections to such testimony. The judge ruled that the motion was premature because there was no indication that any of the 5 psychologists were going to testify about future dangerousness. They were being called for other reasons. When one of the 5 did testify regarding future dangerousness, it was incumbent upon defense counsel to make an objection at that time. The judge had said he would hold a hearing out of the presence of the jury once it was clear that the objection was not premature. Defense counsel didn't object or bring it up during trial. Thus, the objection to that testimony was unpreserved.
- Despite the fact that ORS 137.123 requires that a sentence for a crime committed in prison be run consecutive to the sentence that put the person in prison, a death sentence for a crime committed in prison can be executed immediately. Defendant committed an aggravated murder while serving a life sentence. He argues on appeal that he can't get death until after his life sentence is over - ie when he dies in prison. Creative argument. The Court says that the legislature's specific intent in authorizing the death penalty for a murder committed in prison outweighs the general intent captured in the consecutive sentencing statute.
Oregon Court of Appeals 11-03-10
by: Abassos • November 2, 2010 • no comments
Read the full article for details about the following new cases:
- Preservation - Foundation/Vouching
- Search and Seizures - Emergency Aid Exception
- Merger - Aggravated Murder
- Consecutive Sentencing - PV Revocations
- Failure to Appear - MJOA
- Disproportionate Sentencing/Cruel and Unusual Punishment
Oregon Court of Appeals 10-27-10
by: Abassos • October 26, 2010 • no comments
Read the full article for details about the following new cases:
- Restitution - Charged and Uncharged Conduct
- Search and Seizure - Emergency Aid Exception
- Upward Departure - Pleading
- Sex Cases - Defendant entitled to Jury Instruction on other Crimes
- Telephonic Harassment - Intent to Harass/Annoy
- Criminal Trespass - Lawfully directed
- Harmless Error Analysis
Oregon Court of Appeals 10-20-10
by: Abassos • October 19, 2010 • no comments
Read the full article for details about the following new cases:
- Search Warrant - Sufficiency of Evidence
- License Suspension - Breath Test Refusal
- Stop - Unavoidable Lull
- Mental State - Failure to Obey a Lawful Order
In addition to the following cases there was also a reversal in light of Lupoli here and two remands from the Supremes in light of Lennon here and here. As well as an annoying preservation case here, that stands for the proposition that if a judge suggests an argument, you should adopt it as your own.
Oregon Court of Appeals 10-13-10
by: Abassos • October 12, 2010 • no comments
Read the full article for details about the following new cases:
- Misstatement of Evidence in Rebuttal
- Parole - Sex Offender Conditions
Oregon Court of Appeals 10-06-10
by: Abassos • October 5, 2010 • no comments
Read the full article for details about the following new cases:
- Hearsay - Effect on the Listener
- Impeachment for Bias - Pending Criminal Cases and Warrants
- Compelling Prostitution - It's for Pimps, Not for Johns
- Constructive Possession
