Case Reviews
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Oregon Appellate Court 11-16-11
by: Abassos • November 15, 2011 • no comments
Read the full article for details about the following new cases:
- There's No Such Thing as Merger for Sentencing
- Repeat Property Offender - A Court-Martial is not a Prior Conviction
Oregon Supreme Court 11-10-11
by: Abassos • November 9, 2011 • no comments
Read the full article for details about the following new cases:
- Lesser Included Instructions - Crimes vs. Violations
- Speedy Trial - Consent - Reasonable Delay
Oregon Appellate Court 11-09-11
by: Abassos • November 8, 2011 • no comments
Read the full article for details about the following new cases:
- Preservation - Prior Bad Acts
- Search Warrant - Stale Facts
- Attempted Rape III - Intent to Have Intercourse
- Attorney Fees - Sentencing on Remand
- Delinquency - School Search - Consent
- UUV - Passenger - Probable Cause for Arrest
Oregon Appellate Court 11-02-11
by: Abassos • November 1, 2011 • no comments
Read the full article for details about the following new cases:
- DUII - Sleep Driving
- Vertical Proportionality - Misdemeanor vs Felony Probation Revocation
- Dependency - Change in Permanency Plan to Guardianship
- Appeal - Supplemental Judgment
- Restitution - Good Cause to Extend Past 90 Days
Oregon Appellate Court 10-26-11
by: Abassos • October 25, 2011 • no comments
Read the full article for details about the following new cases:
- Probable Cause - Attempted DUII
- Recording a Police Officer
- Equal Privileges - Aggregation of Thefts
- Harmless Error - Southard
- Compelling Circumstances/Custodial Interrogation
- PCR - Inadequate Assistance of Counsel
- Plain Error - OEC 513(2)
- Dependency - Change in Permanency Plan to Adoption
- Dependency - Jurisdiction
- Maximum Determinate Sentence
Oregon Appellate Court 10-19-11
by: Abassos • October 18, 2011 • no comments
Read the full article for details about the following new cases:
- Theft by Deception - Intent to Defraud
- Criminal Trespass II - Invitation to Enter
- Appeals - Appellate Jurisdiction
- Sex Cases - Prior False Accusations
- Punitive Contempt of Court - "Willfully"
- Appellate Discretion - "Strategic Purpose"
- Reasonable Suspicion - DUII
- Dependency - Continuation of Jurisdiction Based on Original Jurisdictional Judgment
- Dependency - Change of Permanency Plan to Adoption
Oregon Appellate Court 10-12-11
by: Abassos • October 11, 2011 • no comments
Read the full article for details about the following new cases:
- Southard - Plain Error - Discretion to Correct
- Dependency - Child's Statements Admissible as Party-Opponent
Oregon Supreme Court 10-06-11
by: Abassos • October 5, 2011 • no comments
Read the full article for details about the following new cases:
- Warrantless Searches - Automobile Exception
The Oregon Supreme Court today finds that the automobile exception does not permit a warrantless search of an immobile, parked and unoccupied vehicle. State v. Kurokawa-Lasciak
The automobile exception requires that: (1) the automobile is mobile at the time it's stopped by the police; and (2) the police have probable cause to search the automobile. The appellate court, in this case, believed that a car is mobile if it is operable. Since in this case, defendant's van was operable, the appellate court reasoned that it was mobile. Despite the fact that officers never saw defendant driving it, stopped defendant when he was 30 feet away from the van and developed probable cause when defendant was in a casino.
The Supreme Court reffirms past caselaw in finding that mobile means moving, not operable. Where the vehicle is parked and unoccupied at the time it is first encountered, the vehicle is not mobile and the automobile exception does not apply. Even if the defendant is in the general vicinity. State v. Kurokawa-Lasciak
Oregon Appellate Court 10-05-11
by: Abassos • October 4, 2011 • no comments
Read the full article for details about the following new cases:
- Equal Privileges - Prosecutorial Charging Decisions
- Merger - Possession of Multiple Firearms
Oregon Appellate Court 09-28-11
by: Abassos • September 27, 2011 • no comments
Read the full article for details about the following new cases:
- Hearsay - Forfeiture by Wrongdoing
- Expert Testimony - Cross
- Relevance - The Reid Technique
- Identity Theft - Merger - Separate Victims
Oregon Supreme Court 09-22-11
by: Abassos • September 21, 2011 • no comments
Read the full article for details about the following new cases:
- Lay Opinion Testimony - Child Abuse
- Victim's Prior Abuse - Shaken Baby
- Appellate Jurisdiction - Due Process - Guilty Plea
Oregon Appellate Court 09-21-11
by: Abassos • September 20, 2011 • no comments
Read the full article for details about the following new cases:
- Expert Qualifications - Police Officers
- Impeachment - Witness on Probation
- Appeals - Supplemental Judgments
- Diagnosis of Sex Abuse (Southard) - Plain Error
- Criminal Episodes - Increasing Criminal History Score
- Civil Commitment - Basic Needs
- Stop - Free to Leave - Seizure
- Compensatory Fine - Plain Error
- DUII Breath Test - Exigent Circumstances - Machucha
Oregon Supreme Court 09-09-11
by: Abassos • September 8, 2011 • no comments
Read the full article for details about the following new cases:
- Stalking Order Violations - Free Speech
The Oregon Supreme Court today reverses the appellate court, finding that Article I, Section 8 does not provide a free speech defense when the speech is prohibited by a Stalking Protective Order:
We hold that, because defendant's communications were already prohibited by the stalking protective order, the state was not required by Article I, section 8, to prove under ORS 163.750 that defendant had communicated an unequivocal threat to the victim.
To be fair, it's not that there's nothing at the intersection of free speech and stalking order violations, it's just that ORS 163.750 already contains sufficient protections. The stalking order violation statute requires both prohibited communication and, when speech is involved, that "defendant's conduct created a reasonable apprehension regarding the personal safety of the victim. " The appellate court found that the additional free speech protections for the issuance of Stalking Orders (State v. Rangel) also apply to Stalking Order Violations.
The Supreme Court rejects the notion that a stalking order violation requires the exact same protections as the issuance of the initial stalking order. The Court points out that defendant conceded that the Stalking Order itself was Constitutional and lawful and that it could have formed the basis for a contempt charge. But, defendant argued, it could not form the basis for a statutory Stalking Order Violation. The court rejects defendant's attempt to challenge the violation without challenging the order:
The restriction on defendant's speech occurred ( if at all) when the trial court entered a stalking protective order that barred defendant from communicating with the victim in any way. As explained above, ORS 163.750 does not reach any speech not otherwise prohibited by the concededly lawful order. Therefore, a defendant who seeks to challenge a conviction under ORS 163.750 on free speech grounds first must successfully attack the underlying stalking protective order.
On the upside this ruling leaves open the possibility that a stalking protective order could be overbroad, violating free speech. On the downside, we (attorneys) don't usually get the case until there's an alleged violation, at which point a collateral attack is more difficult.
J. Kistler writes separately to add that the subsection of the stalking order violation statute dealing with communication (ORS 163.750(1)(c) is content neutral because it doesn't distinguish between communicative contacts based on whether it conveys a particular message or advocates a specific viewpoint. Instead, it distinguishes among prohibited contacts based on whether they created a reasonable apprehension regarding the personal safety of the victim. That, in J. Kistler's view, is a permissible distinction. State v. Ryan
Oregon Appellate Court 09-08-11
by: Abassos • September 7, 2011 • no comments
Read the full article for details about the following new cases:
- Stop - Free to Leave - Show of Authority
- Stipulated Agreements
- FAPA Restraining Order - Abuse - Fear of Imminent Bodily Injury
- FAPA Restraining Order - Abuse - Fear of Imminent Bodily Injury
- DUII Conviction Fee (the 2009 version)
- Warrantless Breath Test - Machuca
- Stalking Protective Order - Unequivocal Threat
- Criminal Mistreatment - Withholding of Care
- Civil Commitment - Basic Needs
- Search - Inventory
- Seizure - Exigency - DUII
Oregon Supreme Court 09-01-11
by: Abassos • August 31, 2011 • no comments
Read the full article for details about the following new cases:
- Search - Emergency Aid
- Legal Malpractice - PCR - The Stevens Exoneration Rule
- Parole Determinations - Juvenile Aggravated Murderers Sentenced Between 1990 and 1995
Oregon Appellate Court 08-31-11
by: Abassos • August 30, 2011 • no comments
Read the full article for details about the following new cases:
- Stop - Point of Seizure/Reasonable Suspicion
- Statute of Limitations - Commencement of a Prosecution
- Search - School Search - Reasonable Suspicion
- Identity Theft - Mere Possession of stolen ID
- Impeachment - Prior Convictions - 15 years - Confinement
- Prejudice - Lopez-Minjarez (natural and probable consequence instruction is bad law)
- PCR - Judgment Fails to State Legal Basis
Oregon Supreme Court 08-25-11
by: Abassos • August 24, 2011 • no comments
Read the full article for details about the following new cases:
- Accomplice Liability - The Natural and Probable Consequences Instruction is Bad Law
The Oregon Supreme Ct today upheld the Appellate Court in rejecting the natural and probable consequences jury instruction for accomplice liability. Accomplice liability requires specific intent. The natural and probable consequences instruction seemed to say that, in addition to the crimes for which such intent applied, any other crimes that naturally followed were also appropriate for accomplice liability. Such a theory was and continues to be incompatible with Oregon law. State v. Lopez-Minjarez
That's the big takeaway from today's opinion: that the natural and probable consequences instruction is based on bad law and should not be used. Ever.
The rest of the opinion is dedicated to a harmless error analysis to determine which of Mr. Lopez-Minjarez' convictions, if any, should be reversed. The Court finds that the first crime (chronologically) for which defendant was convicted, a burglary, could not have been affected by the bad instruction. The jury could not have found that the burglary was the natural and probable consequence of a prior crime that defendant intended because there was no prior crime alleged. In addition, there was a kidnapping charge in which defendant essentially admitted to being a principal. All the other convictions though, including murder and felony murder, must be reversed because the jury could have believed that defendant did not have the required intent but that the crimes were the natural consequence of either the kidnapping or the burglary. Because the jury could have based its convictions on a theory consistent with the jury instructions but inconsistent with the law, the error was prejudicial.
Oregon Appellate Court 08-17-11
by: Abassos • August 16, 2011 • no comments
Read the full article for details about the following new cases:
- OEC 609-1 - Bias - "a mere tendency to show bias"
- Marijuana Diversion - Inapplicable to Possession Within 1000 Feet of a School
- Burglary I - Entering or Remaining - Boots Instruction
- Assault IV - Physical Injury
- Warrantless Search - Automobile Exception
- Vehicle Stop - Reasonable Suspicion
- Preservation - MJOA - Tampering With a Witness
- Termination of Parental Rights - Detriment to Child
Oregon Appellate Court 08-10-11
by: Abassos • August 9, 2011 • no comments
Read the full article for details about the following new cases:
- Right to Counsel - Invocation on a Different Case - "Factually Unrelated"
- Preservation - Plain Error - Southard
- Restraining Order - "Abuse"
Oregon Appellate Court 08-03-11
by: Abassos • August 2, 2011 • no comments
Read the full article for details about the following new cases:
- Miranda - Mirandized Confession Following a Non-Mirandized Confession
- Cruel and Unusual Punishment
- Stop - Free to Leave
- Arrest - Placing a Suspect in Handcuffs/Probable Cause
- Criminal Mistreatment I - Contractual Agreement
- TPR - Whether condition of parent is "seriously detrimental"
