Case Reviews
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Oregon Appellate Ct. - April 16, 2014
by: Abassos • April 16, 2014 • no comments
- Testing of a Dog During an Animal Neglect Investigation is an Article I, Sec 9 Search
- A Search Incident to Arrest for Failure to Display a License is Limited to Weapons
- It's Hard Out Here for a Pro Se Defendant
Oregon Appellate Ct - April 9, 2014
by: Abassos • April 11, 2014 • no comments
- A court is almost never required to impose sentences consecutively.
- Officer Safety Frisk - Agitation and Odd Behavior Does Not Amount to Reasonable Suspicion of the Threat of Serious Physical Injury
- Criminal Mistreatment II - Very Dark Bruising, By Itself, Does Not Establish That Medical Care Was Necessary
Oregon Appellate Ct - April 2, 2014
by: Abassos, Alarson, Cmaloney and Alex Collins • April 4, 2014 • no comments
- Incriminating Statements – Article I, Sec. 11 Rt to Counsel Extends to Factually Related Criminal Episodes
- Burglary II – A Structure Can Be Adapted for Carrying on Business Even if the Purpose is Storage
- Preservation – OEC 404 Issue Not Preserved By OEC 403 Argument
- Exclusionary Rule Doesn't Apply to Evidence Discovered for Reasons Unrelated to Illegality
- Prior Bad Acts to Prove Identity Require a Signature Element Only Attributable to the Accused
- Identity Theft – Identity Theft – Signing and Submitting a False Name at Booking is Conversion and Uttering
- Permanency - Cause of Child's Injury Relevant
- Destruction of Records - 1987 Dangerous Offender Appeal
Oregon Appellate Ct - Mar. 26, 2014
by: Abassos and Megha Desai • March 27, 2014 • no comments
- DMV Suspension Hearing - Setover - Jury Duty is Not an Official Duty Conflict
- Merger – Sufficient Pause – Assault III (aided by another) and Misdemeanor Assault IV
- ECSA - Nudity Alone May Be a Lewd Exhibition
- Disproportionality - Remand for Re-Sentencing to Consider Buck/Rodriguez
- Severance of Joined Charges - Substantial Prejudice - "Sufficiently Simple and Distinct"
- Warrantless Seizure - Exigent Circumstances - Imminent Destruction of Computer Evidence
- ECSA - MJOA - Intent to Duplicate or Display by Sharing
- Resisting Arrest - Self-Defense Jury Instructions Must Refer to Defendant's State of Mind, Not the Officer's
- Motion to Dismiss on Double Jeopardy Grounds must be made Prior to Trial
- The Denial of a Day-of-Trial Continuance Request is Unlikely to be an Abuse of Discretion
- Denial of a Motion for Continuance - Harmless Error - Defense Forced to Trial Without Completing Forensic Testing
- Interfering With a Peace Officer - A Lawful Order is One that is Legally Justified, Not One Made While the Officer is Lawfully Present
- The Exclusionary Rule Does Not Apply to Crimes That Are Threatening to Police During an Illegal Stop or Entry
- Dependency - Jurisdiction - Lack of a Custody Order - DHS Must Prove A Risk of Serious Loss or Injury
- Parole - Agg Murder - Authority to Recalculate Matrix Release Date
- Diagnosis of Sex Abuse Where There IS Physical Evidence - 403 Balancing Test Required
- Dependency - Jurisdiction - A Motion to Terminate Wardship May Not Be Made By A Collateral Attack on the Initial Jurisdictional Decision
- PCR - Appellate Counsel Was Not Inadequate for Failing to Raise a Southard Issue Before the Opinion but After Review was Granted
- Civil Commitment - It's Plain, Reversible Error When A Judge Fails to Give the ORS 426.100(1) Rights
Oregon Supreme Ct - March 20, 2014
by: Abassos and Megha Desai • March 20, 2014 • no comments
- Sell Orders - A Judge May Order a Defendant Involuntarily Medicated to Restore Competence
- Ineffective Assistance of Counsel - Isolated Failures in A Capital Case Do Not Spoil Extensive Mitigation Investigation
Oregon Appellate Court - March 19, 2014
by: Abassos and Alarson • March 19, 2014 • no comments
- Child Neglect - Failed But Meaningful Efforts Do Not Constitute Negligence
- Hearsay is Still Hearsay Even If It's Used for Impeachment
Oregon Appellate Court - March 5, 2014
by: Abassos, Alarson, Cmaloney and Alex Collins • March 5, 2014 • no comments
- Discovery: No Duty on State to Acquire DOC Records
- Civil Compromise – Only the Directly Injured Victim Needs to Assent, Not the Insurance Company
- Preservation - Amended Indictment Morning of Trial - Correct Arg is Grand Jury, Not Notice
- Defendant’s Pre-Mills Venue Challenge Via MJOA Does Not Waive an Appropriate Challenge to Venue on Remand
- An Error in Imposing Restitution Requires a Remand for Resentencing
- Dependency - Lack of a Custody Order Alone is Not Enough to Continue Jurisdiction
Oregon Appellate Court - Feb 26, 2014
by: Abassos • February 28, 2014 • no comments
- Dependency – Order to Participate in a Psych Eval Need Only Bear a Rational Relationship to Bases of Jurisdiction
- Dependency Jurisdiction – Sufficient evidence
- Speedy Trial - Delay caused by IAD Procedures Was Reasonable
- Possession with Intent to use a Firearm is Neither Use nor Threatened Use
Oregon Appellate Court - Feb 20, 2014
by: Abassos, Alarson and Jwithem • February 20, 2014 • no comments
- Failing to Instruct the Jury on an Element is Plain Error
- Stalking Protective Order - Expressive Conduct May Inform the Context for a Nonexpressive Contact
- Inventory Exception - Officer Must Have Lawful Authority To Seize
- Unlawful Possession of a Firearm - Place of Residence Exception
Oregon Supreme Court - Feb. 13, 2014
by: Abassos and Alex Collins • February 13, 2014 • no comments
Forfeiture by wrongdoing (OEC 803(3)(g))
- Intent to Prevent Witness Testimony Need Not be Primary (or only) Intent
- Defendant Need Not Be Acting in Contemplation of an Ongoing Matter
- No additional inquiry into reliability is required
Oregon Appellate Court - Feb. 12, 2014
by: Abassos • February 12, 2014 • no comments
- Retrograde Extrapolation is Scientific Evidence'
- Using a Child as Display in Sexually Explicit Conduct - A Photo of A Sexual Act with a Child Present is Enough to Survive MJOA
- Crim. Mischief III is Not a Lesser-Included of Crim. Mis. II
- Unauthorized Departure is Not a Lesser-Included of Escape
- PCR - A Constitutionally Adequate Counsel Would Request a No Character Evidence Instruction in a Multi-Victim Rape Trial
- Burglary - A Room Is "Open to the Public" if it Is Reasonable to Believe No Permission is Required to Enter
- DUII - Admissibility of Verbal Field Sobriety Tests Despite Admonishment
- AIP – Bad Court Behavior and Lengthy Criminal History Are Enough to Deny Eligibility for AIP
Oregon Supreme Court - Jan. 30, 2013
by: Abassos • January 30, 2014 • no comments
- Harmless Error - Lesser Included Offenses
Defendant was charged with possession of a restricted weapon by an inmate for having a broken spoon in his cell. The trial court rejected defendant's requested instruction for attempted possession of a restricted weapon by an inmate. The "erroneously omitted instruction would have told the jurors that there was a legal distinction between taking a substantial step toward making the spoon into a weapon and completing the task. In other words, the definition of the term "weapon" told the jury what a weapon is, but it did not tell the jury that the spoon was not a weapon if it was an object that defendant was still in the process of making into a weapon." Therefore, the error was not harmless.
→ read the full summaries...Oregon Appellate Ct - Jan. 29, 2014
by: Abassos, Cmaloney, Alarson and Alex Collins • January 29, 2014 • no comments
- Attorney fees cannot be imposed when the record is silent regarding defendant’s ability to pay
- Consent to Search Can Be Invalidated by a Miranda Violation
- Denial of Corroboration Instruction for Accomplice-Witness Constitutes Error
- Recklessness - Insufficient Evidence Without a False Transcription
- 90 Day Speedy Trial Request: “typical delay inherent in scheduling trials” is not good cause
Oregon Appellate Court - Jan 22, 2014
by: Abassos • January 22, 2014 • no comments
- DUII – Implied Consent Warnings Are Not Coercive
- Emergency Aid – Implied Consent to Enter a Home to Render Aid Doesn't Include Implied Consent to Find the Owner
- Robbery II - Escape Hatch Allowed if Victim's Subjective Fear Was Unreasonable
- Restitution Awards – Post-judgment Interest Unlawful In Restitution Awards
Oregon Appellate Court - Jan. 2, 2014
by: Abassos and Aurelia Erickson • January 8, 2014 • no comments
- UPPA – Police Lacked PC for UPPA Where Conduct was Ambiguous
- Probation Revocation – Consecutive Sentences Must Be Based on Multiple Violations
- Dependency - A Guardianship Is a “Foster Care Placement” for Purposes of ICWA
- Termination of Parental Rights – The Court May Not Default a Parent Who Is Present In Court
- Merger - Rape I and Sex Abuse II Merge
Oregon Supreme Ct - Dec 27, 2013
by: Abassos • December 27, 2013 • no comments
A Party May Obtain Appellate Review Without First Excepting in Trial Court
A party may obtain appellate review of a jury instruction (or absence of one) without having to except in trial court. The appellate court is not precluded “from reviewing a claim of error pursuant to the court’s traditional plain error doctrine.” Here, defendant objected properly but did not except properly. The Court holds that the issue was preserved and the defendant's claim that an improper jury instruction was given is entitled to appellate review. Reversed and Remanded. State v. Vanornum, 354 Or 614 (December 2013).
Jurors Must Concur on Whether Defendant Was the Principal or Aided and Abetted the Principal
Upon request, a concurrence instruction must be given which states that 10 jurors must agree as to whether defendant was the principal or aided and abetted another in committing the crime. An exception to this requirement is cases of third-degree assault which “can be prove[n] either by directly inflicting an injury or by engaging in acts extensively intertwined with inflicting that injury.” A principal in the first degree and a principal in the second degree are interchangeable for Assault III. Affirmed. State v. Phillips, 354 Or 598 (December 2013).
OR Appellate Ct - Dec. 26, 2013
by: Abassos • December 26, 2013 • no comments
- Former Fugitive Doctrine - Ten Year Absence
- Murder by Abuse - A Person Can Be Dependent Based on Transitory Injuries
- Unlawful Possession of a Firearm - A Campsite Can Be a Place of Residence
- FSTs Are Presumptively Justified By the Exigency of an Evanescent Substance
- Sex Abuse I - Knowingly Applies to "Forcible Compulsion"
- Right to Counsel Pre-Breath Test - Unequivocal Refusal of a Reasonable Opportunity
- Merger - There Is No "Merger For Sentencing"
- ORS 419B.040(1)'s Child Abuse Exception to the Privilege Rules Does Not Apply to Statements Diminishing Complainant's Credibility
- Solicitation to Commit a Crime Can Be Enough For an Attempt to Commit the Crime
- A Dangerous Offender Sentence Requires Both an Indeterminate and a Determinate Term of Prison
- "Highly Concerning for Sexual Abuse" is, in the Absence of Physical Evidence, an Inadmissible Comment on Complainant's Credibility
- Pretrial Detainees Retain Privacy Rights in Their Possessions
- Dependency - Impermissible Inferences - What a Person Believes is Not the Same as What He or She Is Likely To Do
Oregon Appellate Ct - Dec. 18, 2013
by: Abassos • December 18, 2013 • no comments
- 90 Day Inmate Speedy Trial - Once There's a Continuance the 90-Day Period No Longer Applies
- Conditional Discharge - Must Be Granted if No PV Alleged Before End of Probation
- A Jury Instruction May Not Expand Factual Allegations
- Contempt - Failure to Do Community Service
- Criminal Mischief - Wild Animals are the Property of the State
- Probation Violations - The Right to Cross-Examine Urinalysis Technician
- OMMA - Hashish is Usable Marijuana
- A Stipulated Facts Trial Requires a Written Jury Waiver
- TPR - Untreated Schizophrenia as the Basis for Termination of Parental Rights
Oregon Supreme Ct, Dec. 12, 2013
by: Abassos • December 12, 2013 • no comments
- Burglary - Jury Concurrence is Not Required for Entering vs Remaining
- DUII - Consent to Blood/ Breath Test is Not Involuntary Merely Because of Statutory Implied Consent Warnings.
Oregon Appellate Ct - Dec. 11, 2013
by: Abassos • December 11, 2013 • no comments
- Delinquency - Court May Not Order Youth to Pay for Psych Eval
