Case Reviews
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Oregon Appellate Ct. - Oct. 29, 2014
by: Frangieringer and Abassos • October 29, 2014 • no comments
- Impeachment – Prior Acts Only Relevant If They Go To The Precise Fact Testified To
- Identity Theft – Withdrawing Funds As A Legal Joint Account Holder Is Not Identity Theft
- Distribution – Spending A Month At A Grow House Sufficient To Show Intent to Deliver
- Continuance – Obtaining New Counsel A Day Before Trial Grounds For Continuance
- Stalking Protective Order – Prior Non-Injurious Contact Contributes To Objective Fear in Later Verbal Contact
- Alcohol to Minors – Tenant Does Not Authorize Access To Alcohol By Merely Being Present
- Traffic – Needing To Use The Bathroom Is Not An Excuse To Impeding Traffic
- Search – Straw Considered Drug Paraphernalia
- Stalking Protective Order – A Letter Is Not An Object
Oregon Appellate Ct. - October 22, 2014
by: Frangieringer and Abassos • October 22, 2014 • no comments
- Physical Injury - Hair Pulling Neither Physical Impairment Nor Substantial Pain
- Permanency Hearings -- Out-of-court Statements Not a Violation of Parents’ Due Process
- Witness’ Competency -- Admissible Opinion Testimony
- Parole – Parole Board May Delay Release For Potential Danger To The Community
- Vouching – Not Plain Error To Admit Testimony Of Whether Victim Was Faking Distress
- Warrantless Search – Requiring Defendant To Submit to HGN Test in Courtroom is a Search
- Per Curiam: COA Will Review Plain Error Decisions Not To Merge
Oregon Appellate Ct - Oct. 15 2014
by: Frangieringer and Abassos • October 15, 2014 • no comments
- Traffic Stop – Passenger Not Stopped When He Should Reasonably Feel Free to Leave
- Hearsay Exception – Statement Admitted Through OEC 803 Must Be Precisely Identified
- Hearsay Exception – Continued Stress From A Threat of Death Extends Excited Utterance
- Expert Testimony – Police Observations of Intoxication Is Not Scientific Testimony
- Right to Silence – Refusal To Speak To Cops Cannot Be Used As Indication of Guilt
- Theft – State Only Need Prove Some Value For Theft 3
- Merger – Offenses merge when each offense has an element that the other lacks
- Merger – Trial Court Must Decide Merger Before Considering Consecutive Sentence
- Permanency Plans – TPR Judgment Set Aside After Permanency Plan Was Reversed
- Speedy Trial – Delay Due To Defendant’s Flight Reasonable When Pursued By Authorities
- Per Curiam - DUII Fees And Unitary Assessment Do Not Apply To Reckless Driving
Oregon Appellate Ct - Oct. 8, 2014
by: Frangieringer and Abassos • October 8, 2014 • no comments
- Kidnapping – Isolating Movement In Same Building Satisfies Asportation Element
- Interstate Detainers – No Unreasonable Delay When Caused by Transfer Process Itself
- Plain Error – Not Plain Error To Find That Cigarette Burn Could Result in Serious Injury
- Child Custody - Child's Injuries While In Father's Care Sufficient for DHS Jurisdiction
- Searches - Defendant's Lack Privacy In Digital Copy of Texts Sent To Third Party's Phone
- Seizure - Approaching A Car and Asking For ID and Then Consent to Search is Not a Stop
- Severance - Not Required Where State's Examination of Defendant Is Limited To Case Defendant Testifies On
- Jury Instructions - Don't Need to Give Leistiko Instruction Where State Is Not Associating Defendants' Conduct
- Attorneys Fees - Court May Impose If Circumstances Show Potential Of Paying In The Future
- Searches - Police Do Not Have Implied Consent To Enter Backyard Without A Warrant
Oregon Appellate Ct - Oct. 1, 2014
by: Abassos and Francis Gieringer • October 1, 2014 • no comments
- PCR - It's Not IAC to Not Request a Lesser Included When Theory is That Crime Never Occurred
- Inevitable Discovery Only Applies Where Other Means for Obtaining Evidence Were Inevitable
- When Evidence Is Scientific and Requires Foundational Expert Testimony
Oregon Appellate Ct - Sept. 24, 2014
by: Abassos and Francis Gieringer • September 24, 2014 • no comments
- Potential Prosecutorial Misconduct Must Be Looked At In Context
Oregon Appellate Ct. - Sept. 17, 2014
by: Abassos, Francis Gieringer and Alarson • September 17, 2014 • no comments
- Prior Bad Acts - Old Assault By Complainant Against Defendant Relevant to Reasonableness of Self-Defense
- Search Incident to Arrest - Full Search of Passenger Compartment Incident to a DUII Arrest is Permissible
- Merger - Offense Subcategory Allegations Neither Preclude Nor Create Merger
- Possession of a Burglary Tool – State Must Prove Intent to Use By More than Mere Possession
- Asking For, Taking and Checking a Person's ID is Not a Sufficient Show of Authority to Constitute a Stop
Oregon Supreme Ct - Sept. 14, 2014
by: Abassos and Francis Gieringer • September 14, 2014 • no comments
Parole Board Decisions Postponing Release Are Subject to Judicial Review
→ read the full summaries...Oregon Appellate Cases - Sept. 10, 2014
by: Abassos and Francis Gieringer • September 10, 2014 • no comments
- Stalking Order - Qualifying Contacts - Alarm and Apprehension
- A Pretrial Affidavit Waives Self-Incrimination for the Contents of the Affidavit
- Vehicle Exception and Officer Safety - Backpack in a Car
- IPO - Passive Resisting = Techniques Associated with Civil Disobedience
- Stop - Pat Down - Proximity to a Robbery
- Stops - Extension - Unavoidable Lull
- Pat Down - Vague Statement Regarding Possessing a Weapon
- Assault - Self Defense - Error to Instruct on Complainant's Lawful Use of Force
- Assault of an Estranged Stepchild is Not DV
- Restitution May Not Be Imposed on Codefendant For Uncharged Crimes
- Felon In Possession of a Firearm - No Merger Where Guns Obtained at Different Times with Sufficient Pause Between
- PC for FSTs - Physical Signs of Intoxication Not Necessary
Oregon Appellate Ct - Sept. 4, 2014
by: Abassos and Francis Gieringer • September 4, 2014 • no comments
- Felony Assault IV - Prior Conviction Includes a Plea Into a Diversion Program
- Criminal Trespass - Reasonable Belief That Eviction Order was Unlawful is Irrelevant
- Jury Instructions - Failure to Instruct on Defendant's Theory
- Reasonable Suspicion Based on Citizen Informant Motel Clerk
- Generalized Desire to Commit Crime Weeks After Incident Irrelevant to Intent
- Motion for Continuance to Find a Subpoenaed Witness
- Former Speedy Trial - Judicial Explanation of Long Delay Due to Docket Congestions May Create Reasonableness
- PCR - IAC - Failure To Challenge the State's Theory When There's No Risk to Defendant
Oregon Supreme Ct - Aug. 28, 2014
by: Abassos and Francis Gieringer • August 28, 2014 • no comments
Consent Following Illegal Police Action - The Second Coming of State v Hemenway
"When a defendant has established that an illegal stop or an illegal search occurred and challenges the validity of his or her subsequent consent to a search, the state bears the burden of demonstrating that (1) the consent was voluntary; and (2) the voluntary consent was not the product of police exploitation of the illegal stop or search." In determining whether an officer exploited his illegal conduct to obtain consent, a court should look at the totality of the circumstances, including: 1) the purpose and flagrancy of the violation, 2) the temporal proximity between the “unlawful conduct and consent, and 3) the presence of any “intervening or mitigating circumstances.” In articulating this new rule, the Supreme Court "disavows" the minimal factual nexus test from State v Hall. The court applies the new test in 3 cases:
- In State v. Musser, 356 Or 148 (2014), the officer exploited an illegal stop to obtain defendant’s consent to search items in her purse when the officer stopped defendant without reasonable suspicion by saying, “Hey, I need to talk to you.” While the defendant was reaching for her ID, the officer spotted two Crown Royal pouches and asked for defendant’s consent to search the pouches. Because the stop was generalized and without reasonable suspicion, and the conduct of the officer was such a severe interference with defendant’s Article I, section 9 rights, there was an exploitative connection between the illegality and the consent, "notwithstanding the fact that the police conduct was restrained and courteous." (quote from State v Unger at 85).
- In State v. Unger, 356 Or 59 (2014), detectives did not exploit their illegal conduct to obtain consent to enter defendant’s home when after knocking on the front door and receiving no answer, the detectives followed a path to the backyard and contacted defendant after knocking on the back door. Because the detectives interacted with defendant just as they would have at the front door, the severity of the misconduct was low.
- In State v. Lorenzo, 356 Or 134 (2014). the officer did not exploit his misconduct to obtain consent where the officer’s illegal action was limited to opening an apartment door and reaching inside to knock on defendant’s door to ask if defendant was “okay.” Because the purpose was to check on the defendant’s safety, the resulting unlawful reaching into the door was of low severity, and the officer obtained no information about criminal activity from the unlawful search itself, the subsequent consent was not vitiated.
Oregon Appellate Cases - Aug. 27, 2014
by: Abassos • August 27, 2014 • no comments
- Search Warrants - Analyzing PC After the Warrant is Controverted
- Issue Preclusion May Not Be Used By the State to Establish an Element
- No Citation Is a Sufficient Grounds for Relief From Default of a Traffic Violation
Oregon Supreme Ct - Aug. 21, 2014
by: Abassos • August 21, 2014 • no comments
Two People Committing Repeated, Coordinated Shopliftings Can Qualify As Racketeering
The definition of "Enterprise" in the Oregon RICO statute is broad enough to encompass two people who have committed three shopliftings in a coordinated way. No formal organization or structure is required. Here, defendant and another person committed three shoplifting-style thefts of more than a thousand dollars from grocery stores in different cities. The items stolen were of the sort that are commonly resold (Huggies, Tide and shrimp). "The jury in this case was entitled to infer that the three thefts, “far from being random, sporadic, or isolated,” originated from an “overarching, coordinated organizational dynamic and design.”" State v Walker, 366 Or 4 (2014).
Oregon Appellate Ct - Aug. 20, 2014
by: Abassos, Katie Watson and Evan Ottaviani • August 20, 2014 • no comments
- Defendant with Viable Theory of Self-Defense Entitled to Self-Defense Jury Instruction in Resisting Arrest Charge
- Consent to Blood and Urine Samples- Influence of Pain Medication does not Make Consent Involuntary; Probable Cause not Necessary for Request
- Tampering with Physical Evidence- ORS 162.295(1) “Official Proceeding” Requirement not met when Defendant Merely Believes a Future Proceeding Might Occur
- No Exigent Circumstances when Possibility of Imminent Harm is Speculative and No Evidence that Obtaining Warrant Would Have Led to Destruction of Evidence
- State Not Held to Plea Agreement When Defendant Absconds
- No Exigent Circumstances when Possibility of Imminent Harm is Speculative and No Evidence that Obtaining Warrant Would Have Led to Destruction of Evidence
- State Not Held to Plea Agreement When Defendant Absconds
- “Same Criminal Episode” in ORS 131.505 Defined Broadly
- A Statement Made by a Third Party is Hearsay if Its Content Can Be Used as Circumstantial Evidence of the Charge.
- An Escape Attempt During an Assault is Not per se Evidence of a Sufficient Pause so as to Renounce Criminal Attempt, as Required by the Anti-Merger Statute.
- Questioning a Defendant who has Indicated that he is not in Need of Police Assistance does not Constitute a Seizure.
- When an Inadvertent Intrusion on Defendant’s Right to Counsel Occurs, Defendant Must Show he was Prejudiced by the Violation to Obtain a Dismissal.
Oregon Supreme Ct - Aug. 14, 2014
by: Abassos • August 14, 2014 • no comments
- A PCR Petitioner Is Not Both Entitled to Counsel and to File Pro Se Motions
Oregon Appellate Ct - August 13, 2014
by: Abassos, Evan Ottaviani, Katie Watson and Samantha Robell • August 13, 2014 • no comments
- Double Jeopardy- “Same Offense"
- Sex Abuse II Merges with Sodomy III When the Conduct Involves Deviate Sexual Intercourse With a Victim Under 16
- A “No Trespassing” Sign Next To Driveway Does Not Automatically Create a Privacy Interest in the Driveway
- Mistrial- Eliciting Testimony That DUII Suspect Invoked Right to Remain Silent, Found Inadmissible In a Pretrial Ruling, Was Prejudicial
- Defendant May Agree to the Judicial Determination of an Element, During a Jury Trial, Without a Written Waiver of Jury
- The Retention of Identification for More Than a Brief Period May Be a Per Se Stop.
- Civil Commitment - It's Plain Error Not to Advise AMIP of the Right to Subpoena Witnesses
- Burglary - A Private Club Is Not "Open to the Public”
- Preservation - Search of a Bedroom vs Opening the Door
Oregon Supreme Ct - Aug. 7, 2014
by: Abassos, Lisa Fitzgerald, Evan Ottaviani, Katie Watson and Samantha Robell • August 7, 2014 • no comments
- Exigent Circumstance—Preventing Further Imminent Harm to Animal Victim
- Unlawful Use of a Weapon Encompasses Using a Weapon to Threaten Harm or Injury.
- Animals can be victims within the meaning of Oregon’s anti-merger statute.
- Police Officers May Rely on Information Provided by Other Officers as a Factor in Justifying a Stop
- A Police Officer’s Experience and Training May Be a Factor Considered by The Court When Reviewing A Stop
Oregon Appellate Ct - Aug. 6, 2014
by: Abassos, Lisa Fitzgerald, Evan Ottaviani and Katie Watson • August 6, 2014 • no comments
- Motions for Continuance- Defendant’s Assertions Must Be More Than Speculation
- DUII- $2,000 Fine for Third or Subsequent Conviction Not Mandatory If Defendant is Sentenced to Time in Jail
- Crim Mistreatment I - Leaving Child With a Known Abuser is Enough to Get Past MJOA
- The Fact That Defendant Lies About His Name to the Cops Is Not Itself Sufficient to Attenuate Such Statements From Prior Illegal Police Conduct.
- Emergency Aid Exception—Officer Must Believe there is Immediate Need for Assistance
- Inventory Search Exception is Limited to Specific Terms of Inventory Policy
Oregon Appellate Ct. - July 30, 2014
by: Abassos, Lisa Fitzgerald, Evan Ottaviani and Tim OConnor • July 30, 2014 • no comments
- Hearsay Prejudicial, for Appellate Purposes, where Credibility is a Central Issue at Trial
- Sexual Abuse III— Mens Rea for Lack of Consent is at least Criminal Negligence
- Stops-Conversationally Requesting and Verifying a Person’s ID is Not a Stop
Oregon Appellate Ct - July 23, 2014
by: Abassos, Lisa Fitzgerald, Katie Watson, Evan Ottaviani and Tim OConnor • July 23, 2014 • no comments
- PCR - Ineffective Assistance of Counsel- No Prejudice when Defense Counsel Used Prior Bad Acts to Support Defense Theory
- Fines and Fees - State Must Show That Defendant Currently Has or Will Have Financial Resources
- "Suspicious Movement,” Attire, and a Prior Conviction Justify Traffic Stop Extension on Officer Safety Grounds
- Right to Proceed Pro Se—Court Must Determine that Defendant Understands Inherent Risks
- It Is Plain Error to Impose Attorney Fees on an Indigent Defendant
- UUMV- Stacking Inferences and Speculation
- Officer Safety - Possession of a Gun
