Case Reviews
- Go here to see a list of:
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Oregon Appellate Ct. - Nov. 26, 2014
by: Frangieringer, Abassos and Alarson • November 26, 2014 • no comments
- Providing False Information – Officer Must Know of Arrest Warrant to Convict Under ORS 162.385
- Expectation of Privacy – No Privacy in Utility Subscriber Information
- Temporary Custody – Intermittently Watching over Young Children is Sufficient to Show Control
- Dependency Hearing – Must Look at Parent’s Behavior Throughout the Life of the Case
- Permanency Hearings – DHS Must Look at Both Parents For Unification
- Matrix Sentencing System – Board of Parole Can Choose Election Date That Gives Most Information
- Restitution – Criminal Conduct Must be the “But For” Cause of the Expenses
- Aid and Abet - Accomplice Liability Allowed for Assault-3
Oregon Appellate Ct. - Nov. 19, 2014
by: Frangieringer and Abassos • November 19, 2014 • no comments
- Sentencing – Conduct from One Event That Led To the Same Harm Should Be Sentenced Concurrently
- Commitment Hearings – Courts Must Advise Defendant of Rights Even If Represented By Counsel
- Restricted Weapons – Ninja Climbing Claws Are Not Metal Knuckles
Oregon Appellate Ct. - Nov. 13, 2014
by: Frangieringer, Abassos and Alarson • November 13, 2014 • no comments
- Mistrial – Jury Instruction Mitigates Where Jury Infers That Prior Bad Act Was Unfounded
- Sentencing – No Shift To Concurrent Sentences Where Sex Abuse Is Separate Incident
- Jurisdiction – City And State Have Concurrent Jurisdiction Over Misdemeanors Charged In Municipal Court
- Effective Counsel – Issues Raised Pre-trial, But Not In Trial Are Preserved
- Juvenile Jurisdiction – Mental Health Services Not Required if Other Active Efforts Shown
- IPO – Requires an Intentional Mental State
- Jurisdiction – Constitutional Claims Outside of ORS 138.050 Must Wait For PCR
Oregon Supreme Ct. - Nov. 6, 2014
by: Frangieringer and Abassos • November 6, 2014 • no comments
Search & Seizure – A Valid Warrant Does Not Remove The Taint of A Bad Stop
→ read the full summaries...Oregon Appellate Ct. - Nov. 5, 2014
by: Frangieringer and Abassos • November 5, 2014 • no comments
- Inventory Searches – Policy Allowing Searches of Containers That May Hold Food Or Alcohol Are Overbroad
- Demeanor Testimony – COA Is Really Serious, Witnesses Cannot Testify About Credibility
- Restitution – Complainant’s Security Measures Against Defendant Are Recoverable
Oregon Supreme Ct. - Oct. 30, 2014
by: Frangieringer and Abassos • October 30, 2014 • no comments
Death Penalty – Multi-Holding Case On Miranda, Jury Selection, Defining Dangerous Offenders, Jury Instructions and Age Categories For Murder By Abuse
→ read the full summaries...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.
