Case Reviews
From OCDLA Library of Defense
- Go here to see a list of:
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Oregon Appellate Ct - May 20, 2015
by: Abassos and Kit Taylor • May 20, 2015 • no comments
- A Person Has a Possessory Interest in a USPS Express Mail Package In Transit
- Burglary 1 - A Breezeway Can Be Part of a “Dwelling"
- DUII - A Person With a CDL is Ineligible for DUII Diversion, Regardless of the CDL's Validity
- Sex Abuse - OEC 412 - Evidence of Prior Consensual Sex is Admissible When the State Opens the Door By Bringing in the Prior Sexual Contacts
- OEC 801(4)(a)(B) - Prior Consistent Statements to Rebut a Motive to Fabricate Must Have Been Made Prior to When the Motive Existed
- Attorney Fees - The Court Must Determine Ability to Pay
- Merger - Attempted Agg Murder with Two Victims Does Not Merge With Both Lesser Counts of Attempted Murder for Same Incident/Same Victims
- Probation Revocation - A Sanction Cannot Exceed the Maximum Determinate Sentence
- Dependency Jurisdiction - The Focus Is On the Child's Welfare, Not the Parent's Conduct
Oregon Supreme Ct - May 14, 2015
by: Abassos • May 14, 2015 • no comments
- Identity Theft - Signing a Fingerprint Card and Property Receipt With a False Name is Neither "Uttering" Nor "Converting to One's Own Use"
Oregon Appellate Ct - May 13, 2015
by: Abassos and Kit Taylor • May 13, 2015 • no comments
- Probable Cause - Behavior Intended to Assert One's Privacy Rights Cannot Contribute to PC
- Waiver of Counsel is Not Knowing If There Is Only an Abstract Appreciation That It Is Risky
- It Is Not a Search When Police Observe and Download Files Shared on a Peer to Peer Network
- UUV - Keeping a Vehicle for Three Weeks on a One-Day Rental Contract is a "Gross Deviation From the Agreement"
- DUII - ORS 813.011 - Mandatory Minimum Sentence for Repeat Offenders Cannot be Suspended or Reduced
- 'Imposition of Attorney Fees is Appropriate if Court Reasonably Infers Defendant May Have the Ability to Pay in the Near Future
- OEC 403 - Exclusion of Relevant Rebuttal Evidence is Permissible to Avoid a “Trial within a Trial”
- Sodomy I - Forcible Compulsion Must be Knowing
- Child Sex Abuse - Vouching
- FAPA Restraining Order – Trial Court's Coercive Statements Violated Defendant’s Right to Testify
- TPR - Pattern of Conduct Not likely to Change is Sufficient to Terminate Parental Rights
- TPR - Short-term Treatment Progress and Desire to Change Not Sufficient to Prevent Termination of Parental Rights
- TPR - Unavailability to Parent Due to Incarceration Alone is Not Sufficient Proof of Serious Detriment to Child
Oregon Appellate Ct - May 6, 2015
by: Abassos • May 6, 2015 • no comments
- Search Warrant - Probable Cause - Possession of a Firearm After a Shooting
- Burglary - Public Area of Hospital After Hours is Not Open to the Public
- Search and Seizure - Probable Cause - Fraudulent Tags + Furtive Behavior + Sketchy Story + No Insurance or Bill of Sale = PC
- Prior Bad Acts - Prior Solicitations For Murder in a Solicitation for Murder Case Against the Same Victim
- Termination of Parental Rights - The Erroneous Appointment of a Guardian Ad Litem Renders the Proceeding Fundamentally Unfair
- Parole Board Reviewability - A Decision Not to Reconsider an Order Is Not a Itself a Final Order and, Therefore, Not Reviewable
Oregon Appellate Ct - April 29, 2015
by: Frangieringer and Abassos • April 30, 2015 • no comments
- Search Warrants - 11 Ounces of Weed and an Expired Medical Marijuana Card is Enough for a Warrant
- Stops - Reasonable Suspicion – "Couple of Guys Smoking Something"
Oregon Supreme Ct - April 23, 2015
by: Frangieringer and Abassos • April 23, 2015 • no comments
- Witness Tampering - The Victim is the State, Not the Witness
Oregon Appellate Ct - April 22, 2015
by: Frangieringer and Abassos • April 23, 2015 • no comments
- Kidnapping – Moving a Person from One Room to Another, Without More, Is Not Asportation
- PCS – A Person Can Constructively Possess Drugs Located in Another Person’s Vagina
- Jury Concurrence – Error Not to Give Concurrence Instruction on Accomplice vs Principle
- Choice of Evils – Failure to Appear - Caring for Someone Who Is Ill is Not Sufficient, By Itself
- Stops – Tense Conversation and Investigatory Questioning Can Create a Stop
- Merger – Rob I and Rob II with a Firearm (Same Incident/Same Complainant) Do Not Merge
- Merger – Multiple Counts of Sex Abuse I (Same Incident/Same Complainant) Merge
- Dependency – Sufficient Progress for Service Agreement Does Not Require Return of Child
- TPR – Denial of Addiction Can Be the Basis for a Termination
U.S. Supreme Ct - April 21, 2015
by: Frangieringer • April 21, 2015 • no comments
- Fourth Amendment – No de minimis Extension of Traffic Stops Without Reasonable Suspicion
Oregon Appellate Ct - April 15, 2015
by: Frangieringer and Abassos • April 16, 2015 • no comments
- Failing to Report as a Sex-Offender – State Doesn’t Need to Prove Location on the 10th Day
- Sentencing – Can’t Impose Post-Prison Supervision That Would Exceed Statutory Maximum
- Merger – No Merger Where Offenses Arising From the Same Incident Are “Temporally and Qualitatively Different”
- Conditions of Probation – Complete Internet Ban Okay Where it Furthers the Purposes of Probation
- PSRB – OAR 859-050-00100 Does Not Conflict With the ORS
Oregon Appellate Ct - April 8, 2015
by: Frangieringer, Alarson and Abassos • April 9, 2015 • no comments
- Coercion – A Person Has a "Legal Right to Abstain" From Returning Property They Have a Right to Use
- Vouching – Social Worker in Sex Abuse Case Can’t Testify That There Were No Indications of Suggestion or Coaching
- Character Evidence – Prosecutor Can’t Comment on Defense Failure to Present Evidence That Is Barred By the Evidence Code
- Inevitable Discovery – State Must Identify Lawful Means
- Dependency – Court Has No Obligation to Sua Sponte Terminate a Guardian Ad Litem
- Dependency – General No-Contact Order is Overbroad If Less Restrictive Order Would Suffice
- Preservation - Dependency - Strategic Silence Doesn’t Preserve Error
- Merger - Preservation - Counts that Merge if There Is a Common Victim Do not Fail to Merge Just Because the State Names Additional Different Victims for Each Count
- Preservation – Waiver of Jury Trial - Must Ask Judge for Reasoning to Preserve Issue for Appeal
Oregon Appellate Ct - April 1, 2015
by: Frangieringer and Abassos • April 1, 2015 • no comments
- Bias – Evidence of a U Visa Application is Relevant Impeachment Evidence
- Hearsay – Under OEC(18a)(b), Unavailability is Immaterial if the Declarant Testifies
- Asking for the Time Is Not Disorderly Conduct
- Vouching – Harmless Error - Testimony Consistent with the Defense Theory
- Use of Child in Sexually Explicit Display – "Permit" Means to Make Possible, Not Authority To Prohibit
- Vouching – Plain Error - “True” Vouching
U.S. Supreme Ct - Mar. 30, 2015
by: Frangieringer and Abassos • March 30, 2015 • no comments
- IAC – Skipping Argument Irrelevant to Theory of the Case is not IAC
- Search & Seizure – Satellite Monitoring is a Search
Oregon Appellate Ct - Mar. 25, 2015
by: Abassos and Frangieringer • March 25, 2015 • no comments
- DUII - Exigent Circumstances to Enter a Home - State Must Show That Evidence Would Have Been Completely Lost (Not Just Diminished) - For a DUII That Means Five Hours, 20 Minutes
- DUII - Scientific Evidence - Testimony That a Breath Test Within Two Hours of Driving Is Very Unlikely to Overestimate BAC
- Stop Extension - An Unavoidable Lull Can Occur During a Lawfully Expanded Stop
- Miranda – Knowing and Voluntary Waiver When No Indication of Mental Health Impairment
- Right to Silence Does not Extend to Not Responding to Text Messages
- Hearsay – Arguing Inferences From Not Responding to Text Messages is Not Hearsay
- Robbery – Failing to Pay Cab Fare is Not a Taking of Property
- Dependency – Pattern of Instability Sufficient to Deprive Parental Rights
Oregon Supreme Ct - Mar. 19, 2015
by: Abassos and Margaret Laffan • March 19, 2015 • no comments
- OEC 404(4) Expressly Supersedes OEC 404(3): Other Bad Acts Are Admissible to Prove Propensity in a Child Sex Case
Oregon Appellate Ct - Mar. 18, 2015
by: Abassos and Frangieringer • March 18, 2015 • no comments
- Mistrial – Prosecutor May Not Comment on an Unadmitted Video During Closing
- Mistrial - A Prosecutor Must Intend to Cause a Mistrial For Prosecutorial Misconduct to Bar Retrial
- Prosecutorial Misconduct - Prosecutor Is Not Allowed to Cause the Loss of a Defense Witness, Regardless of Intent
- Police Interrogation – Art. I § 12 Permits an Officer to Say That a Quick Confession Will Make Defendant Appear Better in Court
- Interrogation – Harmless Error to Admit Polygraph Statements if Other, Similar Inculpatory Statements Given
- Incapacity to Consent to Sex Can Be Caused By Severe Mental Illness
- Automobile Exception Does Not Apply Unless Officers See the Vehicle Moving
- UUV Requires a Mental State of Knowledge, Not Negligence
- Best Evidence Rule Does Not Apply to Observations of a Live Video Feed
- Miranda – Transportation to Detox is Not A Compelling Circumstance
- Confrontation – Video of Witness Interview Admissible Where Witness Also Testified
- Probable Cause – Dumping a Backpack is a Furtive Gesture
- Escape II – Flight From Arrest for a Post-Prison Supervision Sanction Is Not Escape II
- UUV – Honest Claim of Right is Not a Defense
- Accomplice Liability – Natural and Probable Consequences Is Not the Law
- Probation – Prohibiting a Probationer From Being in Areas Where Hunting Might Occur is Overbroad
- Dependency – Jurisdiction - Spouse Being a Sex-Offender, By Itself, Is Speculative As to Harm to Children
- Appellate Procedure - An Error is Not Plain if Consistent With Defense Strategy
- Preservation – Must Specify Rulings for Appeal, No Matter How Many Motions Filed
Oregon Supreme Ct. - Mar. 12, 2015
by: Frangieringer and Abassos • March 12, 2015 • no comments
- Criminal Mischief – Wild Deer Are the Property of Another
Oregon Appellate Ct. - Mar. 11, 2015
by: Frangieringer and Abassos • March 11, 2015 • no comments
- OEC 412 Evidence of Past Sexual Behavior Is Only Admissible if Circumstances Are Similar
- Vouching - An Expert's Testimony That Complainant's Statements, If True, Indicate Grooming is Not Vouching
- Identity Theft – Possession of Stolen Identification Documents From Multiple People is Sufficient to Infer Intent to Deceive or Defraud
Oregon Supreme Ct. - Mar. 5, 2015
by: Frangieringer and Abassos • March 5, 2015 • no comments
- Appellate Jurisdiction – State Can’t Appeal Misdemeanor Convictions, Nix Vacated
- Search & Seizure – Dissipation of Controlled Substance is an Exigent Circumstance
Oregon Appellate Ct. - Mar. 4, 2015
by: Frangieringer and Abassos • March 4, 2015 • no comments
- Qualifying Experts – Pharmacologist Can Testify About Effects of Drugs on Mental State
- Dependency Hearing – Parents Must Raise IAC Claims During the Permanency Hearing
- Reasonable Suspicion – Seeing Burning Embers Without More Is Not Enough to Stop
- Appellate Jurisdiction – Failing to Waive Fees in Diversion Not Grounds for Appeal
- Search & Seizure - Facts That Have Innocent Explanation Can Still Give Rise to Reasonable Suspicion
- Sex Offender Reporting – Duty to Report Requires More than an Offender Leaving Former Residence
- Accomplice Testimony – Evidence Readily Corroborating Testimony, Enough to Convict Defendant
Oregon Appellate Ct. - Feb. 25, 2015
by: Frangieringer and Abassos • February 25, 2015 • no comments
- Search & Seizure – Harmless Error Where Evidence Did Not Alter Verdict
- Jury Instructions – Requested Instructions Must be Tied to the Evidence
- Bias – Crossing Complainant on Intent to Apply for U Visa Goes to Bias
- PCR – Attachments to Petition Do Not Need to Prove the Truth of Petitioner’s Allegations
- IAC – Lawyer’s Don’t Have to Advance a Rule That Has Yet to be Promulgated
- Vouching – Lupoli Does Not Encompass Out-of-Court Statements on Credibility
- Criminal Mistreatment I – Mere Exposure to a Hostile Dog is Not Assaultive Conduct
