Case Reviews
From OCDLA Library of Defense
- Go here to see a list of:
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Oregon Appellate Ct - Jan. 21, 2016
by: Abassos • January 21, 2016 • no comments
- Probation Condition - Overbreadth - Ban On Spending More Than $250.00 Without Permission Is Not Overbroad and Is Reasonably Related to Gambling/Theft
- Probation Condition - Overbreadth - Ban on Traveling Outside County of Residence Overbroad and Not Reasonably Related to Theft/Misconduct/Tampering
- Probation Condition - Overbreadth - Ban on Traveling Into County of Crime Is Overbroad in a Stalking Case
- Habeas Petition Challenging Administrative Segregation Must Allege Facts Supporting a Constitutionally Inadequate Process
Oregon Appellate Ct - Jan. 13, 2016
by: Abassos • January 13, 2016 • no comments
- No appellate opinions were issued either the week of January 13th or the week of January 6, 2016.
Oregon Supreme Ct - Dec 31, 2015
by: Abassos • December 31, 2015 • no comments
- A Consent Search Is Justified Only If Someone Who Had Actual Authority Gave Consent. The Federal Doctrine of Apparent Authority Is Inconsistent With Oregon's Conception of Article I, Section 9.
Oregon Appellate Ct - Dec. 30, 2015
by: Abassos and Erin Roycroft • December 30, 2015 • no comments
- Tampering With A Witness – The Defendant Must Have Believed, At The Time Threats Were Made, That the Person Threatened Was Actually Going to Be A Witness
- Attenuation - The Purpose and Flagrancy Factor Is Objective, The Officer's Subjective Intent is Irrelevant
- Photo Radar - A Motion to Dismiss is an Appropriate Vehicle to Challenge the Conditions Precedent
- A Concurrence Instruction Is Required When The State Has Advanced Both Accomplice and Principal Liability
- A Concurrence Instruction Is Not Required For Alternative Factual Means of Proving an Element of the Crime
- Child Sex Abuse - Defendant Was Not Entitled to an In Camera Review of the Victim's Dependency Records
- Confrontation Clause - Right to Examine on Prior False Accusations - Sufficiency of Defendant's Proof of Falsity
- Continuance - Restraining Order Hearing - It Was an Abuse of Discretion Not To Allow Either the Petitioner's Only Witness Or a Continuance
- Vouching - An Officer's Description of an Interview With a Victim Was Not Such Obvious Vouching That It Was Plain Error
- Sentencing – A Probation Condition Is Not Overly Broad If It Is Reasonably Related to the Crime or the Needs of the Probationer
- Delinquency – ORS 419C.261 Dismissal (aka Conditional Postponement) of Sex Offense Does Not Require DA's Assent
- Delinquency – ORS 419C.261 Gives Juvenile Courts the Authority to Dismiss a Petition Pre-Adjudication, Even For the Purpose of Preventing Sex Offender Registry
- Dependency Jurisdiction – An Appeal of an Order Finding Jurisdiction Is Not Moot Just Because the Petition is Ultimately Dismissed
- Dependency Jurisdiction –Drug Use from Five Years Prior Is Not Sufficient to Establish Jurisdiction
- Preservation - Hearsay Objection Is Not the Same as an Objection to Using the Hearsay as Basis of Opinion (i.e. Personal Knowledge)
- Parole - An Appeal of an Order Denying Parole Becomes Moot When the Appellant Is Released On Parole
- Parole - Murder Review Hearing - Substantial Reasoning Supporting a Board Order Means Primarily Explicit Reasoning
Oregon Supreme Ct - Dec. 24, 2015
by: Abassos • December 24, 2015 • no comments
- Child Endangerment - Possession of Drugs Is "Unlawful Activity Involving Controlled Substances"
- Child Endangerment - "A Place Where Unlawful Activity Involving Controlled Substances Is Maintained or Conducted" Means a Drug House
Oregon Appellate Ct - Dec 23, 2015
by: Alisa Larson-Xu and Abassos • December 23, 2015 • no comments
- Reasonable Suspicion - Marijuana Odor Insufficient for Reasonable Suspicion
- Exigent Circumstances – Blood Draw – 2 1/2 Hours For a Warrant and No Officer Time to Get It = Exigency
Oregon Appellate Ct - Dec. 16, 2015
by: Alisa Larson-Xu and Abassos • December 16, 2015 • no comments
- Robbery – Rob-2 Is Not Automatically a Lesser Included of Rob-1
- Prior Violent Acts Are Admissible to Refute Defendant’s Statement That He Would Not Use Force to Harm Another Person
- Felony Resentencing - Where a Conviction is Reversed, The Affirmed Counts Require a Resentencing
- Invited Error – Attorney’s Fees – Recommending An Amount In Sentencing Memo May Invite Error
Oregon Appellate Ct - Dec. 9, 2015
by: Abassos and Alisa Larson-Xu • December 9, 2015 • no comments
- Assault IV - Physical Injury - That the Victim Was Slapped and Felt a Sting Is Not Enough to Establish Substantial Pain
- Scope of Consent to Search - Consent to "Search the Vehicle" for "Anything Concerning" Does Not Include the Search of a Closed Container Inside the Vehicle (Unless the Officer Requests a More Invasive Search)
- Exploitation - The Unlawful Seizure of Defendant By Ordering Him to Get Medical Treatment Was Attenuated From HIs Later Consent to Search Given to A Different Officer at the Hospital
- The Search of a Cell Phone Generally Requires a Warrant - Search Incident to Arrest Does Not Apply
- Incriminating Statements - Statements to an Undercover Officer Will Not Generally Violate Either the Fifth or Sixth Amendments - PCR
- Derivative Use Immunity - Co-Defendant's Statement Was Derived From Defendant's Statement Where the Latter Was Played to Induce the Former - PCR - Death Penalty
- Sentencing – “Remand for Resentencing” Requires A New Sentencing on All Convictions
- Sentencing - Does a Sentence Denying Credit For Time Served Create an Equal Protection Problem Where the Defendant Was Unable to Post Bail?
- Evidence - Hearsay - State of Mind Exception - Defendant's Friend's Intent to Drive Defendant Home Was Admissible to Show That He Did Drive Defendant Home
- Request for Pro Se Representation May Be Denied If It Would Be Disruptive to the Orderly Conduct of a Trial
- PCR – A Written Judgment May State the Grounds On Which the Cause Was Determined By Incorporating Findings Made On the Record
- Dependency Jurisdiction – Mental Health Concerns + Not Fully Engaged in Services + Avoiding Fault for Child’s Injury = Appropriately Continued Jurisdiction
- Dependency - Change of Permanency Plan – Slow Progress in Connecting with Child and Completing Classes Justifies a Change of Plan To Adoption
- Civil Commitment - Intellectual Disability - A Competency Evaluation Will Not Suffice for the Requisite Chapter 427 Diagnostic Evaluation
- Preservation – Where an Exhibit Contains Portions That Are Inadmissible and Portions That Are Admissible, An Objection to the Exhibit Will Not Suffice - Specific Inadmissible Evidence Must Be Identified
- Plain Error - Merger – UUW and Pointing a Firearm at Another Do Not Automatically Merge
Oregon Supreme Ct - Dec. 3, 2015
by: Abassos • December 3, 2015 • no comments
- Death Penalty - Atkins - Very Low IQ Is Not a Required Element of Intellectual Disability
- Death Penalty - Atkins - There Is No Apprendi/Ring Right to Have the Jury Decide Whether the Defendant Is Intellectually Disabled
- Death Penalty - Penalty Phase - A Defense Psychologist's Diagnosis is Relevant at the Penalty Phase, Even If the Judge Disagrees With the Diagnosis
- Death Penalty - Penalty Phase - Co-Defendant's Life Sentence Is Relevant Mitigating Evidence
- The Trial Court May Not Permit Detailed Cross-Examination of a Defense Witness By the Prosecutor Merely to Find Out Whether the Witness Will Assert a Right to Remain Silent
Oregon Appellate Ct - Dec. 2, 2015
by: Abassos and Alisa Larson-Xu • December 2, 2015 • no comments
- Menacing – Imminence - A Threat to Murder Someone in 3 Days Is Not Menacingly Near
- Repeat Sex Offender - Comparable Out of State Offense - California Lewd Acts Law is "Comparable" to Sex Abuse I Despite Being Broader
- Trial Procedure - Prosecutor’s Expression of Personal Beliefs During Opening and Closing Arguments Require, At Least, Curative Instructions
- Search & Seizure – Officer Safety No Longer Applies Once The Officer's Belief of Danger Dissipates
- Exploitation - When the Purpose of Police Misconduct Is To Procure Consent, the State Is Unlikely to Be Able to Prove There Was Not Exploitation
- DNA Testing - Defendant Does Not Lose His Chance for Appointed Counsel by Filing His Request for Counsel and Motion for DNA Testing Simultaneously
- Dependency –Service Defect Waived if Not Raised Early in Proceedings
- The Former Speedy Trial Statute Still Applied Until the Time When the New Statute Went Into Effect
- Plain Error - Discretion - Court Chooses Not to Correct aPlain Error Where Defendant Acquiesced in the Error and It Probably Didn't Make a Difference in the Outcome
- Plain Error - UUV - A Reasonable Dispute Exists On the Question of Whether Defendant Has Consent If Co-Owners Give Conflicting Answers to a Request to Use the Vehicle
- Appellate Procedure - When the Appellate Court Finds That Restitution Is Not Available, Remand for Resentencing Is the Appropriate Action
Oregon Supreme Ct - Nov. 27, 2015
by: Abassos • November 27, 2015 • no comments
- Rt to Be Free From Unnecessary Restraint - Stun Belts - Right to a Hearing - Capital Penalty Phase
- Allocution in the Penalty Phase of a Capital Case Is Not Evidence But May Be Considered By the Jury
Oregon Appellate Ct - Nov 25, 2015
by: Abassos • November 25, 2015 • no comments
- Stalking - A Petition for a Stalking Protective Order Is Not Evidence At the Hearing On Whether to Grant the Petition for a SPO
Oregon Appellate Ct - Nov. 18, 2015
by: Abassos and Cmaloney • November 18, 2015 • no comments
- OEC 702 - An Expert's Testimony About a Mental Health Diagnosis is Relevant If It Explains Behavior At Issue In The Trial
Oregon Supreme Ct - Nov. 13, 2015
by: Abassos • November 13, 2015 • no comments
- A Finding of Separate Criminal Episodes (For Criminal History Scoring and Consecutive Sentencing) Is Not Subject To the Apprendi Rule
Oregon Appellate Ct - Nov. 12, 2015
by: Abassos, Cmaloney and Alisa Larson-Xu • November 12, 2015 • no comments
- Re-Sentencing – The Presumption of Vindictiveness Only Applies When the Resentencing Is Greater Than the Original Sentence
- Robbery-II – Other Person Actually Present and Aiding the Theft Does Not Need to Be Aware of the Theft
- Vouching - The State Cannot Ask Defendant Whether the State’s Witnesses Were Lying
- Search & Seizure – Unlawful Extension - A Blow Torch and Association with Suspected Drug User Not RS of PCS
- Theft by Receiving Requires a Belief That the Property Is Stolen
- Impeachment – Failure to Appear II Is Admissible for Impeachment Under OEC 609(1)
- Sentencing – A Criminal History Score Cannot Be Reconstituted by Convictions Arising From the Same Criminal Episode
- Expert Testimony – An Expert May Testify About Personality Traits Independent of a Diagnosis of Personality Disorder
- Admission of a Party Opponent – The Declarant of a Statement Can Be Inferred From Circumstantial Evidence
- ECSA - Sexually Explicit Conduct – A Photo Can Be a "Lewd Exhibition" Even Though the Subject is Wearing a Shirt and Shorts*
- Contempt of Court – A Person Cannot Be Convicted of Contempt Because It Is Not a Crime
Oregon Appellate Ct - Nov. 4, 2015
by: Abassos, Cmaloney and Alisa Larson-Xu • November 9, 2015 • no comments
- Sentencing – Criminal Episodes - Multiple Agg Thefts Stemming From a Single False Claim of Benefits Is Probably a Single Criminal Episode
- Severance of Charges - A Challenge to Improper Joinder Does Not Require a Showing of Prejudice
- Search & Seizure - Search Incident to Arrest – A Strip Search is Unreasonable in Scope and Intensity
- Search & Seizure - Automobile Exception – Allows Search of a Passenger’s Backpack That Was In the Vehicle When PC Arose
- Preservation - Vouching - After a Party Properly Objects to Vouching No Further Objection Is Required to Preserve the Error for Appeal
- Dependency – Continued Alcohol Use For Single Father Sufficient to Endanger Welfare of Children
- PCR – A Judgment Doesn't Clearly State the Basis for the Court's Decision By Incorporating the Arguments From the State's Trial Memorandum
- PCR – When the PCR Court Does Not Provide a Process for Reviewing the Judgment, Objections to the Form of the Judgment Do Not Need to Be Preserved
- PCR – When the Court Provides a Process for the Parties to Object to the Judgment, Preservation Requirements Will Not Be Excused
- DNA Testing – Defendant Must Show How Testing Would Alter Jury’s Original Assessment of Reasonable Doubt
Oregon Appellate Ct - Oct. 28, 2015
by: Abassos, Alisa Larson-Xu and Cmaloney • November 1, 2015 • no comments
- Unlawful Use of a Weapon – "Use" Includes Using a Weapon to Threaten Immediate Harm
- Reasonable Suspicion – Parking on a Gravel Pull Out Off Of a Public Road Does Not Provide Reasonable Suspicion of Trespass
- Fines and Fees – Ability to Pay - Unlike Attorney Fees, a Compensatory Fine is Not Susceptible to Plain Error Review When There's No Evidence of Ability to Pay
- Expungement – Interests of Justice - Court Must Grant Expungement When Petitioner is Eligible and State Presents No Evidence
Oregon Appellate Ct - Oct. 21, 2015
by: Abassos, Cmaloney and Alisa Larson-Xu • October 21, 2015 • no comments
- Exigency - Urine Test for Drug DUII – Test is Whether Warrant Would Be Significantly Faster Than What Officer Actually Did
- Dependency - TPR – A Parent's Rights May Not Be Terminated for Failing to Appear Where There Was Insufficient Notice of Hearing
- Dependency Jurisdiction – A Wardship Can’t Continue If the Factual Bases for Jurisdiction Have Ceased to Exist
- Preservation - PCR – Dismissal For Failure to Prosecute
Oregon Appellate Ct - Oct. 14, 2015
by: Abassos, Alarson and Cmaloney • October 14, 2015 • no comments
- Encouraging Child Sex Abuse II - Sexually Suggestive Nature of Photos Sufficient to Prove Intent to Arouse
- Endangering the Welfare of a Minor – Evidence Must Be Presented that a Minor Was Present During the Unlawful Drug Activity
- Reasonable Suspicion - PCS - Defendant Nervous, On Probation, Furtive Movements, On Probation
- Probable Cause – PCS - Saying “Hide That” While Furtively Gesturing Is Not PC
- Attorney fees – The State Has the Burden to Prove Ability to Pay
- For Parole purposes, a Vulnerable Victim Need Only Be Vulnerable - The Vulnerability Need Not Have Been Exploited
- Preservation - Post-Conviction Relief - Requesting Remand for a New Trial Does Not Preserve the Remedy of a Delayed Direct Appeal
Oregon Supreme Ct - Oct. 8, 2015
by: Abassos • October 8, 2015 • no comments
- Free Exercise of Religion - The Constitution Allows For A Criminal Conviction On Less Than a Knowing Mental State, Even Where the Criminal Conduct Was Motivated By Religious Belief
- A Trial Court Has The Power To Issue a Sell Order for Involuntary Medication, Even Where The State Hospital Believes That the Person Doesn't Have a Disorder and Does Not Need To Be Medicated
