Oregon Appellate Court - March 20, 2013

by: Jevans and Abassos • March 20, 2013 • no comments

with Joseph Westover

PCR—Burglary Instructions, and Ineffective Assistance of Counsel
A burglary conviction cannot stand on the allegation that a defendant entered dwellings and remained unlawfully “with intent to commit the crime of theft or criminal mischief” unless it is clear that the same 10 jurors agree which underlying crime defendant intended to commit upon entry. Jury instructions could cure this deficiency. Defendant appeals denial of PCR, and the court finds that defense counsel’s failure to object to the absence of such curative instructions constituted ineffective assistance. Since the record did not reflect clear resolution of the burglary convictions, prejudice occurred. Reversed. Hale v. Belleque, 255 Or App ___ (Mar. 20, 2013).

Termination of Parental Rights—Mother Unable to Keep Kids Safe from Abuse
Court holds that mother is unfit to maintain parental rights because she: (a) failed to protect one child from father’s sexual abuse and places partial blame on the child for the sexual relationship; (b) cannot recognize how her willing blindness of and failure to report the abuse contributed to its continuation; and (c) suffers from PTSD and emotional dependency (among other things) which render her incapable of recognizing the risks that others pose to her children. Further, these parental deficiencies are not likely to be remedied within a reasonable time and it is in the best interest of the children to be placed in stable home as soon as possible. Dept. of Human Services v. F.L.B., 255 Or App ____ (Mar. 20, 2013).

Eyewitness ID Made for the First Time During Trial Can Be Unreliable
The Lawson/James test for the admissibility of eyewitness ID applies whether the identification occurs in or out of court. In this murder case, two witnesses identified defendant as the gunman for the first time during the trial. The court reverses and remands after holding that this identification was unreliable under Lawson/James for various reasons, including:

• Gunman was of a different race than defendant, the witnesses saw the gunman only briefly, and it was dark at the time;
• During contemporaneous interviews, witnesses could not give a detailed description of the gunman;
• In-court identification occurred two years after the crime, with no intervening opportunity to see the defendant; and
• Procedure was highly suggestive since the defendant was the only possible suspect in the courtroom.

State v. Hickman, 255 Or App ____ (Mar. 20, 2013).

PER CURIAM OPINIONS

• Jurors Do Not Need To Agree On Whether Defendant is Principle or Accomplice—To convict, jurors do not need to agree on whether a defendant is criminally liable as a principle or as an accomplice. Jurors only need to agree on which crime was committed, and accomplice liability is not itself an independent offense. Here, defendant was charged with murder because he and other gang members stabbed victim. Court holds that jury did not need to concur as to whether defendant did the stabbing or merely aided. State v. Munoz, 255 Or App ____ (Mar. 20, 2013).

• Merger—Assault II and UUW—Guilty verdicts for Assault II and Unlawful Use of a Weapon should have been merged into a single conviction for Assault II, since the charges arose out of a single attack on a single victim with a knife. State v. Valenzuela, 255 Or App ____ (Mar. 20, 2013).