Oregon Appellate Court - June 26, 2013

by: Alarson and Abassos • June 26, 2013 • no comments

• Kidnapping Requires Movement to a Qualitatively Different Place

• Commercial Drug Offense Factors Do Not Need to Be Connected to the Drug Offense

• Prior Bad Acts – Prior DV Assaults Not Admissible to Prove Awareness of Injury Risk

• Victim’s Rights – Restitution May Be Amended 6 Months After Judgment

Kidnapping Requires Movement to a Qualitatively Different Place

The offense of kidnapping requires movement of the victim (aka asportation) from one place to another place that is qualitatively different “as a matter of situation and context.” Here, the victim was assaulted in multiple rooms of an apartment over the course of a day and a half. Because no particular room in the apartment increased defendant’s control over or isolated the victim, the rooms were not qualitatively different. Thus, the movement did not suffice for kidnapping. "State v. Kinslow", 257 Or App __ (June 26, 2013).

Commercial Drug Offense Factors Do Not Need to Be Connected to the Drug Offense

A drug offense may be elevated to a commercial drug offense (CDO) if it is “accompanied” by the factors listed in ORS 457.900. “Accompanied,” in this context, means “occurred or existed in conjunction with.” Here, defendant possessed stolen property unconnected to any drug offense. But since the property was possessed at the same time and in the same place as the drug offense, it “accompanied” the drug offense for the purpose of proving a CDO."State v. Kinslow", 257 Or App __ (June 26, 2013).

Prior Bad Acts – Prior DV Assaults Not Admissible to Prove Awareness of Injury Risk

Prior assaults against the same victim were not admissible in a domestic violence assault case to prove defendant’s awareness that punching and kicking a person carries the risk of injury; mental state was not at issue and, in any case, punching and kicking a person in the face would necessarily prove recklessness toward injury. However, the prior assaults were admissible to rebut defendant’s claim of self-defense. Defendant’s prior assaults against the same victim made it more likely that he, rather than the victim, was the aggressor in the current case. "State v. Teitsworth", 257 Or App ___ (June 26, 2013)

Victim’s Rights – Restitution May Be Amended 6 Months After Judgment

Nothing bars a court from amending a judgment 6 months after sentencing to impose additional restitution in response to a victim’s rights claim. First, ORS 147.515 (allowing victims to file claims for violations of their rights) does not require a pending case. Second, an untimely claim does not act as a jurisdictional barrier. The right of victims to receive restitution is a constitutional (Art I, sec 42(3)), not a statutory, right. It is therefore irrelevant that a victim knew of the court’s failure to impose restitution at the time of the original judgment, but delayed filing a claim. Third, the 90 day limit in ORS 137.106, by its plain language, does not limit the time in which a trial court may resentence a defendant to remedy the violation of a victim’s constitutional rights. "State v. Thompson", 257 Or App ___(June 26, 2013)