Oregon Appellate Court - August 7, 2013
by: Abassos • August 7, 2013 • no comments
Statute of Limitations - Crimes Occurring Over a Span of Time
When an indictment alleges that a crime occurred over a span of time, so long as some part of the time is within the statute of limitations, the case is not subject to demurrer. State v. Hunter, 257 Or App ___ (2013)
Prior Convictions for Impeachment - OJIN is a Public Record
OJIN is a "public record" that "establishe[s]" convictions within the meaning of OEC 609(1). OEC 609(1) specifically allows for prior convictions to be established by “public record”. Since OJIN is the record, required by state law, for documenting circuit court proceedings, it is a public record. State v Thomas, 257 Or App ___ (2013)
Applying the Correct Law Does Not Create a “Windfall” for the Defendant.
Because of a lengthy procedural history, the appellate court reviews a 2001 pre-Southard trial with a clear Southard/Lupoli issue and applies the law as it would if the case were a recent one. The Southard/Lupoli issue is a sex abuse diagnosis in the absence of any physical evidence. The diagnosis is objectionable as vouching because it’s based solely on the credibility of the complainant. The appellate court generally treats such vouching as plain error and rarely finds it to be harmless. Here, the court also finds that applying the current law to an old case is the right thing to do, even though it puts the defendant in a better position than he would have been at the time of his trial. To do otherwise would be to “apply the law in a manner that we now know to be incorrect.” State v Wells, 257 Or App ___ (2013)
Other Bad Acts - A Simple, Single Prior Sex Crime Will Rarely Be Relevant to Intent or Consent
Where the issue in a sex case is whether the act occurred (including whether there was consent), a simple, unremarkable prior sex conviction will rarely be relevant to prove either intent or lack of consent. Here, defendant was accused of raping a woman with whom he was having an affair. He had a prior conviction for crawling in bed with a woman he didn’t know and forcing himself upon her. The state argued that the two incidents were similar because defendant was drinking and because “he used his size and strength to overcome their resistance”. However, this similarity is little more than the “unwanted sexual contact” "common to all sexual assaults". In order to be relevant to either intent or consent, a single prior act will generally need to be a “complex factual scenario requiring several steps.” State v Roquez, 257 Or App ___ (2013)
