Oregon Supreme Court - April 25, 2013

by: Jwestover and Abassos • April 25, 2013 • no comments

Hemenway Vacated as Moot

Because defendant perished on January 27, 2012, “[t]his court’s decision in State v. Hemenway, 353 Or 129 (2013), is vacated as moot; the Court of Appeals decision, State v. Hemenway, 232 Or App 407 (2009), is vacated; and the judgment of conviction is vacated. Defendant’s petition for reconsideration is dismissed as moot.” State v. Hemenway, 353 Or ___ (Apr. 25, 2013).

Ofodrinwa Affirmed—“Does Not” Means Both “Does not” and “Can Not”

“[T]he phrase ‘does not consent’ in ORS 163.425 [second-degree sex abuse] refers to the victim’s lack of capacity to consent due to age, as well as the lack of actual consent.” The Supreme Court engages in statutory interpretation, notes a contrary understanding of the term in a 1983 amendment, but ultimately concludes that the most recent amendment to the statute in 1991 is both dispositive and compels its holding today. The Court also addresses and finds unpersuasive defendant’s arguments to the contrary, and affirms the lower holding. State v. Ofodrinwa, 353 Or ___ (Apr. 25, 2013).