Oregon Appellate Court - October 9, 2013

by: Jevans, Alarson, Cmaloney and Abassos • October 10, 2013 • no comments

A Defendant’s Ability to Pay Attorney Fees Must be Supported by the Record

A court’s determination that a defendant is or may be able to pay attorney fees must be supported by the record. Here, the court imposed attorney fees based on the speculative possibility that defendant's family would help him pay. There was no evidence in the record to support that possibility. Under ORS 161.655(4), the court did not have the authority to impose attorney fees. State v. Wallace

Error to Unconditionally Admit Prior Act Evidence to Prove Intent When Defense is that Actus Reas Never Occurred

Prior bad acts evidence is not admissible to prove intent when the defense is that the actus reas never occurred, unless two conditions are satisfied: (1) the prosecution must offer sufficient evidence to allow a fact finder to find the act occurred, and (2) the court must instruct the jury that it can only consider the prior acts as evidence of intent if it first finds that the actus reas occurred. Here, defendant allegedly hit his ex in the mouth and burned her with a cigarette. Defendant contended that those events never occurred. Because the second condition above was not met, it was error to admit evidence of a prior occasion in which defendant hit the victim. State v. Hutton