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
Consolidation of Charging Instruments on Day of Trial to Correct Error in Indictment Is Untimely
When a defendant faces charges scheduled for trial on different days, a motion to consolidate the charges for a single trial is untimely when initially filed on the first trial date. Here, the state mispleaded one of the charges in a multi-count indictment. On the day of trial, the state caught its mistake and dismissed the erroneous count, then immediately pled the charge correctly in an information under a new case number, and successfully moved to consolidate all charges for trial on that very same day. The Court of Appeals reversed, holding that the consolidation was untimely . The Court reasoned that the new information resulted in a new case with a new trial date and, under the rule above, it was too late to file a motion to consolidate the trials. State v. Beltran, ___ Or App ____ (Oct. 9, 2013).
Contempt Is Not an “Offense” for Purposes of Expungement Statute
Contempt of Court is not an “offense” in the context of expungements. Having a conviction set aside requires, among other things, that the petitioner has not been “convicted . . . of any other offense” within the last 10 years. The Court of Appeals holds that Contempt of Court does not fit within the definition of “offense,” which requires that a person be convicted of a violation, misdemeanor, or felony. Contempt is none of these. State v. Coughlin, ___ Or App ____ (Oct. 9, 2013).
