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).
Expungement - Contempt Is Not a Conviction
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).
Tampering with Drug Records - A “Prescription” is Forward-Looking.
The court determined that the trial jury instruction definition of “prescription,” uncontested by either party, “became the law of the case.” Here, a nurse falsified the record of quantity of pills dispensed, stating she had dispensed three pills when she had only dispensed one, keeping the other two pills herself. Since the tampering was with a dispensing record, which is inherently backward-looking, it does not meet the definition of “prescription.” The statute did include forging an “official written order” as an alternate method of tampering, however here there was no evidence submitted in this case on that point. Reversed. State v. Evilsizer, 258 Or App ___ (2013).
Six Person Jury Trials for Misdemeanors are Constitutional.
Both provisions at issue in this case were added to the Oregon Constitution as referred constitutional amendments. The court depends its judgment on the intent behind these two voter passed amendments and how the provisions interplay. One is that a valid verdict may be returned by 10 jurors out of 12 and the other allows a six person unanimous verdict in misdemeanor cases. Upheld. State v. Sagdal, 258 Or App ___ (2013).
Involuntary Commitment – Sufficient evidence
Through clear and convincing evidence, a court may order involuntary commitment if the court finds that, as a result of a mental disorder, the individual is “dangerous to self”. Here, appellant refused to take insulin for his diabetes due to a belief that God would protect him if he stopped. The court found that the evidence—a nonexpert first responder testifying to the risks of untreated diabetes; appellant knowing these risks; and seriously elevated blood-sugar levels after not being treated for five days—was sufficient for commitment. State v. C. C., 258 Or App __ (Oct 9, 2013)
Prior Bad Acts to Prove Intent Inadmissible Where Defendant Denies Actus Reus.
Prior misconduct evidence is admissible to prove intent only when the actus reus is admitted by the defendant. Here, the defendant completely denied the alleged acts. State v. Goff, 258 Or App ___ (Oct 9, 2013)
Unlawful Search - Defendant Must Prove Nexus Between Evidence and Police Misconduct
A defendant must establish the existence of a factual nexus between the evidence sought to be suppressed and police misconduct before the burden shifts to the state to prove that the evidence was independent of the misconduct. Here, defendant consented to remaining in a police car while deputies spoke with his mother regarding their domestic disturbance. The court finds that the deputies’ entry and search into defendant’s house was independent of defendant’s detention in the car because defendant’s mother consented to the search. State v. Wynne, 258 Or App ___ (Oct 9, 2013)
Per Curium
State concedes motion to suppress should have been granted where defendant, who was arrested for a probation violation, was asked by officers pre-Miranda if a urine test would be clean for drugs. Defendant admission of methamphetamine use should have been suppressed. State v. Provost, ___ Or App ____ (Oct. 9, 2013).
