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 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
A Day-of-Trial Motion for Consolidation Is Untimely
A motion to consolidate is untimely under ORS 132.560 where it is made on the day of trial for some, but not all, of the charges. Here, the state caught a pleading mistake on the day of trial. Thus, they dismissed the erroneous count, 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 reverses, holding that the consolidation was untimely because the dismissal resulted in a new case with no trial date and, thus, a motion to consolidate was being made on the day of trial for some, but not all, of the charges. 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).
A Jury Instruction Creates the Law of The Case
A jury instruction, to which neither party has excepted, creates the law of the case. Here, the court relies on the jury instruction for the definition of "prescription" in a Tampering with Drug Records case to determine that a prescription is forward looking. Thus, regardless of the actual law (which may be consistent with the instruction), it is the law for this case. Here, defendant was a nurse who falsified the records for pills dispensed, in order to steal some for herself. Since the tampering was with a dispensing record, which is inherently backward-looking, it does not meet the instruction's definition of “prescription.” 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)
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)
Error to Unconditionally Admit Prior Act Evidence to Prove Intent When Defense is that Actus Reus Never Occurred
Prior bad acts are not admissible to prove intent when the defense is that the actus reus never occurred, unless two conditions are satisfied: (1) the prosecution must offer sufficient evidence to allow a fact finder to find the actus reus occurred, and (2) the court must instruct the jury that it can only consider the prior acts if it first finds that the actus reus occurred. See State v Leistiko. State v. Hutton State v. Goff, 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).
