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 a new information, and successfully moved to consolidate all charges for trial on that day. The Court of Appeals reverses, holding that the consolidation was untimely because the new information created 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. 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
A six person misdemeanor jury trial is constitutional, despite the fact that Article I, Section 11 requires 10 jurors out of 12 for a circuit court jury trial. That provision doesn't apply to misdemeanor cases because (1) Article VII, Section 9 specifically allows for juries of less than ten but no less than six and (2) the voters intent in amending Article I, Section 11 was to create non-unanimous juries, not to require a minimum jury size. State v. Sagdal, 258 Or App ___ (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)
Civil Commitment - Dangerous to Self - Untreated Diabetes
An allegedly mentally ill person (AMIP) is dangerous to himself where his delusions cause him not to take insulin for his diabetes. Here, a first responder testified to the immediate risks of untreated diabetes as well as AMIP's highly elevated blood-sugar levels after not taking insulin for 5 days. State v. C. C., 258 Or App __ (Oct 9, 2013)
Per Curium - Miranda - Probation Violation
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).
