Oregon Appellate Court - October 16, 2013

by: Ashreve, Alarson, Cmaloney and Abassos • October 17, 2013 • no comments

Interference With a Report - "Interference" requires some actual detrimental effect on the making of a report

"Interference" with making a report, has 3 distinct elements; action, effect, and intent. Here, the defendant removed his girlfiend's phone charger from her phone believing it would cut the phone's power. However, he did not actually have any effect on girlfriend's ability to make the call to 911. Effect is a necessary element. Reversed and remanded for conviction of attempted interference. State v. Smith, 259 Or App ___ (2013).

Escape II – No escape occurs when a temporarily released inmate walks away from an authorized program

For escape in the second degree, a defendant is not constructively in a correctional facility when temporarily released for an off premise program that is unsupervised by law enforcement officials. Here, defendant was not constructively confined where he was authorized to leave the jail for work at the fairgrounds and was supervised by a civilian rather than a law enforcement officer. The court distinguishes this circumstance from escaping a home detention or a courtroom confinement, which are both considered constructive confinements in a correctional facility. See also State v. Gruver 258 Or App 549 (2013).State v. Cadger, 259 Or App ___ (Oct. 16, 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. Roelle, 259 Or App ___ (Oct. 16, 2013).