Oregon Appellate Court - Oct 23, 2013
by: Alarson, Jwithem and Abassos • October 23, 2013 • no comments
Substantial Electricity Levels and Officer's Training Sufficient to Corroborate Anonymous Informant of Marijuana Grow
The totality of the facts in a search warrant corroborated an informant’s statements alleging illegal dealing at a medical marijuana grow site where: (1) utility records showed electricity levels at defendant’s house higher than appropriate for a medical grow; (2) a hand to hand drug transaction was observed by someone who just left defendant's house; (3) the only ground floor window was covered; (4) frequent, short visits were observed at the house. The court relies heavily on the officer's "training and experience". State v. King, 259 Or App __ (Oct. 23, 2013).
Prosecutorial Misconduct - Comments That May Raise Racial, Ethnic, or Religious Bias Require Either a Curative Instruction or Mistrial
A prosecutor may not use a defendant's race or religion to argue her case, even unintentionally. Here, the prosecutor in voir dire raised a hypothetical for discussion that involved a man in "Saudi Arabia or Iran" expecting that sex abuse would not be prosecuted unless the victim could produce 5 witnesses. Defendant was of Iranian descen and Muslim. The court finds that, at a minimum, a curative instruction was required: "In the end, regardless of the prosecutor's motivation in making such comments, this court simply cannot tolerate conduct, blatant or subtle, that even borders on an attempt to introduce, at any stage of a trial, issues of racial, ethnic or religious bias." State v. Farokhrany, 259 Or App __ (Oct. 23, 2013).
Evidence of Market Value of Copper Sufficient to Withstand MJOA
A motion for judgment of acquittal is proper where evidence is sufficient to prove charges on the indictment. Here, the indictment alleged first-degree theft of copper wire with a value of $750 or more. The cables containing the wire cost a total of $2,050 and it was reasonable for a trier of fact to find that the market value of the copper wire made up at least $750 of that cost. State v. Patton, 259 Or App __ (Oct. 23, 2013).
Demurrer and Mistrial Requests Properly Rejected
The trial judge correctly denied a demurrer stating that the relevant statute imposed penalties that were not "proportioned to the offense," in violation of Article I, section 16. Potential sentences for second-degree sexual abuse and attempted second-degree sexual abuse may be disproportionate, however, the problem lies with the sentencing guidelines—which provide crime seriousness scores—rather than the statutes.
Additionally the trial judge did not abuse its discretion in denying a mistrial because the two instances where prejudicial information reached the jury were quickly corrected and minimized, and they did not result in the defendant receiving an unfair trial. State v. Woodall, 259 Or App __ (Oct. 23, 2013).
