Oregon Appellate Court - Oct 23, 2013

by: Alarson, Jwithem and Abassos • October 23, 2013 • no comments

• Evidence of the Market Value of a Multi-Part Object Can Be Sufficient to Withstand MJOA for Theft of a Constituent Part
• The Sex Abuse II Proportionality Issue is Not Demurrable - The Sentence Must Be Challenged
• Resisting Arrest - State Must Prove Knowledge of Arrest

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 the Market Value of a Multi-Part Object Can Be Sufficient to Withstand MJOA for Theft of a Constituent Part

Where an indictment alleged theft of copper wire with a value of $750 or more, it was enough to survive MJOA that the state proved that the cables containing the wire cost a total of $2,050. It would have been reasonable for a trier of fact to find that the market value of the copper wire made up at least $750 of the $2,050. State v. Patton, 259 Or App __ (Oct. 23, 2013).

The Sex Abuse II Proportionality Issue is Not Demurrable - The Sentence Must Be Challenged

A demurrer to Sex Abuse II for being constitutionally disproportionate is properly denied because the problem lies with the sentencing guidelines, rather than the statutes. The particular issue is that Sex Abuse II punishes sex with a 17 year old more harshly than Rape III punishes sex with a 14 year old. The proper remedy for such disproportionality, assuming it exists, is to remand for resentencing, not dismiss for want of a constitutionally valid statute. Thus, defendant must be challenge the sentence imposed. State v. Woodall, 259 Or App __ (Oct. 23, 2013).

Resisting Arrest - State Must Prove Knowledge of Arrest

An element of Resisting Arrest is defendant's knowledge that he is being arrested. The court overrules its contrary holding from State v. Toelaer (1984). Since the trial court found that the defendant was not aware of being under arrest as a matter of fact, the conviction is reversed. State v Olive, 259 Or App ___ (Oct. 23, 2013)