Oregon Appellate Court - Oct 23, 2013
by: Alarson, Jwithem and Abassos • October 23, 2013 • no comments
Resisting Arrest - State Must Prove Intent to Resist an Arrest
An element of Resisting Arrest (ORS 162.315) is defendant's intent to resist an arrest. State v. Toelaer (1984) is overruled. The statutory phrase "intentionally resisting a person" cannot be separated from its prepositional phrase "in making an arrest". Legislative history supports the idea that "resisting" and "arrest" are part of a single inseparable phrase to which the mental state of intentionally applies. 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)
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).
Dependency - Permanency - Sufficient Progress - Addiction Issues
In assessing whether a child’s permanency plan should be changed from reunification to adoption, a juvenile court will consider whether the parent has made “sufficient progress” for the child to safely return home. Here, the juvenile court found that the belated and limited steps the mother had taken to address her substance abuse problems were not sufficient to justify continuation of the plan of reunification. DHS v LAS, 259 Or App ___ (2013).
Dependency - Jurisdiction - Lack of Recent Contact
In order for a juvenile court to take jurisdiction over a child, the court must find that the child’s circumstances are such as to endanger her welfare, and that the parent’s custody creates a risk of a “serious loss or injury”. Here, the state sought jurisdiction over a child who had not had contact with her mother for several years. Though the child’s caseworker claimed that an unsupervised transfer of custody would result in psychological or emotional harm to the child, that evidence was insufficient to show that such harm was “a threat of serious loss or injury,” much less that there was a reasonable likelihood of such harm. DHS v SDI, 259 Or App ___ (2013).
