Oregon Appellate Court - Nov 14, 2013
by: Abassos • November 15, 2013 • no comments
Vouching - Sex Abuse - Treatment Recommendations Are Admissible
It was not a direct comment on the victim's credibility for a CARES social worker to testify to their treatment recommendations that defendant engage in sex offender treatment and that the victim have a safety plan. The jury could infer from those recommendations that the social worker believed the child, but such an inference does not make it vouching. State v Logan, 259 Or App ___ (2013).
Stops - A Windshield Crack is Not a Violation Unless There's a Probable Risk of Harm
A windshield crack does not constitute probable cause to stop a car for a violation unless the crack is so bad it creates a probable risk of harm (not just heightened risk), pursuant to ORS 815.020 (the unsafe vehicle statute). A windshield crack is not a violation of ORS 815.270 because that statute requires an obstruction extrinsic to the vehicle itself. Here, defendant was pulled over because of a crack that went all the way across the windshield and spiderwebbed on the passenger side, blocking defendant's view. Because the state did not establish a probable risk of harm, it did not establish probable cause for a stop. State v Anderson State v Anderson, 259 Or App ___ (2013).
Restitution - Court Limited By Charged Conduct/Admissions
It is plain error to impose restitution for conduct outside of what was charged by the state and admitted by the defendant. here, the state charged a theft on or about July 21, 2010 and defendant admitted to stealing more than a $1000 over a 16 day period. But the court imposed $43,000 in restitution over a 65 day period. Despite the issue being unpreserved, the court chooses to reverse as plain error because the gravity of the error is substantial and there was no danger that the trial attorney made a strategic choice. State v Dorsey, 259 Or App ___ (2013)
Pre-Mills Venue Challenges Should Be Remanded
Where defendant challenged venue as an element prior to State v Mills, the court of appeals will remand to the trial court for defendant to raise venue as a pretrial jurisdictional matter. State v Parsons, 259 Or App ___ (2013).
