OR Appellate Ct - Dec. 26, 2013
by: Abassos • December 26, 2013 • no comments
Former Fugitive Doctrine - Ten Year Absence
An appellate court has the inherent authority to dismiss an appeal where a defendant fled the jurisdiction, thereby interfering with the appellate process such that the government would be prejudiced in locating witnesses and presenting evidence at a retrial after successful appeal. Here, defendant was found guilty of Sex Abuse I and, prior to sentencing, fled to California where he lived under an assumed name. After 6 years in California defendant was arrested on new charges and given a lengthy prison sentence. Oregon was only able to get defendant back temporarily for sentencing in 2010. The state would be prejudiced because (1) it would be difficult to locate the 21 witnesses the state called at the first trial; (2) the jury might react differently to victims and witnesses in their mid-twenties than they would to ones in their mid-teens (3) it would be inequitable to cause the state great expense to bring defendant back from California where defendant caused his absence; and (4) if allowed an appeal, defendant would benefit from more favorable case law than existed ten years prior, a benefit that should not be received in exchange for flouting the system.
Also, the Interstate Act on Detainers does not apply to situations where the defendant has already been convicted. It only provides for transfer of prisoner between states "for trial". Thus, the IAD did not compel California to return defendant to Oregon. State v Sills, 260 Or App ___ (2013)
Murder by Abuse - A Person Can Be Dependent Based on Transitory Injuries
A victim can be a "dependent person" under ORS 163.205(2)(b) (Murder by Abuse), based on transitory injuries. In other words, a physical disability is any physical issue that leave a person dependent, not the sort of sustained or permanent disability that might be referred to as a handicap in modern parlance. Here, defendant assaulted his girlfriend, leaving her incapacitated and in his care. If he had sought medical care right away she likely would have lived. He did not and she died from the assaultive injuries. Since the victim was dependent on the defendant for at least 2 days before she died, a jury could reasonably find that she was a "dependent person" for the purposes of Murder by Abuse. State v Fitzhugh, 260 Or App ___ (2013).
Unlawful Possession of a Firearm - A Campsite Can Be a Place of Residence
ORS 166.250(1)(a), unlawful possession of a firearm, criminalizes carrying a concealed firearm. There is an exception for doing so within one's place of residence. The term "place of residence" in ORS 166.250(2)(b) can include temporary residences, like a campsite. And, it can include outdoor areas, like the curtilage of a house or the campfire in front of a tent, if those "areas form part of the place in which a person "actually lives." Here, defendant had rented a campsite for a week. He was in possession of a concealed pistol while standing in front of his tent. Because the campfire area outside of one's tent is where one eats, drinks and regularly conducts activities of daily living, it is part of the residence. Accordingly, defendant was entitled to have the jury instructed as to the place of residence exception to unlawful possession of a firearm. State v Wolf, 260 Or App ___ (2013).
