Oregon Appellate Court - Feb 20, 2014
by: Abassos, Alarson and Jwithem • February 20, 2014 • no comments
Failing to Instruct the Jury on an Element is Plain Error
Both Rape I and Sex Abuse I require a culpable mental state as to "forcible compulsion". Failure to instruct the jury on an element of the crime, even where unrequested and unexcepted, is an obvious error warranting the consideration of a plain error reversal. Here, the court chooses to reverse because the testimony was in conflict as to what happened during the alleged crimes, and even if the jury believed the complainant that defendant subjected her to forcible compulsion, the defense was such that a reasonable juror could still believe that defendant did not know he was doing so. State v. Gray. 261 Or App __ (2014).
Stalking Protective Order - Expressive Conduct May Inform the Context for a Nonexpressive Contact
For the purposes of a stalking protective order application, angrily approaching a person with clenched fists while yelling homophobic slurs is a nonexpressive contact that reasonably caused the petitioner to fear he would be harmed. While the homophobic slurs may themselves be expressive, they create the context for understanding why the non-expressive conduct was objectively fear-inducing.
However, a vague invitation to fight ("Come down here motherfucker and I'll show you") does not rise to the level of an "unequivocal threat of imminent and serious personal violence" required of expressive conduct. D.W.C v. Carter. 261 Or App __ (2014).
Inventory Exception - Officer Must Have Lawful Authority To Seize
In order to conduct a lawful inventory, an officer must first be authorized to seize the thing to be inventoried. Here, the officer was not authorized to seize defendant’s backpack merely because leaving the backpack at the site of the arrest might expose the city to liability for potential damage to or loss of the backpack. That's an argument for a state's interest, but not a constitutional argument and particularly not an inventory argument. State v. Stinstrom, 261 Or App __ (2014).
Unlawful Possession of a Firearm - The Vehicle Must Be a Residence for the Place of Residence Exception
For purposes of ORS 166.250, Unlawful Possession of a Firearm, “place of residence” means a place where a person conducts daily living activities; a location’s proximity to one’s actual residence is irrelevant to the issue if such activities are not conducted there. Here, a gun kept in defendant's truck that was parked in his free-standing carport was not within his “place of residence” because he did not present evidence that he conducted such activities within the truck, or within the carport. State v. Clemente-Perez, 261 Or App __ (2014).
Preservation by the State
The state may only raise a new argument on appeal if the parties would not have presented materially different evidence on the issue at trial. Here, the state argued, for the first time on appeal, that defendant abandoned all privacy interest in his backpack by walking away from it and denying that it was his. At trial, the state argued that the search was an appropriate inventory search because the backpack clearly belonged to defendant. Because the record may have developed very differently if defendant had a chance to rebut the abandonment argument, it was not preserved for appeal. State v. Stinstrom, 261 Or App __ (2014).
Preservation - Argument Not Preserved if Merely a Component of a Separate Argument
For a claim of error to have been preserved for appeal, the specific argument brought on appeal must have been clearly raised at trial. Here, defendant argued on appeal that ORS 166.250, Unlawful Possession of a Firearm, requires that defendant be in the vehicle at the time of possession. Defendant argued at trial, in the context of the place of residence exception, "that the unlawful possession of a firearm statute was intended to criminalize the carrying of a concealed weapon in a car that was being driven, not one that was parked on the owner's property." Because the purported argument was merely suggested as a component of an entirely separate argument at trial, it was unpreserved. “The reason that the trial court did not address that argument is that the court reasonably did not understand defendant to have made it.” State v. Clemente-Perez, 261 Or App __ (2014).
