Oregon Appellate Court - March 5, 2014
by: Abassos, Alarson, Cmaloney and Alex Collins • March 5, 2014 • no comments
Defendant’s pre-Mills challenge to venue through a MJOA does not waive a post-Mills challenge to venue
In State v. Mills, the court held that under Article I, section 11, of the Oregon Constitution proper venue is not a material allegation that the state is required to prove beyond a reasonable doubt at trial. Rather, a criminal defendant has a waivable right to object--before trial--to improper venue. To avoid waiving the right a defendant must put venue at issue in a pretrial motion. In the instant cases, the defense counsel challenged venue through MJOA before State v. Mills, 354 Or 350 (2013), was decided. The court reverses and remands both cases to give the defendants an opportunity to object to venue as prescribed by Mills. State v. Weilert, 261 Or App ___ (2014);State v. Burton, 261 Or App ___ (2014).
An error in imposing restitution requires a remand for resentencing
When the appellate court determines there to be an error in imposing restitution, the case will be remanded for resentencing. At the resentencing, the court may consider imposing alternative fines or sanctions. Here, the trial court erred by imposing restitution more than 90 days after judgment, and without giving defendant an opportunity to be heard. Thus, the case gets remanded for the court to start over with sentencing (presumably without the option of restitution.) State v. Lopez, 261 Or App ___ (2014).
Civil Compromise – Satisfaction of Insurance Company Irrelevant If Not Directly Injured
The civil compromise statutes do not require that an insurer acknowledge satisfaction of its injuries before a trial court may allow a civil compromise. In so concluding, the court looked to the legislative history of the words “person injured”, “aggrieved party”, and “victim” used in the civil compromise, restitution, and anti-merger statutes, respectively, to understand if insurers were included in the scope of those words. While the restitution statutes’ case law and history were originally similar to the civil compromise statutory language, the court refused to apply similar meanings to the words because the legislature expressly expanded the definition of “aggrieved party” to include insurance companies and has not done so with “person injured”. Instead, the court found that the anti-merger statutes’ case law more helpful, which has defined “victim” as the precise person who suffers harm from the crime, not as those who suffer from the consequences of the criminal act. Determining that “person injured” in the civil compromise statute pertained only to the person directly injured by the criminal acts—in this case, criminal mischief and harassment—the court held that only the underlying victim of those crimes needed to acknowledge satisfaction of the injuries in order for the trial court to dismiss the charges. State v. Ferguson (Feb. 2014).
Lack of a custody order is not sufficient for continued jurisdiction absent proof of continued danger
To continue the juvenile court’s jurisdiction over a child after it has been challenged, the Department of Human Services (DHS) must prove - by a preponderance of the evidence - that the conditions on which jurisdiction is based continue to exist to the same degree that they did when jurisdiction was initially asserted. Absent such proof, lack of a custody order alone is not grounds on which to continue jurisdiction. Here, father does not have custody of child A, and had another child with a new wife. DHS allowed the newborn to stay with the newlyweds. The father then brought an action to get custody over child A. The trial court denied his attempt based on the fact that the wife had her two children from a previous relationship taken due to: the condition of her home, her drug use, and her domestic violence issues. The court noted that she had yet to seek custody over the two children. The court purposely did not address the fact that DHS recently gave them custody over their newborn. The court of appeals grants custody, holding that the home condition is no longer an issue, and DHS did not present evidence that the wife’s drug use as well as domestic violence has continued. The court recognizes a previous holding that lack of a custody order would only be a reason for continued jurisdiction if the father’s lack of a custody order would present some danger to the child – which is not the case here. Department of Human Services v. D.A.S. JR. (Feb. 2014)
Discovery: No Duty on State to Acquire and Disclose DOC Records
If the defense requests records of an inmate’s phone conversations that are not in the prosecutor’s physical possession, the prosecutor does not have a duty to acquire the records and give them to the defense. The court acknowledges that some state bodies, such as the Child Services Division (CSD), are within the “control” of the prosecution for the purposes of ORS 135.815. State v. Warren, 308 Or 428 (1987). However, since the defense does not cite any statute or case law placing a duty on the DOC to investigate criminal activity or to assist law enforcement agencies by disclosing to them inmate communications, the court holds the DOC not to be within the “possession or control” of the prosecution. Thus, absent any circumstances suggesting that the prosecutor is in “control” of the recordings, or that the DOC is acting as an “arm of the prosecution” – the prosecutor has no duty to disclose the recordings. State v. Daniels (March, 2014)
