Oregon Appellate Ct - April 2, 2014
by: Abassos, Alarson, Cmaloney and Alex Collins • April 4, 2014 • no comments
2nd degree burglary – a structure can be a “building” absent any modification to accommodate the public
A modification of a structure that creates access to the public is relevant in determining whether a structure has been adapted for business purposes, but it is not dispositive. Here, defendant stole items from a tractor trailer that the owner used to store inventory and business records. The court holds that although the trailer is not open to the public, it is still adapted for “carrying on business therein” under ORS 164.205 (1) because it: had been immobile for the past 18 years adjacent to the victim’s military surplus business for storage of inventory and records, was insulated to protect against moisture, and had “army surplus” painted on the side. State v. Lewellen 262 Or App __ (2014).
Preservation – OEC 404 Issue Not Preserved By OEC 403 Argument
In a case about sexual abuse, the defendant’s step-daughter testified regarding a previous incident of sexual abuse that occurred in CA where the charges had been dropped. The defendant objected under OEC 403, stating that the testimony was overly prejudicial to the defendant. However, on appeal, the defendant renewed the objection under OEC 404 and State v. Johnson, 313 Or 189 (1992), which states that those acts must have been proved by a preponderance of the evidence to be admitted. The court holds that because the state was not put on notice of this argument and its burden to prove up the OEC 404 requirements, it would be unfair to the state to hold the objection as preserved.
Incriminating Statements – 6th Amendment Rt to Counsel Extends to Factually Related Criminal Episodes
Once a person is charged with a crime, the 6th amendment right to an attorney's presence extends to the investigation of factually related criminal episodes where the state may glean incriminating evidence or statements. Here, defendant was charged with sexual abuse of a member of defendant’s family. While in jail and without notifying defendant’s counsel, the investigator interviewed the defendant regarding abuse of two other young females—also members of defendant’s family. The defendant made incriminating statements. The defendant’s counsel was entitled to notification of this interview because the criminal episodes were factually related — all similar conduct occurring at defendant’s home, against young females related to defendant, and investigated by the same detective. Consequently, defendant’s statements required suppression. State v. Prieto-Rubio 262 Or App __ (2014).
