Oregon Appellate Ct - April 2, 2014

by: Abassos, Alarson, Cmaloney and Alex Collins • April 4, 2014 • no comments

Burglary II – A structure Can Be a Adapted for Carrying on Business Absent Any modification to Accommodate the Public

A structure is a building, for burglary purposes, if it has been adapted for business, regardless of whether the particular business use is public or private. ORS 164.205. Here, defendant stole items from a trailer used to store business records and inventory. The court holds that although the trailer was not open to the public, it was still adapted for “carrying on business therein” because it:

• had been immobile for 18 years adjacent to the victim’s military surplus business
• was used during that time for storage of inventory and records
• was insulated to protect against moisture
• 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. State v. Andrews 262 Or App __ (2014).

Incriminating Statements – Article I, Sec. 11 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).

Prior Bad Acts to Prove Identity Require a Signature Element Only Attributable to the Accused

Under OEC 404(3), prior bad acts are admissible to establish identity when there is (1) a very high degree of similarity between the charged and uncharged crimes; and (2) the methodology is so distinctive so as to earmark the acts as the handiwork of the accused. Here, someone stole a car, tried to evade the police, and reversed into a patrol car after being boxed-in by the police. The court held that although these two sets of crimes bear a resemblance, there was no signature element that was so distinctive that it earmarked the acts as the handiwork of the accused. Admitting the evidence of the defendant’s prior bad act to prove his identity was not harmless. State v. Arnold 262 Or App __ (2014).

Exclusionary Rule Doesn't Apply to Evidence Discovered for Reasons Unrelated to Illegality

If, during a traffic stop, an officer makes an inquiry unrelated to the traffic stop, the state must prove that the unrelated inquiry occurred during an unavoidable lull. The defendant must then prove the existence of a minimal factual nexus between the evidence sought to be suppressed and prior unlawful police conduct. Here, an officer stopped the defendant for speeding and asked the defendant about the whereabouts of a wanted person. It was disputed if the officer asked the defendant about the wanted person immediately when he contacted the defendant, or after the officer asked for the defendant’s license. However, when the officer asked for the defendant’s license he saw the defendant remove her license from a tin which also contained a baggie that he believed had methamphetamine residue on it. The court held that defendant did not show a minimal factual nexus. The officer’s question about the wanted person had no causal relationship to the discovery of the methamphetamine. State v. Peters 262 Or App __ (2014).