Oregon Appellate Ct. - July 30, 2014
by: Abassos, Lisa Fitzgerald, Evan Ottaviani and Tim OConnor • July 30, 2014 • no comments
Hearsay Prejudicial, for Appellate Purposes, where Credibility is a Central Issue at Trial
Admitting the hearsay testimony of defendant's passenger, which was central to both parties’ theory of the case and bore directly on defendant’s credibility, was not harmless error. Methamphetamine convictions reversed and remanded; remanded for sentencing; otherwise affirmed. State v. Cook, 264 Or App ___ (2014).
Sexual Abuse III— Mens Rea for Lack of Consent is at least Criminal Negligence
As stated in State v. Wier, lack of consent is a circumstance element of third-degree sexual abuse under ORS 163.415 and requires a culpable mental state of at least criminal negligence. 260 Or. App. 341, 317 (2013). In this case, the defendant proposed a jury instruction that described the crime as requiring knowledge as to the lack of consent. The instruction was declined by the trial court. Affirmed. State v. Anderson, 264 Or App ___ (2014).
Stops-Conversationally Requesting and Verifying a Person’s ID is Not a Stop
A conversation does not become a stop merely because the officer gathers identifying information and runs a LEDS check. Here, no stop took place because the officer’s actions in writing down the defendant’s information were less restrictive than in State v Backstrand, where there was no stop. The officer in Backstrand took physical possession of the defendant’s identification for a short time for verification. The officer’s demeanor and questions did not create a stop because they were less coercive than in State v Anderson, where there was no stop. Here, the tone was conversational, there was no direct reference to criminal activity and there was only one officer. In Anderson multiple officers questioned a driver and passenger, during the execution of a search warrant, as to their personal information and their connection with the active investigation. Affirmed. Note: footnote two in this case specifically leaves open the Thompkin line of cases holding that reasonably knowing you are the subject of an ongoing criminal investigation transforms an encounter into a stop. State v. Dierks, 264 Or App ___ (2014).
