Oregon Appellate Ct - Jan 22, 2015
by: Abassos and Frangieringer • January 22, 2015 • no comments
Theft I - Merger - ORS 164.055(1) Lists Ways to Elevate to Theft I, Not Separate Statutory Provisions
The variety of ways, listed in ORS 164.055(1), that the basic crime of theft can be elevated to theft in the first degree are not separate statutory provisions. Thus, multiple convictions for theft I based on different sub-sections of ORS 164.055(1) merge. Here, during the same criminal episode, defendant stole antiques worth more than $1000.00 and a gun. He was convicted of theft I for committing theft of property worth more than $1000.00 (164.055(1)(a)) and for committing theft of a firearm (164.055(1)(d)). Because those provisions are essentially different theories of theft I, similar to the different theories of Robbery II, the resulting convictions must merge into a single conviction for theft I. State v Slatton
Parole Consideration Hearings - No Right to Subpoena
Defendant had neither a Due Process nor a statutory right to subpoena witnesses to his parole consideration hearing. There is no statutory right because ORS 144.315, the statute governing parole consideration hearings, does not mention subpoenas and was enacted at the same time as (1) the statute for parole revocation hearings, which does give the right to subpoenas duces tecum and (2) the statute excepting the Parole Board generally from subpoena authorization. There is no state constitutional right because "it is axiomatic that Article I, section 10 is not a due process clause. There is no federal due process right to subpoenas because under the holding of Swarthout v Cooke, 562 US at ___ (2011), the ability to subpoena witnesses is not a requirement for a constitutionally adequate parole consideration hearing. Smith v Board of Parole. Smith v Mills.
Statute of Limitations - Facts Relied on to Toll the SOL Must Be Alleged in the Charging Instrument
The question for a court deciding a statute of limitations demurrer is whether it appears on the face of the indictment that the crime was committed within the time allowed: "Any facts relied on to toll the statute of limitations must be set forth in the indictment to survive a demurrer for failure to comply with ORS 132.540(1)(c). Also, the correct vehicle for the statute of limitations is a demurrer. State v Nistler.
Securities Fraud - MJOA - Investment Contract - Common Enterprise - Horizontal Commonality
For the purpose of figuring out whether an investment contract is a common enterprise for purpose of securities fraud under ORS 59.135, the pooling of investments in the form of proceeds of loans received from a group of investors whose interests are secured by the same land. Such a situation is a legally sufficient showing of horizontal commonality.
