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, 268 Or App 556 (2015).

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, 268 Or App 457 (2015). Smith v Mills, 268 Or App 454 (2015).

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, 268 Or App 470 (2015).

Criminal Mischief III - Tamper Requires an Adverse Effect to the Property

“For the purposes of criminal mischief III ("tampers or interferes with property of another"), ‘tampers’ requires conduct that has an adverse effect on the property or its use.” Here, defendant chained another person’s vehicle to his own and moved it approximately 20 feet, resulting in damage to the bumper. The defense was that defendant knew he was moving it but he did not intend to damage the property. Because tampering requires more than just moving property, intent to damage is the same as "knowingly tampering", the words used in the charging instrument. Thus, the trial court's instruction that changing property by itself was sufficient was in error because it wrongly implied that anyone who has knowingly moved another's property has tampered with it, regardless of harm. Note, however, that it's not clear that this case comes out the same way if the crime was charged as "interferes" rather than "tampers". Also, the criminal mischief III statute does not seem to require that a person know or intend an adverse effect to the property; the only articulated mental state for the crime is intent to cause substantial inconvenience. Intent to cause damage raises the crime to criminal mischief III. This case would seem to arise from idiosyncratic choices in charging. State v. Lee, 268 OR App 587 (2015)

Best Evidence Rule - Testimony About a Video in Lieu of the Actual Video is Inadmissible

In accordance with the Attorney General's concession, the court finds that it was error to allow a Tri-Met officer to testify about a video without introducing the video itself. The error was not harmless because the video was the state's strongest evidence of intent, the only issue at trial. The video showed defendant striking and breaking the window of a Max train. State v Urbaschiak, 268 Or App 609 (2015),

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. State v Nistler, 268 Or App 470 (2015).