Oregon Appellate Ct - Oct. 28, 2015
by: Abassos, Alisa Larson-Xu and Cmaloney • November 1, 2015 • no comments
Unlawful Use of a Weapon – "Use" Includes Using a Weapon to Threaten Immediate Harm
The word “use” in ORS 166.220(1)(a) (unlawful use of a weapon) “refers both to employment of a weapon to inflict harm or injury and employment of a weapon to threaten immediate harm or injury.” Here, defendant held a loaded .22-caliber revolver in his hand, cocked it, and threatened his wife and son, by pointing the revolver at them. The Supreme Court's interpretation of the word “use” in State v. Ziska / Garza (decided while the appeal was pending in this case), forecloses defendant's argument that he didn't use the weapon. Using a weapon to threaten harm is use. State v. Smith, 274 Or App 562 (2015).
Reasonable Suspicion – Parking on a Gravel Pull Out Off Of a Public Road Does Not Provide Reasonable Suspicion of Trespass
It was not objectively reasonable for the officer to believe defendant was trespassing where the defendant had pulled off a public road and parked on the gravel just off the road. While the gravel pull out was private property, members of the public would generally understand that such an area on the side of a road is intended for vehicles to stop and park, without needing to permission to do so. Furthermore, the “No Trespassing” sign did not clearly apply to the pull out as it was on a tree near a forested area. Accordingly, the stop was not supported by reasonable suspicion and it was an error to deny the motion to suppress. Reversed. State v. Sjogren 274 Or App 537 (2015).
Expungement – Interests of Justice - Court Must Grant Expungement When Petitioner is Eligible and State Presents No Evidence
For one of the crimes listed in sec. 13 of the expungement statute, the court may only reject an otherwise eligible offense if there is clear and convincing evidence that granting a motion to set aside the offense would not serve the interests of justice. Here, defendant moved to set aside his conviction for Robbery III, an offense listed in ORS 137.225(13). The state objected, arguing that because the conviction was gang-related and the defendant was involved in another gang-related incident after the conviction, it would not be in the interests of justice to grant the motion. The trial court agreed with the state’s assessment and denied the motion in a written opinion. Because the state’s assessment of the incident was not evidence, and because the state did not present any actual evidence as to why the expungement would not serve the interests of justice, the court was required to grant defendant’s motion to set-aside. Reversed. State v. Carcamo-Tellez 274 Or App 508 (2015).
Fines and Fees – Ability to Pay - Unlike Attorney Fees, a Compensatory Fine is Not Susceptible to Plain Error Review When There's No Evidence of Ability to Pay
Under ORS 151.505(3), the state has the burden of proving that defendant “is or may be able to pay” attorney fees, and it is plain error for the trial court to impose attorney fees without finding that defendant has the ability to pay them. In contrast, to impose a compensatory fine under ORS 161.645 requires the court only to consider the defendant’s financial resources in deciding whether to include a fine (and its amount) in the defendant’s sentence. Consequently, the imposition of a compensatory fine is not susceptible to pain error review. Here, defendant did not object to the imposition of a fine and attorney fees. The record was silent as to defendant’s ability to pay. The Court of Appeals held that the trial court did not error in imposing the fine, but it was plain error to impose attorney fees. State v. Smith, 274 Or App 562 (2015).
