Oregon Appellate Court 04-11-12
by: Abassos • April 11, 2012 • no comments
Summaries of the following cases below the break:
- Burglary II - A Storage Room in a Store is a Separate Building
- Encouraging Child Sex Abuse - Downloading is Arguably Duplication
- Compelling Prostitution - Offering Gifts is Not Compelling - & Prostitution is Not a Lesser Included of Compelling
- Free Speech - Camping on the Capitol Steps & The Debate Clause
- Restitution - Still No Right to a Jury
Burglary II - A Storage Room in a Store is a Separate Unit
The "employees only" storage room of a toy store was a separate unit of the store, and therefore a separate building for the purposes of ORS 164.205(1), Burglary II. The storage room had separate access (a camoflaged door), separate occupation (employees) and a separate function (storage). Thus, the fact that the toy store was open to the public is not relevant to the question of whether the "employees only" storage room was open to the public when defendant stole a lock box full of money. State v Macon
Encouraging Child Sex Abuse - Downloading is Arguably Duplication
A failure to grant defendant's MJOA, on the element of duplication in Encouraging Child Sex Abuse, was not plainly in error where defendant installed a file sharing program, searched for files related to child pornography and downloaded the files to his computer such that they would be available on his hard drive at a later date. This is factually distinguishable from prior cases (Ritchie and Barger) where defendants simply viewed pictures on the internet and the computer automatically saved a copy in the cache, a process that would be unknown to the ordinary computer user. State v Urbina
Compelling Prostitution - Offering Gifts is Not Compelling - & Prostitution is Not a Lesser Included of Compelling
Offering gifts and money in exchange for sexual contact is "plainly insufficient to support a conviction for compelling prostitution." See State v Vargas-Torres. Moreover, prostitution is not a lesser included of compelling prostitution. The two crimes are different in kind, not degree, because one applies to third party promoters and one applies to patrons. Thus, the conviction must be reversed. State v Urbina
Free Speech - Camping on the Capitol Steps & The Debate Clause
The rule that prohibits being on the State Capitol steps between 11 pm and 7 am does not violate Article I, Section 8 of the Oregon Constitution because it is speech neutral. It potentially regulates free speech but it also regulates non-speech like skateboarding. Which is no different than, say, the arson statute, since burning a draft card is protected speech without the arson statute itself being unconstitutional. It's also not true that enforcement of a speech neutral rule violates the constitution whenever it interferes with protected speech. Otherwise a protestor could shut down a highway at rush hour by standing in the middle of the road with a placard. However, if the motive in applying the law is to regulate speech, then it is unconstitutional as applied.
Here, it is not possible to know the motive for the enforcement because defendants' subpoenas for two legislators with knowledge of the motive were quashed pursuant to Article IV, section 9 of the Oregon Constitution, the Debate Clause: ". . . Nor shall a member for words uttered in debate in either house, be questioned in any other place." After a lengthy discussion of the Debate Clause, the court finds that the legislators did not have immunity under the Debate Clause because their speech was not legislative. It did not have to do with the potential enactment of legislation, but rather the enforcement of an existing rule. Because both the questions of free speech and free assembly are dependent on the question of motive, the court reverses and remands so that defendants can question the two legislators. State v Babson, et al
Restitution - Still No Right to a Jury
Despite 2003 legislation amending the restitution statute to require the full imposition of economic damages, a delinquent youth is not entitled to a jury trial on the question of restitution. Unlike in a civil trial, damages are limited to economic damages. To receive full damages the victim still must pursue a civil case. Moreover, the victim cannot enforce the judgment because the restitution award is in favor of the state, not the victim.
Because we conclude that the amendments to the statute did not affect the predominately penal characteristics of the restitution award--and instead arguably reemphasized the role of restitution in "correcting. . . behavior" and impressing upon the offender "the seriousness and cost of his offense," as recognized in Hart, id.--we conclude that juvenile court's order of restitution in a juvenile proceeding is penal, not civil, in nature.
Technically this opinion only applies to the juvenile restitution statute. But the reasoning in the opinion would mostly apply to the adult statute as well.
