Oregon Appellate Court - July 11, 2012
by: Sduclos • July 11, 2012 • no comments
Criminal Mistreatment - Knowledge of Result of Failing to Provide Medical Care Is Not Required
Defendant's proposed jury instruction for criminal mistreatment that required the jury to find the defendant "acted with knowledge that his *** act or failure to act would bring about the death of [victim]" was not a correct statement of the law because criminal mistreatment does not require that the failure resulted in death. Because the gravamen of the offense of criminal mistreatment is the failure to provide necessary medical care, there was no requirement that the failure would lead to any particular result. The court expressed no opinion as to whether knowledge was required with respect to failing to provide medical care.
Motion in arrest of judgment was not the proper vehicle to raise an as-applied constitutional challenge where it required the court to consider extrinsic facts, not contained on the face of the indictment, related to defendant's religious practices. State v. Worthington.
Extension of Stop - Facts indicating that individual might be associated with illegal activity does not give rise to reasonable suspicion
Visiting an apartment suspected of drug activity, leaving the apartment after only a short time and accompanying a person known to associate with drug users and dealer does not give rise to reasonable suspicion to justify an extension of a stop. All these facts are purely associational and do not show that defendant was engaged in illegal conduct. In addition, defendant's probationary history for a past drug crime was of minimal objective value.
Finally, Defendant's consent to search her car did not attenuate the unlawful police conduct because she was still illegally detained at the time. State v. Bertsch.
Reasonable Suspicion - Particularized to Individual Gang Member
Reasonable suspicion must be 'particularized to the individual [to be seized or searched] based on the individual's own conduct.' Here, the officer's training and experience was that the neighborhood had a high incidence of gang violence in response to rival gangs' graffiti tagging and that many gang members carry weapons. The officer stopped two men, including the defendant, who were illegally crossing the street. Defendant admitted he was a gang member, and said he was in a 'neighborhood patrol' responding to a 'call' about tagging. He also pointed out a fresh tag from what the officer knew was a rival gang. After running defendant's name, the officer asked for consent to do a pat-down, extending the stop. The appellate court held that the officer had reasonable suspicion to suspect that the defendant possessed a concealed weapon, and there was no unlawful extension of the traffic stop. State v. Morfin-Estrada.
DUII - Cross-Examining Officers Based on NHTSA Manual
Where a DUII defendant seeks to impeach officers using the NHTSA (National Highway Traffic Safety Administration's) field sobriety manual, OEC 706 does not require that the witness being cross-examined be personally familiar with the manual if its reliability is established in another way. The evidence (1) was not hearsay because it was for impeachment, (2) had proper foundation because one deputy acknowledged that the manual was authoritative, and (3) was relevant to the defense that the defendant's prescribed ADHD medicine, Concerta, did not impair his driving. State v. Morgan.
Restraining Order - Imminent Danger
A restraining order may not be granted unless the petitioner is in imminent danger. Here, petitioner had been physically abused by respondent a decade prior and, because of a letter to petitioner and recent phone contact with a friend, petitioner was legitimately afraid. But because neither of the contacts were threatening, they presented no basis from which to infer imminent danger. SMH v. Anderson
Speedy Trial - DUII Diversion
Where defendant moved out of state for a DUII diversion and then failed to complete diversion, it was enough for the state to mail defendant a letter at his last known address and enter the arrest warrant in LEDS. The state was not required to call defendant at his last known number. Defendant was aware that if he did not complete diversion the formal DUII case would proceed. Thus, the 6 year delay between failed diversion and trial could not be attributed to the state. State v. Gonzales-Sanchez.
Forfeiture - Proceeds of Prohibited Conduct Includes Lotto Winnings
Lottery winnings are subject to criminal forfeiture when they are the "proceeds of prohibited conduct." Here defendant purchased a winning lottery ticket and $11,000 worth of groceries and sundry items using a credit card issued in the name of her boyfriend's deceased mother. Defendant presented herself as the mother, using an identification card with defendant's photograph and the mother's name while making the purchases.
Under the Excessive Fines Clause, it is not excessive to require forfeiture of all lottery winnings, even if the winnings exceed the statutory maximum fine of the prohibited conduct that led to the acquisition of the winning lottery ticket. Because forfeiture of winnings reduces the defendant to the state she was in prior to the criminal activity that led to her winnings, the punishment does not inflict a net loss and is thus, not excessive. Here, even though the combined maximum fine for charges against defendant totaled $500,000, the total $960,000 winnings were forfeited as gains directly proceeding from defendant's criminal conduct. State v. Goodenow.
