Oregon Appellate Court 11-09-11
by: Abassos • November 8, 2011 • no comments
Read the full article for details about the following new cases:
- Preservation - Prior Bad Acts
- Search Warrant - Stale Facts
- Attempted Rape III - Intent to Have Intercourse
- Attorney Fees - Sentencing on Remand
- Delinquency - School Search - Consent
- UUV - Passenger - Probable Cause for Arrest
Contents |
Preservation - Prior Bad Acts
Defendant objected to the admission of prior DV charges in his current DV trial on the grounds of categorical Due Process and a Johns analysis. However, a categorical Due Process objection does not preserve a particularized argument for the case at hand. And, more importantly, an argument that the Johns factors dictate exclusion, does not preserve an argument that intent isn't an issue in the actual trial. State v. Jones
Search Warrant - Stale Facts
Facts in a search warrant which are stale with regard to perishable evidence may not be stale for non-perishable evidence. Here, the search warrant was based on (1) the fact that six weeks prior, an 11 year old friend of defendant's son had seen 3 marijuana plants and grow lights in defendant's shed, and (2) various averments by the officer regarding grow operations. While there was not probable cause to believe the marijuana plants would still be in the shed six weeks later, there was sufficient evidence to believe the grow lights would still be there.
In the end, this is really a preservation case. The court says the defendant could have argued that, regardless of the heat lamp, "suppression of the marijuana plants was nevertheless required because [the] affidavit failed to establish probable cause to search for and seize that evidence." Instead, the defendant argued that the heat lamp was not evidence of a crime and, therefore, there was no basis to believe that any evidence of a crime would be found. However, the court says, otherwise legal items become evidence of criminal activity all the time. While there was probable cause to believe that evidence of a crime would be found, there wasn't evidence to believe that marijuana would be found and, thus, a search for marijuana would not have been supported by the affidavit. State v. Ulizzi
Attempted Rape III - Intent to Have Intercourse
Where the 65 year old defendant took the 14 year old victim to a remote clearing and tried to kiss her, lift up her shirt and get her to touch his penis, it was a reasonable jury inference that the defendant intended to have sexual intercourse. Defendant's argument was that there was literally no evidence of an intent to engage in that particular sexual act. The court dispenses with that argument, saying that it has always "allowed jurors to infer the defendant's intent to engage in sexual intercourse based on unwanted sexual advances that might also be consistent with other sexual offenses." It was also a substantial step, sufficient for attempt, that defendant drove the victim to a remote area and made sexual advances. State v. Hennegir
Attorney Fees - Sentencing on Remand
A court may impose attorney fees for a resentencing on remand. Even, as in this case, where the PCR court ordered that "all other terms and conditions of the original Judgment to remain the same." The newly incurred costs of resentencing do not affect the original terms and conditions of the Judgment. And, in any case, ORS 151.505(1) provides authority to impose such costs at the conclusion of a case, a point in time which occurs at a resentencing where the case is back from post-conviction proceedings. State v. Young
Delinquency - School Search - Consent
Despite there being almost no evidence of consent, the trial court's finding of consent is "conclusive" where the youth said on direct that it was his choice to empty his pockets. He then recanted and said the opposite. But the court is allowed to believe whatever testimony it thinks is most credible. It seems clear to me that the youth was confused by the whole line of questions. The lesson from this case is to prep clients well before they testify. State v. MWH
UUV - Passenger - Probable Cause for Arrest
There was probable cause to arrest defendant passenger for UUV where the officers know that the car is stolen, it's being driven with a shaved key and, just previously, the car had been observed recklessly driving:
defendant's presence in the stolen car could have been explained under a variety of scenarios that did not involve his knowledge that it was stolen. None of them, however, is more likely than the scenario that the officers believed to have occurred: defendant and his friends had been joy-riding in a car that they all knew was stolen.
