Oregon Appellate Court 12-07-11
by: Abassos • December 6, 2011 • no comments
Read the full article for details about the following new cases:
- Burglary I - Aid and Abet
- Confrontation Clause - Lab Report - Notice and Demand
- Rape I - Forcible Compulsion
- Probation Violation - Extension of Probation
- Probation Conditions - Forfeiture
- Requesting Consent to Search is Not Interrogation
- Dependency - Jurisdiction
Contents |
Burglary I - Aid and Abet
"Even though actions after the commission of a crime cannot alone constitute aiding or abetting, they may be used as evidence that earlier activities were aiding and abetting." Here, the evidence supported an inference that defendant collaborated in the actual burglary by driving the principal to the scene, waiting for her outside the house while she committed a burglary, watching as she deposited the stolen items into the car, driving the stolen items away from the scene and attempting to evade police. State v. Holcomb
Confrontation Clause - Lab Report - Notice and Demand
Notice and demand statutes, which require a defendant to file an advance objection to a lab report in the absence of the lab technician who wrote the report, were approved by the U.S. Supreme Court in Melendez Diaz. Such a statute does not shift the burden to the defendant. They merely create a procedure for defendant to raise the objection that he is required to raise at some point even without the statute. ORS 475.245(5) requires defendant to give notice to the DA at least 15 days prior to trial, if the defendant wants the lab technician to testify. State v. Glass
Rape I - Forcible Compulsion
To constitute forcible compulsion, an implied threat of force must be communicated in some way. The state here was able to point to no conduct on the day of the incident that would constitute either physical force or a threat. The state argued that forcible incidents from several years prior created an implied threat. The court rejects that argument and remands for resentencing. State v. Magel
Probation Violation - Extension of Probation
A court may extend probation at a violation hearing, even absent a violation, if it finds that the purposes of probation are not being served and would be helped by extending probation. Thus, the court does not decide in this case whether defendant's failure to inform his P.O. of his changed mailing address was a violation, because the failure to inform his P.O. was "a deceiving thing" that would be best addressed by extending probation. State v. Laizure
Probation Conditions - Forfeiture
The court was not legally allowed to order the forfeiture of defendant's camera, used to violate the stalking order in this case. ORS 161.045(4) provides, "No conviction of a person for an offense works a forfeiture of the property of the person, except in cases where a forfeiture is expressly provided by law." That statute precludes forfeiture from being imposed as a condition of probation because there is no other statute that expressly provides for forfeiture as a condition of probation. Per Curiam. State v. Olson
Requesting Consent to Search is Not Interrogation
A request for consent to search is not interrogation. Thus, it did not violate the constitution for officers to ask defendant for consent to search after defendant was in custody and had requested counsel. Also, because police read defendant his Miranda rights and repeatedly told him that he did not have to give consent, it was clear that defendant's will was not overborne by coercive police conduct. "Accordingly, defendant's consent was voluntary under Article I, Section 9 and the Fourth Amendment". State v. Hatfield
Dependency - Jurisdiction
The evidence was insufficient for jurisdiction where mom's cognitive disabilities prevented her from independently parenting but she also had help from another adult who was willing to supervise and support her:
DHS bears the burden of proving facts sufficient to justify jurisdiction. Thus, in this case, DHS had to prove that, under the totality of the circumstances, there was a reasonable likelihood of harm to the children's welfare. It failed to do so. As mentioned, DHS's argument at the jurisdictional hearing was that the juvenile court could take jurisdiction over the children because mother could not parent them independently. But, as mother correctly argued at the hearing, there is no legal requirement that a parent be able to care for his or her children independently.
