Oregon Appellate Court 12-30-09

by: Abassos • December 29, 2009 • no comments

Read the full article for details about the following new cases:

• Theft by Selling Stolen Property - Proportionality
• Felon in Possession of a Firearm - Sufficiency Miranda - Compelling Circumstances
• Citation - Commencing Prosecution
• Conditional Relevance - Mandatory Judicial Finding of Requisite Facts
• Preservation - Motion to Suppress

Theft by Selling Stolen Property

Taking an item off the shelf and "returning" it to the store for a gift card is theft by receiving by selling stolen property rather than theft by deception. It is a felony Theft I for a $200.00 item if the crime is Theft by Receiving but a $750.00 cutoff for Theft by Deception. Defendant tried to return a $400.00 mixer. State v. Rocha. Per Ryan, the proportionality argument that could have been made:

"Three facts are worth noting. (1) The defendant was convicted of a felony. (2) At the time the defendant "stole" the item by taking it off the shelf, he was only guilty of a misdemeanor Theft by Taking (under $750). (3) The defendant could not have been convicted of two counts of theft because, per St v Cox and other case law, the two different thefts - theft by taking and theft by receiving/selling - are simply alternative theories of theft. In other words, it was one theft.

One theft, however, that was a misdemeanor when he committed it, that only became a felony after he "stole" it again. If they truly were two separate thefts, then maybe there wouldn't be a proportionality problem. But because it was one theft - two different theories - and one is a felony and the other a misdemeanor, I would have challenged imposition of a felony, especially if it resulted in prison time."

Felon in Possession of a Firearm

It is enough to get past an MJOA for felon in possession of a firearm that under the soft pillow where Defendant (a felon) just slept was a gun. A factfinder could infer that defendant knew the gun was there because he would have felt a metal object under his head. The Court does say it's a close call though. State v. Young

Miranda - Compelling Circumstances

A 15 year old murder suspect was in compelling circumstances requiring Miranda when she was interviewed for 2.5 hours at the police station by detectives who asked questions that assumed her guilt, accused her of lying, told her she needed to be honest and said they would soon "know everything" from the forensic evidence. This does not seem to be a close call for the Appellate Court and the tone is one of mild chastising of the Detectives and the trial court. Good case. State v. Machain

Citation - Commencing Prosecution

A citation is sufficient to commence prosecution, even if it gives a court date more than 30 days out, contrary to statutory requirement. The legislature did not intend the remedy for such an error to be invalidation of the citation. State v. Robison

Conditional Facts

When evidence is relevant only if an additional condition is proved, the trial court must make a finding as to whether that condition exists. Here, defendant sought to enter evidence that a sex abuse complainant had motive to lie because of an investigation against the complainant for a separate sex abuse case. The investigation would only be relevant if it was happening at the time of the accusation. Yet the trial court did not make that finding. Thus, remand for further findings. State v. Washee

Preservation

Defendant did not object to or argue one of the grounds on which the trial judge rejected defendant's motion to suppress. Because it was an independent ground for upholding the stop, defendant's argument on appeal was not preserved. State v. Corbin