Oregon Appellate Court 4-18-2012

by: Abassos • April 18, 2012 • no comments

Full summaries of the following cases below the break:

• Officer safety questions allowable during a valid stop
• Police officers may not comment on the credibility of a defendant.
• An exception to a jury instruction must be particular.
• Post-offense conduct may be used to upward depart.
• A diagnosis of sex abuse in the absence of physical evidence is inadmissible.

Officer Safety Questions Allowable During a Valid Stop

An officer may ask about drugs and weapons during a lawful stop, so long as it does not temporally extend the stop. Here, defendant was lawfully stopped for the violation of smoking at a Max station. During the stop, the officer asked defendant if he had any drugs or weapons on him. Such a question does not create an additional seizure, therefore it's constitutionally allowed. Extension wasn't at issue in this case because it wasn't preserved. State v Lamb

Vouching - Police Officers May Not Comment on the Credibility of the Defendant - Plain Error

A police officer may not testify about the credibility of a testifying defendant. In fact, no witness may testify about the credibility of another witness. Here, the officer testified that he believed defendant was being dishonest in his police interview. At one point, the officer testified that, according to his training, when a suspect says "I swear to God I didn't do it", it's a classic indication of guilt. Direct comments on credibility are plain error. Reversed. J. Edmonds concurs to urge the court to revisit the policies of plain error and preservation.State v Lowell

Preservation - An Exception to a Jury Instruction Must Be Particular

The court affirms because defendant excepted on the wrong basis to a jury instruction saying that defendant could be convicted of Theft by Receiving for "knowing or having good reason to know" the goods were stolen. Defendant objected on the following grounds: (1) the grand jury found actual knowing, so the jury couldn't convict on "reason to know" and (2) reason to know and "believing", from the standard instructions, means the same thing. Neither of these arguments suffices to preserve the objection that the instruction allowed the jury to convict defendant even if he did not know the goods were stolen. State v Dries

Upward Departure - Post-Offense Conduct May Be Used as a Basis for Departure

Nothing in the non-exclusive list of departure factors prohibits the use of post-crime conduct as a basis for durationally departing upwards. Here, defendant was convicted of escaping but upward departed for committing a residential burglary while on escape. Such a departure is not an error. State v Bennett

Per Curiams

A diagnosis of sex abuse in the absence of physical evidence is plain error. Reversed and remanded. Long dissent by J. Edmonds arguing against plain error reversals generally and against reversal specifically in this case. State v Pekarek