Oregon Appellate Court 4-25-2012

by: Abassos • April 25, 2012 • no comments

Vehicle Search - Third Party Consent

On remand from the Oregon Supreme Court, the court finds that the police did not have valid consent from defendant's girlfriend to search defendant's van. The girlfriend had been left in charge of the van as defendant was getting arrested and after he had declined consent to search. He instructed her to lock the van, take care of the dog and wait for him to get back. Under Article I, Section 9, such limited authority clearly does not extend to the authority to grant consent to a search. State v Kurokawa-Lasciak III

Compensatory Fine - Fair Market Value

At issue in this case is the fair market value of the shoes stolen from the owner of a shoe store that went out of business. The court imposed as a compensatory fine the amount for which the shoes had been purchased by the victim on the wholesale market. This was an appropriate amount because (1) the victim testified that the wholesale price was the value of the shoes at the time they were stolen; (2) victim planned to resell the shoes on the wholesale market; (3) the shoes were less than a year old with no testimony that they had lost value. "In sum, there was evidence in the record to support the trial court's finding that the market value of the shoes was what [victim] had paid for them. . ." State v Onishchenko

No Violation of IAD or Constitution When Defendant Was Mostly to Blame for 19 year Delay Between Trial and Sentencing

The court rejects defendant's arguments that his rights under the constitution and the IAD were violated when his sentencing took place 19 years after his trial. Defendant had been serving a sentence in Washington the entire time. His rights under the Interstate Act on Detainers weren't violated because he never formally requested transfer to Oregon. In fact, he actively fought transfer and formally requested dismissal of his Oregon case. Defendant's rights under Article I, Section 10 of the Oregon constitution weren't violated because the state did everything it could to try to get him back. That is, very little of the time was attributable to the state. Defendant's rights under the Sixth Amendment weren't violated because defendant did not formally request to be sentenced in Oregon until 16 years after his trial, at which point any existing prejudice (e.g., loss of the transcript) had already occurred. Defendant's Due Process rights weren't violated because despite there being prejudice, defendant was "culpable" in his delay. State v Lewis (aka Rhino)

Southard - Plain Error - Non-Diagnosis

Testimony from a CARES nurse regarding her experience evaluating children who were intoxicated at the time of alleged abuse was not plain error, under Southard. Neither is testimony that the nurse gave complainant's father recommendations for the child's health and safety. Also, multiple counts of sex abuse merge when they're violations of the same statute, part of the same criminal act, and involve the same victim. Remanded for resentencing. Per Curiam. State v Williams

Other Per Curiam Opinions

• State v. Harrison - Merger of Assault IV and Assault I
• A145690 State v. M. M.- Civil Commitment
• A148535 State v. J. G. - Civil Commitment
• A148932 State v. E. B. - Civil Commitment
• A149908 State v. L. B. T. - Dependency - Permanency Plan Lacked Necessary Findings

Cases Affirmed Without Opinion

• Arceo, Luis Antonio v. Coursey (A148743)
• Bowman, Keith Laconte v. Nooth (A148992)
• Callicott, Robert B. v. State of Oregon (A146306)
• Dominguez, Jose L. v. Coursey (A147222)
• Hogue, Darren L. v. Nooth (A147997)
• In the Matter of C. D. H., Alleged to be a Mentally Ill Person. State v. C. D. H. (A146998)
• In the Matter of D. S. W., Alleged to be a Mentally Ill Person. State v. D. S. W. (A148097)
• In the Matter of the Compensation of Sanchez, Daniel L., Jr., Claimant. Leonard Michael - Jerry's Taxi Service v. Sanchez et al (A148619)
• Lane, Richard Allen v. Nooth (A148994)
• Mete et al v. Edwards et ux (A144914)
• Moya, Jose Manuel v. Nooth (A148993)
• Onofre, Cirilo Nava, aka Nava, Cirilo Onofre v. Nooth (A149529)
• Standley, Justin E. v. Nooth (A149493)
• State v. Back, David William (A146543)
• State v. Bennett, Thomas John (A147886)
• State v. Callen, David Randolph Duane (A147100)
• State v. Cranford, Aaron Dee (A148609/10)
• State v. DeWolfe, Carri Lea (A149628)
• State v. Diaz, Peter John (A148447)
• State v. Garza, Jesse, Jr. (A148960)
• State v. Gonzales, Benjamin Ruben (A146692)
• State v. Gray, Billy Jack (A148607)
• State v. Henry, Steven William (A146446)
• State v. Howard, Kevin Mark (A147956)
• State v. Juran, Ryan William (A148356)(A148360)
• State v. Lowrance, Jon Charles (A146978)
• State v. Mata, Gabriel Juan (A148307)
• State v. McIntire, Andrew J. (A148147)
• State v. McLaughlin, Sandra Jean (A147079)
• State v. Mestizo, Reynaldo Vicente, aka Mestizo, Reynaldo Vincente (A147075)
• State v. Papineau, Keith R. (A146106)
• State v. Perry, Steven Loren (A146949)
• State v. Phillips, Shawn Quincy (A143669)
• State v. Pooler, Danovan Maurice (A146083)
• State v. Velez, Francisco Simon, Jr. (A146669)
• Tate, Jeremy Eugene v. Nooth (A148975)
• Tweed, Andrew Lawrence v. Nooth (A149492)
• Westcott, Sean Gordon v. Premo (A148029)