Oregon Appellate Court 6-6-2012

by: Abassos • June 6, 2012 • no comments

Same Criminal Episode - DV Assaults

Multiple assaults from a DV case arose from the same criminal episode because they had the same criminal objective: "defendant's objective of abusing the victim in the kitchen continued into the living room and eventually into C's bedroom as she attempted to escape his abuse." The fact that defendant may have gained an additional criminal objective during the final assault (preventing victim from taking her child) is of no import. The question is whether there is a single criminal objective that continues throughout the crimes. Because the crimes were all from the same criminal episode, the first two could not be used as priors for sentencing the final felony assault. J. Edmonds dissents, arguing that an additional criminal objective creates a new criminal episode. State v Witherspoon

Merger - ECSA - Child in a Photo is a Victim

Each child depicted in a video or photograph represents an individual victim for the purposes of whether separate counts of Encouraging Child Sex Abuse merge. "Each duplication of the visual recording 'constitute[s] a revictimization' of the child depicted." The court rejects the trial court's finding that opening up a series of files necessarily involves a "sufficient pause" where the evidence actually showed that the files all could have been downloaded at once. However, the court remands for the trial court to determine how many different victims were depicted and merge counts attached to the same victim. State v Reeves.

Plain Error Review - No Evidence to Support Restitution

The imposition of restitution in the absence of any evidence in the record to support such an award constitutes "plain error" and may be reviewed even though the issue was not preserved. State v Martinez

Notice-of-Rights Form is a Rule under the APA

The "notice-of-rights form" used by the Board of Parole and Post-Prison Supervision (The Board) constitutes a "rule" for purposes of the APA. The form is a rule because it's a statement of general applicability and sets out procedure and practice requirements. Therefore the form must be adopted in compliance with the rulemaking procedures of the APA. Because the rule was adopted in violation of the APA, it is unconstitutional. Smith v Board of Parole

Per Curiam Opinions

• Attempted Assault I and UUW merge - State v Zolotoff
• Possession of Two Firearms merge into a single Felon in Possession - State v Curnutte

The court also reversed 6 civil commitment cases without discussion. All state's concessions:

• State v D.U. - Multnomah County
• State v R.F. - Multnomah County
• State v C.K. - Multnomah County
• State v R.G. - Jackson County
• State v M.B. - Wasco County
• State v T.B. - Jackson County