Oregon Appellate Court May 20, 2012
by: Sduclos • June 20, 2012 • no comments
Reasonable Suspicion - Association of Passenger with Driver Not Enough
Based on the totality of circumstances, the officer did not have reasonable suspicion to stop a passenger based on nervous fidgety demeanor and association with a driver known by the officer to be in violation of probation. Reasonable suspicion based on officer safety was not enough to detain passenger because backup officers had arrived and the driver had been arrested. State v. Holdorf.
MJOA - Preservation
A general motion of acquittal does not preserve a specific issue: in order to make a proper MJOA, the trial attorney must identify the purported deficiency in the State's case. Where the defendant was convicted of 14 felony counts, including the disputed 3rd-degree assault charge, discretion was not improper because the error was grave (due process considerations), and the State likely could not have corrected the error even if the defense attorney had properly moved for MJOA. State v. Reynolds.
Second-Degree Robberies Merge
Multiple verdicts of second-degree robbery merge when they arise from the same incident with the same victim. Just because second-degree robbery can arise from alternative circumstances, appearing in two different paragraphs in ORS 164.405(1), elevating third-degree robbery to second-degree robbery, it does not create two statutory provisions such that the violations may be separately punished. However, first degree robbery does not merge with second-degree robbery. State v. Powell.
Sex Pen I - Slight Penetration is Enough
"Slight penetration" of the vagina is sufficient to commit the offense of sexual penetration, ORS 163.411. There is no textual support for defendant's argument that the "hymen" must be penetrated before a person commits the offense of sexual penetration under ORS 163.411. The relevant issue is "between touching between the labia and penetrating beyond that to the vagina". State v. Hoover
Vouching - Mistrial Required For Southard Error
Trial court abused its discretion by denying defendant's motion for a mistrial when expert medical testimony supporting the allegations was no more than an assessment of complainant's credibility. . Here, where the diagnoses of sexual abuse were based on victim's statements alone, limiting instructions given a full day after expert testimony were insufficient to limit prejudice when experts had given their opinions on victim credibility as credentialed experts. State v. Arreola
Dependency > Past Child Sex Abuse Doesn't Automatically Establish Present Danger
DHS did not prove a current risk of serious harm to children where it relied on father's past disclosures of child sexual abuse as their basis for current danger. Father had completed an autobiography, detailing his acts of child sex abuse. The Father's failure to complete treatment back in 1999 does not establish a current risk of abuse, 10 years later. Moreover, the findings that mother endangered the children by exposing them to the father were also in error, as the findings against mother were derived from the factual errors made against the father. The dissent argued that the Court should have credited the juvenile court's findings that the father had not remedied the tendency to sexually abuse children and that mother had failed to appreciate the risk that father posed to the children. Department of Human Services v. BB
Per Curiams
- The court errs in accepting a jury trial waiver when there should be competency concerns. Here, defendant was obviously confused and not tracking the waiver discussion. State v Mortensen
