Oregon Appellate Court - August 28, 2013
by: Abassos • August 28, 2013 • no comments
Burglary Requires Criminal Intent at the Initiation of a Criminal Trespass
Burglary is a criminal trespass with the intent to commit a crime. Thus, where a person unlawfully enters without criminal intent and then later develops criminal intent, there is no burglary. Here, defendant trespassed into an empty home to look around. He then decided to take a key while he was inside. He was not guilty of burglary because he did not have the intent to steal at the time he entered the home. Note that a burglary can also be committed by remaining unlawfully. In that case, the person must intend to commit a crime at the point where permission to be on the property is revoked. Reversed for entry of judgement on Criminal Trespass II. State v JNS, ___ Or App ___ (2013)
Possession/Manufacture of a Destructive Device - Pyrotechnics Don't Count
A pyrotechnic device is not a destructive device for the purpose of ORS 166.382-4, possession and manufacture of a destructive device. Pyrotechnic devices, also known as fireworks, are explosive substances "prepared for the purpose of providing a visible or audible effect." Here, defendant, a juvenile, filled a tennis ball with gunpowder and, using a pixie stick as a wick, planned to light the tennis ball for the purpose of creating a big flash. If his purpose was not to destroy anything, but only to create a visible effect, he was not guilty of either possession or manufacture of a destructive device. Reversed and remanded for fact finding and determination on the question of whether the tennis ball creation was a pyrotechnic device. State v JNS, ___ Or App ___ (2013)
Corroboration is Not "Bolstering"
When a defendant calls witnesses to confirm his version of events, it is not "bolstering." It is corroboration. Here, defendant attempted to call an eyewitness to a recent prior assault by the complainant against defendant to support self-defense. The Lane County judge barred the witness, saying "I'm not going to let him bolster." The appellate court finds that it was reversible error to exclude the testimony. "When a defendant raises the defense of self-defense, evidence of the alleged victim's prior violent acts toward the defendant is admissible under OEC 404(1)." Moreover, since complainant denied the recent violent acts, the eyewitness could have made the difference. Reversed. State v Beisser.
