Oregon Appellate Court - October 30, 2013
by: Abassos and Alarson • October 30, 2013 • no comments
Stalking - Communicative Contact Must Be an Unequivocal Threat
Yelling at a neighbor and saying "Why don't you come over and kick my ass then" does not amount to the sort of unequivocal threat necessary for communicative speech in a Stalking prosecution. See State v Rangel. State v Jackson, 259 Or App ___ (2013)
“Multiple Victims” Aggravating Factor Limited to Victims of the Offense, Not Victims of the Criminal Conduct
The term "victim" in the upward departure factor for "multiple victims" (OAR 213-008-0002(1)(b)(G)), means “a person who is directly, immediately, and exclusively injured by the commission of the crime - not persons injured only by subsequent, additional criminal conduct.” The distinction being made is between the offense of conviction and related conduct. Here, the defendant was convicted of burglary and multiple thefts for entering a vacation rental and stealing items belonging to seven people. Because the thefts occurred after the burglary was complete (upon entry), the theft victims are not burglary victims. State v. Teixeira, 259 Or App ___ (Oct. 30, 2013).
Merger - Felon in Possession of a Firearm With a Firearm and UUW With a Firearm
The elements of felon in possession of a firearm with a firearm subsume the elements of unlawful use of a weapon with a firearm. Therefore, two such convictions merge. Under ORS 161.610(2), adding “with a firearm” designates a new element—use or threatened use of a firearm during the commission of a felony—which creates a new aggravated crime. The trial court erred in failing to merge the convictions and, it necessarily follows, erred in sentencing consecutive sentences. State v. Flores, 259 Or App ___ (Oct. 30, 2013)
Miranda - Compelling Circumstances - 12 year Old Defendant
A 12 year old is in compelling circumstances, for Miranda purposes, where he is escorted by the principal to an administrative room and repeatedly asked pointed questions that presume the youth's guilt. That is: "taking into account the length of the interview, the location, youth's age, maturity level, the repetitive and escalating nature of the questions throughout the interview, and the increasingly coercive tactics used by the detectives, we conclude that a reasonable twelve-year-old of similar age, knowledge and experience, placed in youth's situation, would have felt required to stay and answer all of the detective's questions." State v DP, 259 Or App ___ (2013)
Severance - Defendant's Pretrial Showing of Prejudice Is All That Matters, Even Where the Trial is Actually Prejudicial
When determining whether substantial prejudice existed for the purposes of a severance motion, the appellate court will only look to defendant's pretrial showing of prejudice. Here, the trial court found that there would be no substantial prejudice from trying two DUIIs together if steps, such as limiting instructions, were taken. But, among other things, no limiting instructions were given. J. De Muniz dissents, pointing out that while pretrial it may have appeared that any potential prejudice could be mitigated, it matters that such mitigation never occurred and substantial prejudice actually resulted. The majority responds that "our task is to evaluate the record at the time of the court's ruling on defendant's motion to sever" and that if defendant wanted to challenge the lack of a jury instruction he needed to have excepted to the jury instructions. Affirmed. State v Tidwell, 259 Or App ___ (Oct. 30, 2013)
Merger - Counts with Alternative Theories Merge into One Conviction
Where guilt is found on multiple counts charged as alternative theories, the multiple counts merge into one conviction. Because the state has no interest in receiving multiple convictions where only one is allowed, the court reverses even in the absence of an objection. Here, the state argued, in the alternative, that a sexual act was either non-consensual (and therefore sex abuse II) or forcible (and therefore sodomy II). Reversed for merger of convictions. State v Steltz
Speedy Trial - Misdemeanor - 16 Month Delay Attributable to the State
A 16 month delay attributable to the state in a misdemeanor case is not reasonable. Here, the state did not argue that 16 months was reasonable. It argued that 4 of the 16 months were attributable to the defendant because he switched attorneys. But since the trial court found that delay to be attributable to the court's docket, the state does not prevail. State v Mercier, 259 Or App ___ (2013).
