Case Reviews
From OCDLA Library of Defense
- Go here to see a list of:
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Oregon Appellate Ct - Sept 8, 2016
by: Sara Werboff • September 11, 2016 • no comments
- Commercial Drug Offense - Text Messages Did Not Constitute Drug Transaction Records
- Merger of Guilty Verdicts - Witness Tampering Verdicts Should Merge
- Sufficiency of Evidence - Insufficient Evidence to Prove that Defendant Possessed Dangerous Weapon
- Lesser Included Offense Instruction - Defendant Entitled to Attempt Instruction on Possession of Weapon and Contraband Charges
- Sufficiency of Evidence - Evidence Sufficient for Aiding and Abetting Theory
- Post-Conviction Relief - Petitioner Allowed to Make Record Concerning Complaints about PCR Counsel
- Juvenile Dependency - Court Failed to Apply Proper Standard to Determine Jurisdiction of Oregon Courts
- Appeal and Review - Revocation of Conditional Discharge Not Reviewable on Appeal
- Sufficiency of Pleadings - Inmate's Filing Stated Claim for Conversion
- Civil Commitment - Sufficiency of Evidence - Per Curiam
Oregon Appellate Ct - Aug 31, 2016
by: Sara Werboff • September 2, 2016 • no comments
- Identity Theft - "Transfer" of Personal Information Requires Giving Possession or Control to Another for Fraudulent Purposes
- Jury Instructions - Plain Error Not to Give Jury Concurrence Instruction when State Advanced Both Principal and Aider and Abettor Theories
- Search & Seizure - Third Party Consent was Valid - Warrantless Seizure was Unlawful
- Revocation of Probation - Proper to Sentence Defendant to Maximum Under ORS 137.717 in Effect at Time of Original Conviction
- Denial of Motion to Sever is Not Error when Sex Abuse Allegations are of Same or Similar Character
- Restitution - Damages for Hit & Run Include Money Spent by Insurer for Purposes of Restitution
- Restitution - Defendant Bears Burden of Proving that Victim Failed to Mitigate Damages
- Jury Instructions - Failure to Instruct on State's Burden to Disprove Defense is Plain Error
- Board of Parole - Petition for Judicial Review is Dismissed as Moot
- Post-Conviction Relief - State's Motion for Summary Affirmance Granted
- Judgments - DUII Conviction Fee - Per Curiam
- Mandatory State Amount - Per Curiam
Oregon Appellate Ct - Aug 24, 2016
by: Sara Werboff • August 26, 2016 • no comments
- CARES Video Admissible at Trial - 403 Balancing
- Sentencing - Upholding Mandatory Minimum Sentence for Juvenile
- Character Evidence - Exclusion of Character Evidence Concerning Defendant's Sexual Propriety was Not Harmless Error
- Post-Conviction - Trial Counsel's Failure to Request Jury Concurrence Instruction Grounds for PCR
- Court-Appointed Attorney Fees - Preservation - Per Curiam
- Civil Commitment - Insufficient Evidence that Appellant Could Not Meet Basic Needs - Per Curiam
- Civil Commitment - Trial Court's Failure to Advise of Rights - Per Curiam
Oregon Appellate Ct - Aug 17, 2016
by: Sara Werboff • August 19, 2016 • no comments
- Identity Theft - Converting to One's Own Use Means Appropriating a Person's Personal Identification Without Consent of that Person
- Probable Cause - Drugs Found in Passenger's Possession Does Not Create Probable Cause that Driver Possessed Drugs
- Miranda Warnings - State Must Prove Spanish Miranda Warnings Were Understood
- Exigent Circumstances - Entry Into Private Garage Lawful to Pursue Fleeing Suspect
- Probation Revocation - Court Does Not Need to Find that Probation Violation was Willful to Revoke Probation
- State Concedes Insufficient Evidence of Second-Degree Criminal Mischief - Per Curiam
- Attorneys Fees - In Camera Review - Per Curiam
Oregon Supreme Ct - August 11, 2016
by: Sara Werboff • August 11, 2016 • no comments
- Third-Degree Escape - Definition of Custody Includes "Constructive Custody"
Oregon Appellate Ct - Aug 10, 2016
by: Sara Werboff • August 10, 2016 • no comments
- Vouching - PTSD Diagnosis Admissible in Sex Abuse Case
- Post-Conviction Relief - Failure to Request Curative Instruction Possibly Strategic and Not Prejudicial
- Probation Revocation - Trial Court Constrained By Terms of Judgment in Imposing Sentence on Revocation
- RPO Sentence Imposed After Probation Revocation is Reviewable - Plain Error Review Not Warranted
Oregon Appellate Ct - Aug 3, 2016
by: Sara Werboff • August 7, 2016 • no comments
- First-Degree Criminal Mistreatment - Taking of Elderly Person's Money Does Not Include Accepting Gifts - First Impression
- Disorderly Conduct - Physically Offensive Condition Means Creating Unpleasant Sensory Effects
- Aggravating Sentencing Factors - Does Use of Dangerous Weapon Justify Upward Departure for Murder - Sufficiency of Trial Court's Findings
- Search & Seizure - Silence is Not an Unequivocal Manifestation of Intent to Abandon Property
- Search & Seizure - Scope of Consent to Patdown - Officer Safety
- Hearsay from Confidential Informant - Opening the Door - Harmless Error
- Post-Conviction Relief - Sufficiency of PCR Judgment Denying Claims for Relief
- Post-Conviction Relief - Sufficiency of PCR Judgment Denying Petition as Untimely
- Challenge to Department of Corrections Rules - Retroactivity - Vagueness - Exceeding Statutory Authority
- Assault IV - Physical Injury - Sufficiency of Evidence - Per Curiam
- Merger - Trial Court Can Find Sufficient Pause from Defendant's Guilty Plea to Date Range - Per Curiam
- Jury Instructions Including Theories Not Alleged in Indictment are Erroneous - Per Curiam
- Search & Seizure - Unlawful Extension of Stop - Per Curiam
- Declaratory Relief - Waiver or Deferral of Filing Fees - Per Curiam
Oregon Appellate Ct - July 27, 2016
by: Aalvarez@mpdlaw.com • July 28, 2016 • no comments
- Vouching – Cooperation Agreement with the State
- Plain Error – UUW and Felon in Possession of a Firearm
- ORS 144.228(1)(c) and OAR 255-38-005(4) - “Reasonable Cause” – “Delegative Term”
- Williams Requires 403 Balancing
- Juvenile Dependency – Proper Standard for a Motion to Dismiss
- Search and Seizure – Search Warrant – Theft of a UTV
- Appeal from a Juvenile Dependency Judgment Dismissed as Moot
- DUII – Right to Counsel During a Breath Test
- Manslaughter – MJOA
- Search and Seizure – Warrants – Particularity Standard As it Applies to Computers
- Attorney’s Fees – Per Curiam Reversal
- Civil Commitment – Per Curiam Reversal
Oregon Supreme Ct - July 21, 2016
by: Aalvarez@mpdlaw.com • July 22, 2016 • no comments
- ORS 164.377 - Computer Crime - "Without Authorization"
Oregon Appellate Ct - July 20, 2016
by: Aalvarez@mpdlaw.com • July 21, 2016 • no comments
- Mere Failure to Show Up After Being Subpoenaed – Insufficient to Make a Witness Unavailable Under the Confrontation Clause
- Evidence of a Restraining Order – Relevant in a DUII Trial to Contradict Defendant’s Timeline
- PCR – IAC – Erroneous Jury Instructions – Attempted Second Degree Assault
- Article I, Section 9 – Abandonment of Containers Found in a Stolen Truck
- Prior Uncharged Conduct – Identity Evidence – Distinctive Clothes and Weapons
- OEC 401- Relevant Evidence – Evidence Depicting Defendant’s Version of the Attack
- Initiating a False Report – MJOA
- Failure to Perform the Duties of a Driver – Witness False In Part Instruction
- Attorney's Fees - Per Curiam Reversals
- Civil Commitments - Per Curiam Reversals
- Waiver of Counsel - Per Curiam Reversal
Oregon Appellate Ct - July 7, 2016
by: Amanda Alvarez Thibeault • July 7, 2016 • no comments
- “Offer to Purchase” – ORS 260.715(9)
- Article I, Section 8 - Freedom of Speech – ORS 260.715(9)
- Dependency – Current Threat of Serious Loss or Injury – Ongoing Mental Health Issues
- Prior Bad Acts – Motive – No Need for Leistiko Instruction
- PCR – Failure to Request a Boots Instruction
- Per Curiam Attorney’s Fees Reversal
- Per Curiam Reversal of $60 Mandatory State Assessment
Oregon Supeme Ct - June 30, 2016
by: Amanda Alvarez Thibeault • June 30, 2016 • no comments
- Restitution for Stolen Goods – Must Look at Market to Which Victim Would Resort To For Replacement
- Defendant’s Silence in Response to Statements – Adoptive Admissions
Oregon Appellate Ct - June 29, 2016
by: Amanda Alvarez Thibeault • June 30, 2016 • no comments
- Evidence of a Plan to Steal Marijuana and Sell It – Not Relevant as Plan or Intent Evidence in Separate Delivery Charge
- Not A Stop – Asking for Name and Whether Person Possesses Anything Illegal
- Prior Theft Conviction – Inadmissible to Prove Lack of Mistake and Plan
- MJOA - Proper Remedy When Defendant Charged with IPO Based On Conduct Constituting Resisting Arrest
- Error to Admit Other Bad Acts Without 403 Balancing
- A Court May Not Revoke A Defendant’s Probation for A Condition Not Imposed by a Judge
- PCR – Claim for Relief Barred Under ORS 138.510
- Kidnapping – Secretly Confined – Hotel Room Where Defendant Threatened Victim if She Left
- For Cause Challenge to a Juror – Not an Abuse of Discretion to Deny
- Sentencing – Arrest Warrant With Nothing More is Not a Substantial Reason for Departure Sentence
- Expungement of Certain Sex Crimes under ORS 137.225(8)(b)
- Per Curiam Reversal - Attorney's Fees
U.S. Supreme Ct - June 27, 2016
by: Amanda Alvarez Thibeault • June 27, 2016 • no comments
- Misdemeanor Crime of Domestic Violence with a Reckless Mental State Qualifies for Federal Firearms Ban
U.S. Supreme Ct - June 23, 2016
by: Aalvarez • June 23, 2016 • no comments
- DUII Blood Draws Require a Warrant or Exigency
- ACCA - State Crime Cannot Qualify as a Predicate Where Broader than Generic Crime
Oregon Appellate Ct - June 22, 2016
by: Aalvarez • June 23, 2016 • no comments
- PCR – IAC - Standard for Determining Prejudice
- SPO – Entry of SPO Improper Where Respondent Has Not Received Notice
- Failure of the Trial Court to Sua Sponte Grant a Mistrial
- Denial of a Motion for New Trial – When Subject to Appellate Review
- Refusal of the Trial Court to Subpoena a Juror About What Occurred in Jury Deliberations
- Reasonable Suspicion of Drug Activity
- Consent to Search In the Presence of An Officer’s “Threat” to Bring a Drug Dog On Scene
- Basis for an Expert Opinion Under OEC 703 – Scientific Study – Child Sex Abuse
- Extrinsic Evidence of Bias - Cross Examination
- PCR - Denial of Motion for Substitute Counsel
- Dependency – Voluntary Admission of the Bases for Jurisdiction
- Per Curiam Civil Commitment Reversals
- Theft by Receiving – MJOA
- Disorderly Conduct – Free Speech - MJOA
U.S. Supreme Ct - June 20, 2016
by: Aalvarez • June 20, 2016 • no comments
- Evidence Discovered During an Unlawful Stop Is Admissible When the Search is the Result of an Outstanding Arrest Warrant
- Robberies that Target Drug Dealers Sufficiently Affect Interstate Commerce to Qualify for Prosecution Under the Hobbs Act
Oregon Supreme Ct - June 16, 2016
by: Aalvarez • June 16, 2016 • no comments
- Testing the Blood of a Lawfully Seized Animal Does Not Violate the Oregon or Federal Constitution
- Life Without Parole Sentences for Certain Felony Sex Offenses
Oregon Appellate Ct - June 15, 2016
by: Aalvarez • June 15, 2016 • no comments
- Stop by An Out of State Officer - Unlawful Under Article I, Section 9
- Vouching – Plain Error Review
- Imposition of Attorney’s Fees Where No Evidence of Ability to Pay
- Statements Were Voluntary Where Defendant Repeatedly Acknowledged That He Understood His Miranda Rights Before Speaking
- Sentencing – Two Beatings 10-15 Minutes Apart – Consecutive Sentences
- Sentencing – Merger – Attempted Murder and Murder
- Per Curiam Reversal – No Basis for Finding of a Sentence Enhancement Fact
- Attorney’s Fees – Plain Error in Imposing
- Civil Commitment – Basic Needs
- Dependency – “Rational Relationship”
U.S. Supreme Court - June 13, 2016
by: Aalvarez • June 13, 2016 • no comments
- Prior Uncounseled Tribal Court Convictions - May Be Used As Predicate Convictions
