Case Reviews
From OCDLA Library of Defense
- Go here to see a list of:
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Oregon Appellate Ct - Oct 5, 2016
by: Sara Werboff • October 10, 2016 • no comments
- Search and Seizure - Unlawful Extension of Traffic Stop
- Jury Concurrence - Concurrence Instruction Required when Evidence of Both Principal and Aider and Abettor Theory
- Juvenile Dependency - Juvenile Court Erred in Finding Jurisdiction
- Per Curiam - "Right to Apply for Driving Privileges" is Different than Right to Seek Restoration of Driving Privileges
- Per Curiam - Attorney Fees
- Per Curiam - Remanding for Resentencing Due to Discrepancy between Court's Pronouncements and Judgment
- Per Curiam - Civil Commitment - Sufficiency of Evidence
Oregon Appellate Ct - Sept 28, 2016
by: Sara Werboff • September 30, 2016 • no comments
- Search and Seizure - Drug Dog Alert Not Sufficiently Reliable to Establish Probable Cause to Search Vehicle
- Search and Seizure - Search Warrant Affidavit Did Not Establish Probable Cause to Search Defendant's Home
- Per Curiam - Resentencing on Lesser-Included Offenses
- Per Curiam - Conditions of Probation - Fines and Fees
- Per Curiam - Insufficiency of Evidence for Failure to Report as a Sex Offender
Oregon Supreme Ct - Sept 22, 2016
by: Sara Werboff • September 23, 2016 • no comments
- Custodial Interrogation - Police Unconstitutionally Reinitiated Interrogation After Defendant Invoked Right to Counsel
- Vouching - Out-of-Court Statements on Credibility Not Categorically Inadmissible if Offered for Relevant, Non-Opinion Purpose
- Sentencing - LWOP Sentence Unconstitutional As Applied to Third Conviction for Felony Public Indecency
- Sentencing - LWOP Sentence Constitutional for Recidivist Sex Offender
Oregon Appellate Ct - Sept 21, 2016
by: Sara Werboff • September 22, 2016 • no comments
- Search and Seizure - Search of Closed Container Lawful as a Search Incident to Arrest
- Sufficiency of Evidence - Proof of Burglary Requires More than Commission of Crime in a Dwelling
- Jury Concurrence Instruction - Defendant Entitled to Instruction in Fourth-Degree Assault Case
- Sufficiency of Evidence - Evidence Sufficient to Prove Knife Contained a Spring
- Admissibility of Confession - Defendant's Statements Induced by Threats
- Pleading Requirements - State Required to Allege with Particularity Pattern of Racketeering Activity for "Inchoate" ORICO Charge
- Probation Revocation - Probationer Does Not Have Due Process Right to Discovery of his Probation File
- Juvenile Dependency - Termination of Parental Rights - Assertion of Jurisdiction and Termination of Rights Not Error
- Juvenile Dependency - Parents Could Not Contest Evidence Through Attorneys when They Failed to Personally Appear
- Parole - Board Lacked Authority to Postpone Petitioner's Release Date
Oregon Supreme Ct - Sept 15, 2016
by: Sara Werboff • September 18, 2016 • no comments
- First-Degree Child Neglect Does Not Include Leaving a Child Where Drugs are Possessed with Intent to Deliver
Oregon Appellate Ct - Sept 14, 2016
by: Sara Werboff • September 16, 2016 • no comments
- Search & Seizure - Search Warrant for All Electronic Devices was Overbroad
- Prior Bad Acts Evidence - Johns Test Not Required for Hostile Motive Evidence'
- Sentencing Enhancements - Defendant Entitled to MJOA on Commercial Drug Enhancement
- Jury Instructions - Defendant Entitled to Instructions on Deadly Force and Felony Assault
- In Camera Inspection of Records - Trial Court's Discretion to Conduct In Camera Review
- Venue - Defendant Not Entitled to Judgment of Acquittal or Dismissal after Mills
- Search & Seizure - Police Lacked Reasonable Suspicion to Stop Defendant - Emergency Aid Exception Unavailable
- Termination of Parental Rights - Mother Entitled to Evidentiary Hearing on Adequacy of Counsel
- Juvenile Dependency - Evidence Sufficient for Juvenile Court's Continuing Jurisdiction
- Post-Conviction Relief - Dismissal of Successive or Untimely Petition
- Restitution - Attorneys Fees - Reversing Attorney Fees but Affirming Restitution Award
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
