Case Reviews
From OCDLA Library of Defense
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Oregon Appellate Ct - Nov 2, 2016
by: Sara Werboff • November 4, 2016 • no comments
- First-Degree Criminal Mistreatment - "Take" Under Statute Does Not Require Intent to Permanently Deprive
- Sentencing - Court Lacked Authority to Impose No-Contact Order for Incarceration and PPS Sentence
- Juvenile Dependency - Insufficient Evidence of Risk of Harm to Children's Welfare
- Appeal and Review - Order Determining that Defendant's Statements are Confessions is Not Appealable
- Evidence - Reversal Required Because Record Did Not Establish that Court Conducted 403 Balancing
- Contempt - Evidence Did Not Show that Defendant "Willfully" Violated Restraining Order
- Per Curiam - Reversing "Mandatory State Amt"
- Per Curiam - Reversing Compensatory Fine
- Per Curiam - Reversing Attorney Fees
- Per Curiam - Civil Commitment - Insufficient Proof for Civil Commitment
Oregon Appellate Ct - Oct 26, 2016
by: Sara Werboff • October 28, 2016 • no comments
- DUII - Judgment of Conviction Not Required to Prove Predicate DUII if there is a Finding of Guilt
- Civil Commitment - Failure to Prove Appellant was a Danger to Others
- DNA Testing - Defendant Entitled to Court-Appointed Counsel
- Expert Testimony - CARES Interviewer was Expert on Grooming and her Testimony was Not Scientific Evidence
- Indictments - Indictment Subject to Heightened Pleading Requirements for ORICO Offenses
- First-Degree Burglary - Defendant's Own Unlawful Overnight Use of Building Not Sufficient to Render the Building a Dwelling
- Juvenile Dependency - Lack of Service of Dependency Petition
Oregon Supreme Ct - Oct 20, 2016
by: Sara Werboff • October 21, 2016 • no comments
- State Habeas Corpus - An Inmate Transferred Out of State has the Right to Challenge Conditions of Confinement in Oregon
Oregon Appellate Ct - Oct 19, 2016
by: Sara Werboff • October 21, 2016 • no comments
- Vindictive Sentencing - Trial Court Imposed Vindictive Sentence for Relying on Conduct in Crimes Reversed on Appeal
- Burglary - Defendant Not Guilty of Burglary Because He Had Authorization to be In Coworker's Office
- Fines and Fees - Trial Court Lacked Authority to Impose a Compensatory Fine
- Denial of Continuance - Trial Court Did Not Abuse Discretion in Denying Continuance for Pro Se Defendant to Subpoena Police
- Plea Agreements - State Breached Plea Agreement by Seeking Restitution
- Civil Commitment - Record Legally Insufficient to Support Civil Commitment
- Juvenile Dependency - Appeal Dismissed as Moot
- Search & Seizure - Search Incident to Arrest was Lawful
- Juvenile Delinquency - Court is Required to Make Specific Findings Why Out-of-Home Placement is Necessary
- Per Curiam - Error to Impose Restitution and Suspend SNAP Benefits
- Per Curiam - Sentence Exceeded Statutory Maximum
- Per Curiam - Reversing Mandatory State Amt and Affirming Attorney Fee Judgment
- Per Curiam - Reversing Attorney Fee Judgment
- Per Curiam - Reversing Attorney Fee Judgment
Oregon Supreme Ct - Oct 13, 2016
by: Sara Werboff • October 14, 2016 • no comments
- Administrative Subpoena for Bank Records Did Not Violate Article I, section 9
Oregon Appellate Ct - Oct 12, 2016
by: Sara Werboff • October 14, 2016 • no comments
- Exculpatory Evidence - Complainant Was Required to Comply with Subpoena Duces Tecum for her Computer
- Interrogation of Represented Defendant was Unlawful and His Confession to Multiple Robberies Should Have Been Suppressed
- State Presented Insufficient Evidence that Defendant "Harbored or Concealed" for Purposes of Hindering Prosecution
- Consecutive Sentences Unwarranted When No Evidence to Show Defendant Intended to Commit Multiple Crimes
- Merger - Third-Degree Rape and Second-Degree Sexual Abuse Counts Should Merge
- Attorney Fees - No Plain Error when Evidence of Defendant's Employability in Record
- Juvenile Dependency - Juvenile Court Lacked Authority to Order DHS to Undo DHS's Administrative Actions
- Juvenile Dependency and Delinquency - Juvenile Court Lacked Authority to Order Youth to OYA Custody
Oregon Supreme Ct - Oct 6, 2016
by: Sara Werboff • October 10, 2016 • no comments
- Search and Seizure - Defendant Has a Possessory Interest in Undelivered Mail and Seizure was Unlawful
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
