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Oregon Appellate Court – December 13, 2017

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by: Mary A. Sofia • December 20, 2017 • no comments

Written by Erin Severe, OPDS | Edited by Mary A. Sofia, OCDLA

CRIMES

Rape—Jury Instructions—Plain Error

Court declines to exercise discretion to correct trial court’s plain error in failing to instruct jury that it was required to find that defendant knowingly subjected the victim to forcible compulsion.

Defendant appeals from a judgment of conviction for rape and coercion and argues that the trial court plainly erred in failing to instruct the jury that it was required to find that he knowingly subjected the victim to forcible compulsion on the rape counts. At trial, the state presented facts that the defendant convinced the victim, an immigrant, that she had to have sex with him to spare herself, her family, and defendant from harm or death from a cartel. Defendant argued that he and the victim had engaged in a consensual role-playing game and, at minimum, that he did not knowingly compel the victim to have sex.

The court agrees that the trial court plainly erred in failing to instruct the jury that it must find that defendant knowingly subjected the victim to forcible compulsion. The court however declines to exercise its discretion to correct the error because it concludes that the error was harmless. The jury’s verdict finding defendant guilty of coercion demonstrates that the jury necessarily discredited defendant’s assertion that he did not know that the victim did not understand that it was a role-playing game and found that defendant knew he was compelling the victim to have sex.

State v. Kerne, 289 Or App 345 (2017) (Lagesen, J.)

Violation of a Stalking Protective Order—Sufficiency of Evidence

Speculative evidence in this case insufficient to prove violation of stalking protective order prohibiting defendant from being within 25 feet of theater.

Defendant appeals in this consolidated case from two judgments of conviction for multiple counts of violation of court’s stalking protective order. n one case, he assigns error to the trial court’s denial of his motion for judgment of acquittal and, in both cases, to the imposition of supervision fees. he evidence at trial established that defendant is subject to an SPO that prevents him from being within 25 feet or a theater, although he is permitted to be within 25 feet of the theater for the purpose of accessing the staircase to his residence, which is above an antique store on the same block.

On the day in question, defendant parked his car on the street in front of the antique store. Specifically, an officer estimated that the car was approximately 10 feet away from a 25-foot line running on the sidewalk from the theater’s property and in the direction defendant’s parked car. The court concludes that the evidence is insufficient for two reasons: First, the trial court’s finding that defendant must have walked around the car in a way that brought him within 25-feet of the theater was entirely speculative. Second, the officer’s estimates of distance coupled with the Pythagorean Theorem are too speculative to support a rational inference of a specific distance. The trial court also plainly erred in imposing supervision fees in view of its explicit finding that defendant lacks the ability to pay financial obligations.

State v. Miller, 289 Or App 353 (2017) (Lagesen, J.)

EVIDENCE

Evidence—Prior Bad Acts—Hostile Motive

Evidence that defendant had threatened and assaulted former girlfriends admissible to show defendant’s hostile motive in altercation with his girlfriend.

Defendant appeals from a judgment of conviction of six crimes arising from a physical altercation with his girlfriend. He assigns error to the trial court’s admission of evidence that he had threatened and assaulted two former girlfriends. At trial, the trial court ruled that the prior bad acts evidence was admissible to prove defendant’s hostile motive and intent. Defendant argues that the trial court erred in admitting the prior bad acts as evidence of hostile motive because prior acts can show a hostile relationship exists only when the misconduct and the charged crime involve the same victim. Defendant also argues that the prior acts was not similar enough to the charged conduct to be admissible as evidence of intent.

The court concludes that the prior bad acts were admissible as evidence of defendant’s hostile motive. Specifically, defendant’s conduct against his former girlfriends was admissible to show that defendant tended to act violently against his girlfriends. Because defendant only requested OEC 403 balancing on the uncharged misconduct evidence at trial, his argument that the trial court erred in admitting the disputed evidence, for which defendant was convicted, is unpreserved. Affirmed.

State v. Rice, 289 Or App 282 (2017) (Hadlock, C.J.)

SENTENCING

Sentencing—Restitution—Plain Error

Trial court plainly erred in imposing restitution for criminal conduct that defendant never admitted and of which he was not convicted.

Defendant appeals from the trial court’s supplemental judgment imposing restitution following his no contest plea to 30 property offenses. On appeal, defendant argues that the trial court’s restitution award is erroneous because it imposed restitution (1) for crimes that were committed only by defendant’s codefendant, (2) that arose from criminal activity that neither defendant nor his codefendant were ever charged, and (3) arose from alleged crimes that occurred outside the time period alleged in the joint indictment. The state contends that defendant’s arguments are unpreserved and not reviewable as plain error. The court concludes that the trial court plainly erred in imposing restitution. It exercises its discretion to correct the error in view of the gravity of the error, because defendant provided some notice to the trial court of its error, and remanding for resentencing does not severely undermine notions of judicial efficiency.

State v. Benz, 289 Or App 366 (2017) (Garrett, J.)

Sentencing—Stipulated Sentence—Appellate Review

Defendant’s assignment of error challenging a sentence resulting from a stipulated sentencing agreement not reviewable on appeal.

State v. Nelson, 289 Or App 373 (2017) (Per Curiam)