Oregon Appellate Court - Feb. 12, 2014
by: Abassos • February 12, 2014 • no comments
Using a Child as Display in Sexually Explicit Conduct - A Photo of A Sexual Act with a Child Present is Enough to Survive MJOA
The element of “permitting” sexual conduct in ORS 163.670 (using a child as display in sexually explicit conduct), is satisfied when a person allows a child to participate in sexually explicit conduct. “Participation” can occur through the actions of another participant without any volition of the victim. Here, the defendant photographed a sexual act with a consenting woman while a young child was in the background. One photo depicted the child near the act, touching the defendant’s leg, and reaching towards the defendant. While mere proximity to or observation of sexually explicit activity is not enough to prove that the child is participating in the sexually explicit activity, the evidence was sufficient to survive MJOA and for the reasonable trier of fact to infer that the child was put deliberately in the photograph to “participate” in the sexual conduct. State v. Richardson, 261 Or App __ (2014).
Crim. Mischief III is Not a Lesser-Included of Crim. Mis. II
Criminal mischief III is not a lesser-included offense of criminal mischief II because it requires the state to prove an element -- intent to cause substantial inconvenience to the owner—that isn’t included in criminal mischief II. Thus, the trial court erred when it convicted the defendant of the uncharged crime of criminal mischief III as a lesser-included offense. State v. Bax, 261 Or App __ (2014).
Unauthorized Departure is Not a Lesser-Included of Escape
Unauthorized departure is not a lesser-included offense of escape II or III because it requires the state to prove an element - transitional or temporary leave from a correctional facility - that isn't required for Escape. Accordingly, a defendant cannot be convicted of unauthorized departure when charged only with escape. State v. Gruver, 261 Or App __ (2014).
An area is open to the public if a reasonable person would think they could enter and remain without permission
Whether someone “unlawfully entered or remained” in a building under ORS 164.205 depends on if the building is “open to the public.” The court holds an area is “open to the public” if the area’s general character would objectively cause a reasonable person to believe that he or she is free to enter and remain on the property without permission. The intent of the owner does not matter.State v. Davis, 261 Or App ___ (2014)
“DUII – whether officer must tell suspect that refusal to take verbal (testimonial) field sobriety test is inadmissible is a question of fact”
An officer must inform a DUII suspect that a refusal to take physical (non-testimonial) field sobriety tests is admissible, but there is no need to also inform the suspect that refusal to take verbal (testimonial) field sobriety tests is inadmissible. The court emphasizes that the test for admissibility of verbal tests is if there was reasonable confusion by the suspect as to whether a refusal to take a verbal field sobriety test would be admissible in court – a fact specific inquiry.
State v. Adame, 261 Or App ___ (2014)
“Giving jury instructions that misstate the law is not error when no prejudice results”
The court acknowledges that case law states the “or” in ORS 164.205 (3) (a) is effectively “and” – meaning one is guilty of trespass if the property in question is not open to the public and they do not have permission to enter. However, since the evidence and theories offered by both parties in this case focused on whether defendant was reckless in thinking the property to be public, the fact that the jury instruction stated “or” instead of “and” is not error.
State v. Nugent, 261 Or App ___ (2014)
“Being grumpy in probation revocation hearing + long criminal record = substantial and compelling reasons for denial of sentence modification programs under ORS 137.750”
Defendant was originally found guilty of second-degree burglary, and the court imposed a downward departure to probation from the presumptive sentence of 24 months under ORS 137.717. Defendant violated probation by driving with a suspended license, but had no dirty UA’s or any other bad behavior. He was not happy with getting 24 months and 12 months post-prison supervision for driving. The judge did not like his attitude, and denied eligibility for sentence modification programs under ORS 137.750 – citing long criminal history and “lack of remorse.” Affirmed.
State v. Hikes 261 Or App ___ (2014)
