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| − | ==ONLY ONE VICTIM PERMITTED==
| + | <summary hidden> |
| − | '''Single Entry/Single Victim'''
| + | * Three Strikes Sex Offense Law (ORS 137.719)—What’s a Prior Sentence? |
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| − | Multiple burglaries merge into one conviction when based on a single unlawful entry and a single victim. Ditto for coercion with one act and one victim. [http://www.publications.ojd.state.or.us/docs/S53087.htm White] and [http://www.publications.ojd.state.or.us/docs/S50105.htm Glaspey] are controlling. Per Curiam. [http://www.publications.ojd.state.or.us/docs/A136897.htm State v. McMurren], 232 Or. App. 272, 221 P.3d 830 (Nov. 2009)
| + | * Expungement—A Non-Traffic Violation is a Conviction |
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| − | '''Multiple Theories'''
| + | * Warrantless Entry to Land—Absence of a “No Trespassing” Sign |
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| − | Burglary with both the intent to commit rape and with the intent to commit sex abuse add up to one burglary with two theories. That means they merge for conviction. The two counts become one conviction. They don’t just merge for sentencing. This is plain error and subject to reversal even when unpreserved. However, it was not plain error or perhaps error at all to fail to merge the four counts of sexual abuse. [http://www.publications.ojd.state.or.us/docs/A139110.htm State v. Lepierre], 235 Or. App. 391, 232 P.3d 982 (June 2010)
| + | * Enhancement—Commercial Drug Offenses |
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| − | '''Aggravated Murder – Multiple Theories'''
| + | * Uncharged Sexual Conduct Between Defendant and Child Victim |
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| − | Multiple counts of aggravated murder merge when they arise out of the murder of a single individual. In fact, it’s plain error for the court not to merge. [http://www.publications.ojd.state.or.us/docs/A142623.htm State v. Thomas], 2010 WL 4323207, 2010 Or. App. LEXIS 1283 (Nov. 2010)
| + | * If a Witness Waives Privilege, the Protections of OEC 513 are also Waived |
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| − | '''Convenience Store Robbery:''' When you have a situation where there are multiple counts of the exact same crime, you need to first ask, “does each count have a different victim?” See [http://scholar.google.com/scholar_case?case=5620449623539133553&q=348+371&hl=en&as_sdt=4,38 State v. Hamilton] 348 Or 371 (June 10, 2010)(Different victims from a single '''Robbery''' serve to prohibit merger of multiple robbery counts, and a person against whom the defendant uses or threatens violence who is a victim, regardless of whether they own or possess the property stolen.)
| + | * The Maximum Sentence on any Crime is the Statutory Maximum |
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| − | '''A quick word about “victims” and whether the state is a “victim” for purposes of merger (Until [http://scholar.google.com/scholar_case?case=16065173264926466030&q=State+v+Torres&hl=en&as_sdt=4,38 ''State v Torres''], (May, 2012), this was the law):'''
| + | * Merger—Sufficient Pause—Assault |
| | + | </summary> |
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| − | :''[As] we have previously recognized, the state is not a “victim” for purposes of ORS 161.067. See [http://scholar.google.com/scholar_case?case=3717364707431759312&q=96+511&hl=en&as_sdt=4,38 State v. Ott], 96 Or App. 511, 514, 773 P2d 19, rev den, 308 Or 382, 780 P2d 735 (1989) (“[F]or purposes of ORS 161.062(4), the term ‘victim’ does not encompass * * * the state.”).''
| + | '''Three Strikes Sex Offense Law (ORS 137.719)—What’s a Prior Sentence?''' |
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| − | [http://scholar.google.com/scholar_case?case=16511979786898499586&q=207+19&hl=en&as_sdt=4,38 State v. Camarena-Velasco], 207 Or App 19, 22-23 (2006) | + | [http://www.oregonlaws.org/ors/137.719 ORS 137.719] requires a presumptive sentence of life without the possibility of parole for individuals who are convicted of a felony sex offense and have been “sentenced for sex crimes that are felonies at least two times prior to the current sentence.” A prior “sentence” refers “to dispositions that were ‘sentences’ at the time of their imposition.” Here, the defendant had two prior felony sex crimes in Texas. Texas law does not view them as ‘sentences’ at the time of their disposition, but Oregon law does. This issue was not preserved at trial, and the appellate court found that because this issue was reasonably in dispute, no plain error had occurred. Similarly unpreserved was the argument that the OARs give the trial court discretion to impose less than the presumptive life sentence. Affirmed. [http://www.publications.ojd.state.or.us/docs/A144809.pdf ''State v. Molette''], ___ Or App ___ (Feb. 6, 2013). |
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| − | How does ''Torres'' change this analysis? Well, the state can be a victim, but does this mean if the state is a victim in one count, and a real person in another, the two wouldn't merge (even if they would have before ''Torres'') because the real person and the state are two different victims? Don't know but expect the AG's office, at least, to make that argument on those rare occasions it comes up.
| + | '''Expungement—A Non-Traffic Violation is a Conviction''' |
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| − | '''Felony Hit and Run''' (do not merge) | + | A non-traffic violation is a conviction for the purposes of the expungement rule that a person may not have any “other” convictions in the preceding 10 years. Here, defendant pled no contest, in 2010, to Public Urination, a municipal code violation. Thus, his 2007 conviction is not eligible to be set aside until 2020 (10 years from the violation conviction). [http://www.publications.ojd.state.or.us/docs/A148465.pdf ''State v. Roberts''], ___ Or App ___ (Feb. 6, 2013). |
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| − | Same question as above: how many victims? Until 2011, you might have been correct in concluding that the state is the victim, since the crime is running away, not causing the injury. This conclusion would have been supported by [http://scholar.google.com/scholar_case?case=7708625101111578473&q=33+301&hl=en&as_sdt=4,38 ''State v. Duffy''], which held that “hit and run” was not compromisible, because there was no victim who would have a civil remedy. State v. Duffy, 33 Or App 301 (1978); ''see also'' [http://scholar.google.com/scholar_case?case=957519854842220412&q=292+184&hl=en&as_sdt=4,38 ''State v. Eastman/Kovach''], 292 Or 184, 189-90, 637 P2d 609 (1981). Had this analysis been correct, four people injured, four counts of Felony Hit and Run, only one conviction.
| + | '''Warrantless Entry to Land—Absence of a “No Trespassing” Sign''' |
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| − | But the COA held that, in fact, the people injured by a felony hit and run are victims, and therefore the counts do '''not''' merge. [http://www.publications.ojd.state.or.us/docs/A138282.htm State v. Moncada], 250 P. 3d 31 (March 2, 2011).
| + | An open gate and two signs reading “PRIVATE PROPERTY” (as opposed to “no trespassing”) were insufficient to indicate the defendant’s clear intent to exclude uninvited visitors. Thus, an officer’s warrantless entry onto defendant’s property to investigate the possession of a stolen car was not unlawful. ''[http://www.publications.ojd.state.or.us/docs/A142984.pdf State v. Cam''], ___ Or App ___ (Feb. 6, 2013) |
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| − | Moncada summarizes the analysis, from cases such as Glaspey and Luers, that should be used in determining who is a victim, when it is not clear from the statute:
| + | '''Enhancement—Commercial Drug Offenses''' |
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| − | ''We glean a single, salient principle from Glaspey and Luers, which informs the outcome in this case: Where the statute defining a crime does not expressly identify the person who qualifies as a “victim,” the court examines the statute to identify the gravamen of the crime and determine '''the class of persons whom the legislature intended to directly protect''' by way of the criminal proscription. (Emphasis added.)'' | + | [http://www.oregonlaws.org/ors/475.900 ORS 475.900] allows for possession of ''one'' controlled substance to be used as an enhancement factor to elevate possession of ''any other'' controlled substance to a commercial drug offense (CDO). Here, defendant’s possession of more than eight grams of methamphetamine was appropriately used as a factor to enhance charges for possession of marijuana and MDMA to CDO charges. Also, even though the enhancement factors in each case are exactly the same, CDO convictions for different drugs do not merge because the element of each drug is distinct. [http://www.publications.ojd.state.or.us/docs/A142984.pdf ''State v. Cam''], ___ Or App ___ (Feb. 6, 2013). |
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| − | This quote is quite important, because it emphasizes that it is a “class” or category of persons who would qualify as victims, not anyone who might happen to be harmed. (There is always the possibility of collateral harm to persons the legislature did not intend to constitute victims.) Thus, [[Blog:Main/The_Class_of_Victims_for_Identity_Theft:_Updated | for a crime like ID Theft]], where there are competing arguments over who is the victim, judges have a choice: either the victim is the person or business that the defendant intends to defraud or deceive or it is the “real or imaginary” person whose identity is stolen. Can a class of persons include imaginary people when imaginary people can’t, by definition, be harmed? The answer is yet to be determined.
| + | '''Uncharged Sexual Conduct Between Defendant and Child Victim''' |
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| − | '''Encouraging Child Sexual Abuse''' (e.g., multiple photographs, but again the same question: how many victims? It’s an open question per [http://scholar.google.com/scholar_case?case=11470352677594902293&q=214+416&hl=en&as_sdt=4,38 State v. Betnar], 214 Or. App. 416 (August 15, 2007) whether the child in the photo is a “victim” of someone downloading the photo years, maybe even decades, after the photo was taken. There’s no dispute the child is a victim of the photographer, but that’s not the issue here. This argument has prevailed at the trial level in Washington County, but beware of the state shifting its argument from separate victims to separate criminal episodes, based on when the photos were downloaded. There are many problems with the state making the latter argument, and case law on separate criminal episodes should be very familiar to defense counsel – particularly St v. Boyd, St v. Plourd and St v. Mallory.)
| + | In a case involving sexual abuse of a child, where the crime is reported long after its occurrence, evidence of prior uncharged sexual contact between the defendant and child is permissible non-character evidence relevant to: |
| | + | * Explain delay in reporting crime |
| | + | * Provide the context of a long-term “relationship” |
| | + | * Show the defendant’s sexual predisposition to the particular child. |
| | + | [http://www.publications.ojd.state.or.us/docs/A146040.pdf ''State v. Stephens''], ___ Or App ___ (Feb. 6, 2013) |
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| − | Again, no issue of “sufficient pause,” since there is no pause in simultaneous possession. [http://scholar.google.com/scholar_case?case=8768037230946063916&q=234+177&hl=en&as_sdt=4,38 Huffman], supra.
| + | '''If a Witness Waives Privilege, the Protections of OEC 513 are also Waived''' |
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| − | Here is what I think is a big unanswered question in merger law. It involves those cases that may have different victims. The question is this: can a crime sometimes have a victim and sometimes not?
| + | [[Effect_of_Privilege | OEC 513]] prevents parties from commenting on or drawing inferences from the invocation of a privilege. “Privilege” includes invoking the right to remain silent, even though silence is not one of the privileges in the evidence code. But when a person voluntarily waives the underlying privilege, they also waive the protections of OEC 513. Here, the court finds that the witness waived attorney-client privilege by voluntarily testifying about her reasons for not talking to the police. Thus, the state was allowed to argue in closing that the witness remained silent and did not cooperate with detectives because she was protecting the defendant. [http://www.publications.ojd.state.or.us/docs/A146040.pdf ''State v. Stephens''], ___ Or App ___ (Feb. 6, 2013). |
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| − | The reason I think this is a question is this: In St v Glaspey and its progeny, the courts have said that whether or not there is a victim (or who the victim is) depends on legislative intent. In other words, you don’t look at the facts of a particular case, you look at legislative intent. Consequently, in Glaspey, the court looked at legislative intent and decided that child-witnesses weren’t victims of Felony Assault IV. It doesn’t matter whether the state could prove that a particular child in a particular case was actually injured (psychologically) by witnessing the assault. | + | '''The Maximum Sentence on any Crime is the Statutory Maximum''' |
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| − | So take a case like ID Theft, where sometimes the “victim” is real and sometimes he’s “imaginary.” Let’s grant that the legislature didn’t intend imaginary victims. In light of the Glaspey analysis, can we say that the legislature intended that the person whose identity is taken is a victim, unless the facts show he doesn’t exist, in which case there is no victim? In other words, did the legislature intend that sometimes we should consider the facts of the case in determining if there is a victim?
| + | Because the maximum indeterminate sentence for a B felony is 120 months, it is plain error to sentence a defendant to a longer period. Here, 144 months for an Assault II. Since the state has no valid interest in defendant serving an unlawful sentence, the court uses its discretion to remedy the error. [http://www.publications.ojd.state.or.us/docs/A143744.pdf ''State v. Aitken''], ___ Or App ___ (Feb. 6, 2013). |
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| − | Is that at odds with Glaspey, and what authority is there for the “sometimes facts matter” analysis in determining a victim’s existence?
| + | '''Merger—Sufficient Pause—Assault''' |
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| − | This question also comes up in '''Reckless Endangering'''.
| + | A sufficient pause occurs only if one assault ends before the other begins. Here, defendant stabbed Victim 1 in the back and yelled for everybody to stay out of his business. He then began moving towards Victim 2. Victim 1 intercepted defendant, and in the resulting scuffle defendant stabbed Victim 1 in both arms. The court finds there is evidence to support the trial court’s finding of a sufficient pause, preventing merger of the two assaults. [http://www.publications.ojd.state.or.us/docs/A143744.pdf ''State v. Aitken''], ___ Or App ___ (Feb. 6, 2013). |
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| − | '''In Reckless Endangering''', the COA has said there is a discrete victim of the crime. [http://scholar.google.com/scholar_case?case=5775942265335415294&q=139+579&hl=en&as_sdt=4,38 State v. Sumerlin], 139 Ore. App. 579. (And therefore they '''don’t merge'''.) | + | '''Per Curiams''' |
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| − | “Civil compromise only applies, however, to crimes having “a discrete victim or victims” and not to offenses committed against the public at large, such as public indecency and reckless driving. [http://scholar.google.com/scholar_case?case=18287755404146123525&q=Van+Hoomissen&hl=en&as_sdt=4,38 Van Hoomissen], 125 Ore. App. at 683; [http://scholar.google.com/scholar_case?case=12123686272056300353&q=73+109&hl=en&as_sdt=4,38 State v. Dugger], 73 Ore. App. 109, 112-13, 698 P.2d 491 (1985). Therefore, it must follow that, as a crime subject to civil compromise, reckless endangering has “a discrete victim or victims.” Because defendant’s nephews were both in the car, his reckless conduct endangered two discrete victims. Therefore, ORS 161.067(2) prohibits the merger of the two reckless endangering convictions. The trial court properly refused to merge those counts.”
| + | * '''Adequate Notice of a Violation Trial Date—5 Day Rule:''' Notice of a trial date is inadequate where it is sent four days prior to trial. ORS 153.073 requires at least 5 days’ notice for a violation trial. Here, the court sent an initial notice with the wrong address 30 days before trial. The court then sent a correct notice too late. Thus, the court was not legally allowed to enter a judgment of default on the violation. Per curiam. [http://www.publications.ojd.state.or.us/docs/A149647.pdf ''State v Worthington''], ___ Or App ___ (Feb. 6, 2013). |
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| − | But note that [http://scholar.google.com/scholar_case?case=5775942265335415294&q=139+579&hl=en&as_sdt=4,38 State v. Sumerlin] cites legislative history that says the recklessly endangering statute “covers potential risks as well as cases where a specific person is within the zone of danger.” 139 Or App at 587 n 7.
| + | * '''Failure To File Timely Appeal Is a Sufficient PCR Claim—No Need To Show Prejudice:''' A PCR claim of ineffective assistance is adequately pled where petitioner asserts that counsel failed to file a timely appeal after he has been requested to do so. The petitioner does not need to demonstrate prejudice in these circumstances. ORCP 21 A(8). [http://www.publications.ojd.state.or.us/docs/A148773.pdf ''Cavett v Coursey''], ___ Or App ___ (Feb. 6, 2013). |
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| − | I think that that kind of straddling described above (sometimes there’s a specific victim, sometimes not) is inconsistent with the categorical definition of victim at issue in Glaspey and Harbert. Consequently, I think that Sumerlin should be revisited in light of Glaspey‘s determination of who or when there is a victim. If the COA recognizes that they can’t have it both ways (sometimes there’s a victim, sometimes not), and I think under Glaspey they can’t, then they may find there aren’t discrete victims and overrule [http://scholar.google.com/scholar_case?case=5775942265335415294&q=139+579&hl=en&as_sdt=4,38 State v. Sumerlin].
| + | * '''Consent To Search Is Involuntary When Given Under the Threat of Bogus Traffic Citations:''' Consent to search is not voluntary if given in response to an officer’s threat to issue additional citations, when the officer had no legal basis for those additional citations. Per Curiam. [http://www.publications.ojd.state.or.us/docs/A148323.pdf ''State v. Beaudreau''], ___ Or App ___ (Feb 6, 2013). |
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| − | Regardless, the jury would have to find separate victims, which the state may find problematic if there aren’t separately named victims in each count in the indictment. See [http://scholar.google.com/scholar_case?case=4241908138814916785&q=224+493&hl=en&as_sdt=4,38 State v. Westbrook], 224 Or App 493 (Dec 24, 2008)(“ The problem with the application of Article I, section 44(1)(b), under these circumstances is, as defendant noted in the trial court, that the indictment did not allege (and defendant did not admit) that the relevant crimes involved separate victims. When an error involves a deprivation of the Sixth Amendment right to a jury determination of facts necessary to support sentences, we must remand for resentencing unless we can conclude that the error is harmless beyond a reasonable doubt. [http://scholar.google.com/scholar_case?case=86186630537368584&q=No.+05-83&hl=en&as_sdt=2,38 Washington v. Recuenco], 548 US 212, 126 S Ct 2546, 165 L Ed 2d 466 (2006).”)
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| − | '''Sex Abuse''' (e.g., one count genitals, one count breasts): the strange procedural history of [http://scholar.google.com/scholar_case?case=8916869880130091692&q=177+511&hl=en&as_sdt=4,38 State v. McCloud], 177 Or App 511 (2001) and [http://scholar.google.com/scholar_case?case=14575932725733386425&q=A112227&hl=en&as_sdt=4,38 State v. McCloud], 184 Or App 659 (2002) creates an appearance of confusion on this issue even when there really isn’t any. (Short version: McCloud II reversed McCloud I after relying on a case that has since been disavowed. Without question, McCloud I is the more accurate statement of current law.) If the defendant is charged with three counts of sex abuse, for contact with the breasts, genitalia and anus, all three counts would merge into a single conviction unless there is a sufficient pause. Aside from reading the McCloud opinions above, look at [http://scholar.google.com/scholar_case?case=11680379839801530401&q=236+339&hl=en&as_sdt=4,38 State v. Watkins], 236 Or App 339 (July 28, 2010), for a perfectly analogous situation in which seven counts of assault, arising out of seven stabs of the victims, resulted in one only convictions.
| + | {{wl-publish: 2013-02-06 14:30:02 -0800 | Jwestover }} |
| − | | + | {{wl-publish: 2013-02-06 14:30:02 -0800 | abassos }} |
| − | '''Resisting Arrest of Two Officers'''
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| − | Where defendant committed a single offense of resisting the contemporaneous efforts of the two officers to arrest him, it is plain error to not merge the charges into a single conviction. Defendant here did not separately resist each officer but made a single act of resisting arrest while both officers attempted to arrest him at the same time, since there was no lapse of time to separate the act(s) of resisting arrest, the trial court should have merged the separate charges into one conviction. [http://www.publications.ojd.state.or.us/docs/A144611.pdf State v. Birchard].
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| − | '''ID Theft'''
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| − | The multiple convictions for each ID from victim’s wallet in the possession of Defendant should have merged into one ID Theft conviction. Per Curiam reversal.<br /><br />[http://www.ryanscottlaw.com/ Ryan Scott] gives some context to the case:<br /><br />''Todays per curiam opinion in State v. MacDonald holds that a bunch of IDs — in the name of a single person — all merge into one. The important part of the decision is that it reaffirms, yet again, that the existence of multiple items of contraband is not, by itself, an obstacle to merger. So, 12 rocks of cocaine — they merge into one PCS. 12 firearms, one felon in possession. 12 fake $100 bills, one Forgery 1. (State v. Merrick.) 12 pieces of ID, one count of ID Theft. 12 nude photos of children, one count of Encouraging. Now, those last two examples come with caveats. The caveat is the same for each: they don’t merge if there are separate victims. But as St v. Betnar opined, whether or not a child in the photos is a victim of “encouraging” is an open question. And whether the person who is named in the ID is a victim of Identity Theft would be at odds with St v. Graves (in a forgery case, the person who is going to be defrauded — not the person whose name was used — is the victim).''
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| − | State v. MacDonald, 232 Or. App. 431, 222 P.3d 718 (Dec. 2009)
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| − | '''ID Theft – same “stolen identity”''' in each count — Merge: [http://scholar.google.com/scholar_case?case=6950183199943394962&q=232+431&hl=en&as_sdt=4,38 State v. Alasdair Mac Donald], 232 Or App 431 (Dec 9, 2009). From the opinion: “The five counts of identity theft arose from defendant’s possession of the victim’s wallet, which contained various forms of the victim’s personal identification. On appeal, defendant contends that ‘[t]he trial court erred in failing to merge Counts 1, 3, 4, 5, and 6 into one conviction of identity theft.’ According to defendant, ‘[b]ecause [his] conduct constituted multiple violations of the same statutory provision, harmed the same victim, and was simultaneous rather than separated by any pause,’ the trial court should have merged the identity theft convictions. The state concedes that the trial court erred in that regard. We agree and accept the concession.” Reaffirmed in [http://scholar.google.com/scholar_case?case=10935911879552228560&q=236+184&hl=en&as_sdt=4,38 State v. Hathaway], 236 Or App 184 (June 30, 2010)
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| − | Though expected, this is a great opinion, not just for ID Theft cases but also any case in which there are multiple “things,” e.g., guns in a felon in possession case.
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| − | And again, no issue of “sufficient pause,” since there is no pause when items are possessed simultaneously.
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| − | '''ID Theft''' – different stolen identities on the pieces of ID – Unknown whether they merge, but the Oregon Court of Appeals heard oral argument on this issue in January, 2011, so expect an answer before 2012.
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| − | The still-unanswered question occurs when the defendant is in possession of multiple pieces of ID, as in [http://scholar.google.com/scholar_case?case=6950183199943394962&q=232+431&hl=en&as_sdt=4,38 State v. Mac Donald] (see above), except that the identities on the IDs are different. Whether those counts merge hinges on what constitutes a “victim”, given that one can be convicted of ID Theft for stealing the identity of an '''imaginary person'''. There are two different approaches to this issue. First, you could argue that you can’t have imaginary victims, and therefore the statute doesn’t contemplate a victim. If no victim contemplated by statute, all counts from the same criminal episode should merge.
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| − | Alternatively, if there is a victim, it would be the person who is or would be defrauded, not the person whose name is used to defraud. See [http://scholar.google.com/scholar_case?case=13383581921053792672&q=92+642&hl=en&as_sdt=4,38 State v. Graves], 92 Or App 642, 759 P2d 1121 (1988) (concluding that a defendant who conspired to have nine checks belonging to Paramount Business cashed a nine different banks was properly convicted of nine counts of forgery because the nine banks were the victims of the conspiracy; Paramount Business, on the other hand was not a victim). In this scenario, failure of the state to prove the defendant intended to defraud different people would result in merger of all counts.
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| − | '''Felon in Possession:''' Merge, if there isn't a "sufficient pause" between counts. See [[Blog:Main/21_Findings_of_Guilt;_One_Conviction | St v. Torres]], in which the COA upheld the merger of 21 counts of felon in possession for 21 guns kept in one place. Where the court has apparently gone of the rails is in holding that guns located in different places around the house would permit a finding of either a sufficient pause or separate criminal episodes, which would defeat merger.
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| − | For federal discussion of this issue, see [http://scholar.google.com/scholar_case?q=No.+05-30457&hl=en&as_sdt=2,38&case=2131333872750938452&scilh=0 United States v. Ankeny], 502 F.3d 829 (2007) for a federal analysis that might help with the state analysis. (“In United States v. Szalkiewicz, 944 F.2d 653, 653-54 (9th Cir. 1991) (per curiam), we held that, regardless of the number of firearms involved, there is only one offense of being a felon in possession unless there is a showing that the firearms were ‘stored or acquired at different times and places.’ Further, the separateness of acquisition or possession must be found by a jury (or, presumably, admitted by the defendant). Id.; see also United States v. Keen, 104 F.3d 1111, 1118 n.11 (9th Cir. 1997) (same).”)
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| − | Two '''Thefts by Taking''' from one store, in the same episode, merge when no evidence of a sufficient pause. [http://scholar.google.com/scholar_case?case=8768037230946063916&q=234+177&hl=en&as_sdt=4,38 State v. Huffman], 234 Or App 177 (March 3, 2010) Could easily have gone the other way, had evidence of a sufficient pause been presented.
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| − | '''Abuse of a Memorial:''' merge, if no finding of “sufficient pause.” [http://scholar.google.com/scholar_case?case=13368117995629074846&q=234+301&hl=en&as_sdt=4,38 State v. Bowers], 234 Or App 301 (March 17, 2010).
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| − | '''Money Laundering:''' merge. Three different theories of Money Laundering, three different counts, one conviction. [http://scholar.google.com/scholar_case?case=14471223527146426853&q=236+179&hl=en&as_sdt=4,38 State v. Banks], 236 Or App 179 (June 30, 2010)
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| − | '''Possession of a Stolen Motor Vehicle and Unlawful Use of a Motor Vehicle:''' merge. Same car, one conviction. [http://scholar.google.com/scholar_case?case=4683427708028172557&q=State+v.+Noe+242+or.app.+530&hl=en&as_sdt=2,38 State v. Noe], 242 Or App 530 (April 13, 2011)
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A non-traffic violation is a conviction for the purposes of the expungement rule that a person may not have any “other” convictions in the preceding 10 years. Here, defendant pled no contest, in 2010, to Public Urination, a municipal code violation. Thus, his 2007 conviction is not eligible to be set aside until 2020 (10 years from the violation conviction). State v. Roberts, ___ Or App ___ (Feb. 6, 2013).
An open gate and two signs reading “PRIVATE PROPERTY” (as opposed to “no trespassing”) were insufficient to indicate the defendant’s clear intent to exclude uninvited visitors. Thus, an officer’s warrantless entry onto defendant’s property to investigate the possession of a stolen car was not unlawful. State v. Cam, ___ Or App ___ (Feb. 6, 2013)
In a case involving sexual abuse of a child, where the crime is reported long after its occurrence, evidence of prior uncharged sexual contact between the defendant and child is permissible non-character evidence relevant to:
Because the maximum indeterminate sentence for a B felony is 120 months, it is plain error to sentence a defendant to a longer period. Here, 144 months for an Assault II. Since the state has no valid interest in defendant serving an unlawful sentence, the court uses its discretion to remedy the error. State v. Aitken, ___ Or App ___ (Feb. 6, 2013).
A sufficient pause occurs only if one assault ends before the other begins. Here, defendant stabbed Victim 1 in the back and yelled for everybody to stay out of his business. He then began moving towards Victim 2. Victim 1 intercepted defendant, and in the resulting scuffle defendant stabbed Victim 1 in both arms. The court finds there is evidence to support the trial court’s finding of a sufficient pause, preventing merger of the two assaults. State v. Aitken, ___ Or App ___ (Feb. 6, 2013).
