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| | The OCDLA Library of Defense is a digital manual for criminal defense built by the collective contributions of OCDLA members. Ultimately, it will contain every law, every case, every expert, every resource and every good idea an Oregon defense attorney might need. But only if you help us out. If you visit a page on this website that is missing a case or has a typo, please [[How_To_Edit|edit the page]]. You can even reorganize or rewrite the page if you're feeling ambitious. If you have any questions or suggestions, please email me at: '''Alex Bassos at abassos@gmail.com''' | | The OCDLA Library of Defense is a digital manual for criminal defense built by the collective contributions of OCDLA members. Ultimately, it will contain every law, every case, every expert, every resource and every good idea an Oregon defense attorney might need. But only if you help us out. If you visit a page on this website that is missing a case or has a typo, please [[How_To_Edit|edit the page]]. You can even reorganize or rewrite the page if you're feeling ambitious. If you have any questions or suggestions, please email me at: '''Alex Bassos at abassos@gmail.com''' |
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| | <h2>'''Recent [[The_Blog|Blog]] Posts'''</h2> | | <h2>'''Recent [[The_Blog|Blog]] Posts'''</h2> |
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| − | * [https://libraryofdefense.org/content/best-argument-ever-merger-dcsmcs-and-pcs Best Merger Arg Ever - DCS/MCS/PCS] | Ryan Scott
| + | {{Special:Wikilog/Blog:Main/5}} |
| − | * [https://libraryofdefense.org/content/restitution-appeals-and-little-known-statute Restitution Appeals and a Little Known Statute] | Ryan Scott
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| − | * [https://libraryofdefense.org/node/6277 Preservation at its Most Challenging] | Ryan Scott
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| − | * [https://libraryofdefense.org/node/6276 "Are you for or against the dog this time?" SCOTUS on drug-detection dogs] | Ryan Scott
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| − | * [https://libraryofdefense.org/node/6275 Ninth Circuit recognized that even sex offenders have a "particularly significant liberty interest" in family relationships] | Ryan Scott
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| − | <h2>'''This Week's Cases'''</h2>
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| − | [[File:negligence.jpeg|100px|right]]
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| − | '''Or.S.Ct: Standard for Criminal Negligence'''
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| − | A criminally negligent state of mind does not require “seriously blameworthy” conduct or that a defendant’s conduct shows an “indifference to consequences”; it requires only that the risk of a particular result from defendant’s conduct be “substantial and unjustifiable” and that failure to be aware of said risk is a “gross deviation” from a reasonable standard of care. Whether conduct exhibits a criminally negligent state of mind is heavily fact-dependent. Here, defendant was guilty of criminally negligent homicide in a vehicle collision where facts showed he was more than “merely inattentive”: he was driving in a known “safety corridor” under hazardous conditions, he was a professional driver who should have been aware of these conditions, several witnesses observed him driving unsafely prior to the collision, and the collision was avoidable. The Oregon Supreme Court also affirmed State v Betts (384 P2d 198, 1963) in noting that evidence of prior conduct logically permits an inference of an ongoing state of mind.
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| − | State v Lewis, ___Or___ (2012)
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| − | [[File:Bruised-leg.jpeg|100px|right]]
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| − | '''A Superficial Bruise Does Not Qualify as a Physical Injury'''
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| − | For the purposes of first-degree criminal mistreatment, “physical injury” means “impairment of physical condition or substantial pain." ORS 161.015(7). In turn, "impairment of physical condition" requires "harm to the body that results in a reduction in one's ability to use the body or a bodily organ for less than a protracted period of time." State v. Higgins, 165 Or App 442(2000). Here, defendant admitted to spanking her 16-month-old across his buttocks, which made the child cry and caused a bruise. However, the child’s doctor testified that the bruise was ‘superficial,’ and the child had full range of motion. Thus, there was no evidence that the bruise was a ‘physical injury’ for purposes of criminal mistreatment. State v. Wright
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| − | '''Increase in “Look-Back” Period for DUII Diversion Is Not an Ex Post Facto Violation'''
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| − | The five-year increase in the “look-back” period for DUII diversion eligibility does not result in “greater or additional punishment” for DUII such that the increase is an ex post facto violation. The change in eligibility requirements was not an increase in “punishment” because the primary purpose of the change was to be a procedural alternative to punishment, not to change the crime of or sentence for, DUII. State v. Carroll, __ Or App __ (2012).
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| − | '''Particularity Requirement for Admitting Abuse-Victim Hearsay'''
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| − | The pretrial notice required under OEC 803(18a)(b) for admitting an abuse victim’s out-of-court statements must identify the particular statements to be offered. Here, the state violated the rule by only providing copies of reports and stating that the reports “contain the particulars of statements made by [victim] that the state intends to offer.” State v. Bradley, __ Or App __ (2012); see also State v. Wood, __ Or App __ (Oct. 24, 2012).
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| − | '''Aiding-and-Abetting After-the-Fact Is Not a Crime'''
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| − | Oregon law does not recognize an aid-and-abet after-the-fact theory of criminal liability because “the aid-and-abet statute plainly applies only to conduct prior to or during the commission of a crime.” Here, the trial court erroneously convicted defendant of fraudulent use of a credit card for helping the principal actor escape arrest after defendant learned of the theft and misuse of the credit card. The court exercises its discretion to correct the trial court’s unpreserved error and remands for a new trial because defendant “stands convicted of something that is not a crime.” State v. Barboe, __ Or App __ (2012).
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| − | '''Merger, Valuation of Stolen Property, and Restitution in Juvenile Proceedings'''
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| − | The court affirms the juvenile court’s judgment of jurisdiction for acts that, if committed by an adult, would constitute first-degree arson, aggravated first-degree theft, and two counts of second-degree burglary. The two counts of burglary do not merge because youth had sufficient time to renounce his criminal intent between entering a school building with intent to commit theft and later reentering with intent to commit arson. ORS 164.115(1), governing the valuation of property under the theft statutes, does not bar the court from considering the cost of replacements as a factor in determining fair-market value. Here, the juvenile court properly considered the cost of replacement computers in finding that the stolen property was worth at least $10,000 as required for aggravated first-degree theft. The term “victim” for restitution purposes in juvenile proceedings includes insurance companies. “Victim” is given its definition in the Criminal Code, not the juvenile code. State v. G.L.D., __ Or App __ (2012).
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| − | '''Stop – Reasonable Suspicion'''
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| − | An order to come out of a house with your hands up is a stop. Here, there was reasonable suspicion for the stop where defendant entered a house occupied by two murder victims, didn’t match the description of anyone who lived there, and didn’t answer the telephone when officers called the house. Also, officers had probable cause to enter the house since there was probable cause to believe that there was evidence of recent murders inside and that it was at risk of being destroyed. And, for the same reasons, there were exigent circumstances that required the officers to secure the house. The officers gained probable cause to arrest when defendant came out of the house and they noticed blood on his pants. Finally, it was not a violation of Miranda when defendant asked if he needed an attorney and the officers responded that “It’s up to you.” Defendant’s statement was equivocal and officers responded appropriately. State v. Hudson, __ Or App __ (2012).
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| − | '''Dependency > Preservation > Failure to Make Required Findings'''
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| − | Because a dispositional order is required at the conclusion of a dependency hearing, the contesting party must object at that time if a juvenile court fails to include statutorily required findings under ORS 419B.340(2) in order to preserve the issue for appeal. DHS v. C.C.
| + | <h2>'''Appellate Review'''</h2> |
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| − | '''Dependency > Subject Matter Jurisdiction'''
| + | {{Special:Wikilog/Blog:Appellate Ct Review/1}} |
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| − | In a custody case involving multiple jurisdictions, ORS 109.741(1)(b) confers jurisdiction to Oregon when no other state has jurisdiction under paragraph (1)(a) and both subparagraphs (1)(b)(A) and (1)(b)(B) apply. Here, mother had “a significant connection” with Oregon because she:
| + | <h2>'''Appellate Review'''</h2> |
| − | * had belongings in Oregon
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| − | * had lived in the state for four years
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| − | * received prenatal care in Oregon
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| − | * applied for and collected public assistance in the state.
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| − | Furthermore, mother's contacts with health care institutions and professionals, her interactions with DHS, and her erratic conduct constituted relevant evidence "concerning the child's care, protection, training and personal relationships" in Oregon under ORS109.741(1)(b)(B). Therefore, the Oregon court had jurisdiction. DHS v. S.C.S
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| − | '''Dependency > Continued Jurisdiction'''
| + | {{Special:Wikilog/Blog:Appellate Ct Review/1}} |
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| − | A court may not base an order for continued jurisdiction on unalleged facts unless the underlying petition provided sufficient notice of what the parent must do to prevent continued jurisdiction. Here, the petition stated that the mother had alcohol problems and pleaded guilty to assault and strangulation. Thus, mother had sufficient notice that her anger problems were at issue. DHS v. M.M.B.
| + | <h2>'''OR Supreme Review'''</h2> |
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| − | '''Failure to Demand a Speedy Trial'''
| + | {{Special:Wikilog/Blog:OR Supreme Ct Review/1}} |
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| − | Where a defendant is in prison and knowingly fails to demand trial, the delay is attributable to the state, but it is otherwise reasonable under ORS 135.747. Here, defendant failed to appear for two separate court dates for a misdemeanor DUII. He was arrested on a bench warrant, and shortly thereafter, his probation on an unrelated charge was revoked. While in the DOC, defendant waited nine months to demand trial. The court holds that because defendant knowingly failed to demand, the nine-month delay was reasonable, and the cumulative delay of 16 months attributed to the state was also reasonable. State v. Bircher.
| + | <h2>'''US Supreme Review'''</h2> |
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| − | '''MJOA – Variance between Indictment and Evidence'''
| + | {{Special:Wikilog/Blog:US Supreme Ct Review/1}} |
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| − | Variance between the indictment and the evidence at trial is prejudicial, “[i]f thedefendant would need to develop a different argument to contend with the variance.” State v. Boitz, 236 Or App 350, 356 (2010). Here, defendant was charged with hindering prosecution. The indictment alleged that the defendant “did***prevent, by means of deception, the discovery or apprehension of Shane Culp.” This differed from the statutory language and jury instruction which states that a person hinders prosecution where he, “[p]revents or obstructs, by means of * * * deception, anyone from performing an act which might aid in the discovery or apprehension ofsuch person[.]” Defendant’s argument was that defendant did not prevent sheriffs from apprehending Shane Culp since the sheriffs decided that defendant was lying and ultimately arrested him. Instead, defendant prevented the sheriffs from immediately searching the house which would satisfy the statute but not the indictment. Thus, the variance in this circumstance was prejudicial, and the court reverses. State v. Hansen
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| − | '''DMV Can’t Suspend a License Twice for the Same Failure to Pay a Fine'''
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| − | Where the DMV has already suspended a person’s license for the maximum statutory period for failure to pay traffic fines, the DMV cannot re-suspend the license because the driver continues not to pay the fine. Here, because defendant had already been suspended for the statutory period, DMV lacked the authority to suspend his license again, and the appropriate remedy is exclusion of the later suspension order. Richardson v. DMV.
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The Library |
Even a Child Can Edit This Website
The OCDLA Library of Defense is a digital manual for criminal defense built by the collective contributions of OCDLA members. Ultimately, it will contain every law, every case, every expert, every resource and every good idea an Oregon defense attorney might need. But only if you help us out. If you visit a page on this website that is missing a case or has a typo, please edit the page. You can even reorganize or rewrite the page if you're feeling ambitious. If you have any questions or suggestions, please email me at: Alex Bassos at abassos@gmail.com
Recent Blog Posts
Today, the Oregon Supreme Court issued an opinion in State v. Azar. The split opinion significantly narrowed the scope of one particular theory of felony computer crime. Even if you don't have a felony computer crime case, it is worth reading -- both the majority opinion and the dissent -- on the circumstances in which legislative history can narrow the scope of an otherwise broadly written statute.
And the opinion also suggests a potential defense to theft by selling in (of course) a footnote.
- 2 Under ORS 164.095(1),“[a] person commits theft by receiving if the person receives, retains, conceals or disposes of property of another knowing or having good reason to know that the property was the subject of theft.”
- Although “disposes” is not defined by statute, defendant does not dispute that selling property that a person knows or should know is stolen constitutes theft by receiving. See State v. Farmer, 44 Or App 157, 160, 605 P2d 716 (1980) (reaching that conclusion based upon ORS 164.055(1)(c), which provides that theft by receiving constitutes theft in the first degree when “committed by buying, selling, borrowing or lending on the security of the property”). We assume for purposes of the present discussion that selling stolen property with the requisite mental state constitutes theft by receiving, but we express no opinion on when in the course of a transaction an online sale qualifies as “dispos[ing],” whether at the time of the sale, at the time the property is physically transferred, or at some other time. [Emphasis added.]
If I understand the point of this footnote, the Court is saying that selling stolen property is not necessarily "disposing of the property," and therefore not necessarily theft-by-receiving, until the property is transferred in some way. So, for example, entering into an agreement to sell stolen property, or even receiving money for said property, may not constitute theft-by-receiving until the property is delivered.
I don't anticipate many situations where this would arise, but if it does, citing that footnote at MJOA might make you look like a genius.
I had previously had a blog post where I argued that the first time a gun minimum is imposed, it must be imposed on the most serious offense to which the gun minimum was attached. Therefore, if a defendant is charged with murder with a firearm and felon in possession of a firearm, the gun minimum must be imposed on the murder (where, admittedly, it would have no effect.)
However, is there a time when you'd want the gun minimum imposed on a later count, despite the law? That is, where it's something you'd rather negotiate for. Yes.
First, if the state seeks to impose prison on one count and probation on the other, imposing the gun minimum on the non-prison count would likely increase the availability of sentence-reduction programs (AIP, transitional leave) that would not be available on a prison sentence with the gun minimum finding, even if the gun minimum is not imposed.
Second, even if the defendant is looking at prison on both counts, putting the gun minimum sentence on a non-M11 count may allow a greater reduction for earned time.
For example, assume defendant reaches a deal where he is going to be sentenced to attempted murder and felon in possession. Both allege the gun minimum, and it's the defendant's second gun minimum, so he is looking at 10 years mandatory. If the gun minimum is imposed on the attempted murder, the defendant's 120 month sentence would have 90 months subject to ballot measure 11 and therefore without earned time. The defendant could get earned time on remaining thirty months. Assuming all earned credits are in fact earned, the defendant would serve a sentence of 114 months. But if the defendant receives 90 months on the attempted murder charge and 120 months on the charge of felon in possession of a firearm to run concurrently, the defendant would get earned time on all 120 months, thereby reducing his total time to 96 months. (120-24). This is not speculation. Samson v. Brown, 486 P. 3d 59 (2021)
THIS POST HAS BEEN AMENDED. In my opinion, one thing that sets a great defense lawyer apart from a good defense lawyer is the quality of their special jury instructions.
Special jury instructions have a number of advantages. If given, they can put the weight of judicial authority behind your argument. It's not just you saying what the state needs to prove, for example. It's what the judge is saying. If the instruction is not given, the standard of review on appeal is very defense-friendly. To obtain a reversal on an ungiven special jury instruction, you need the instruction to be a correct statement of the law and any evidence in the record that would justify it. This is the reverse of the standard of review for MJOA, where the evidence is viewed in the light most favorable to the state. (To be precise, it's also important that the instruction is not only a correct statement of the law but also is not unduly slanted toward the defendant.)
When are jury instructions most valuable? Usually when the statute is broadly written, but either the legislature or the case law has narrowed the scope of the statute. That happened with the crime of kidnapping, for example. Back in 2017, I spoke at a conference in Portland and recommended -- among many other things -- the following special jury instructions:
→ continue reading...One longstanding argument is that the way the laws are written, a person's ODL should not be suspended because of a conviction for either unlawful use of a vehicle or possession of a stolen vehicle. The reasoning is simple. The law allows a suspension if an element of the crime includes a "motor vehicle." Neither UUV or PSV have an element that specifies "motor" vehilce, and the fact that the crime may have involved a motor vehicle doesn't make "motor vehicle" an element of the crime.
As far as I know, this issue hasn't made it to the Court of Appeals. Part of the reason for that is that certain prosecutors have conceded the issue. Part is that some defense attorneys aren't aware of the issue. Another reason, I suspect, is that even defense attorneys who are aware of the issue decide it's not worth fighting over when the defendant is going to get a two or three-year prison sentence and the license suspension is only for a year. No driving in prison, anyway.
Except that if the trial judge does impose a license suspension of one year, even if the suspension order indicates that the suspension will begin at the time of sentencing, DMV won't actually suspend the license until the defendant is freed from prison, adding to the hardship that comes with leaving prison. The more hardship, the increasing likelihood the defendant will recidivate.
If you want to help your clients stay crime-free when they get out of prison, argue against the license suspension and if you lose, send the issue up to appeal. It won't just be your client who benefits.
If a defendant properly raises a claim of self-defense, the state must disprove that defense. The jury will be instructed as follows:
- A person is justified in using physical force on another person to defend herself from what she reasonably believes to be the use or imminent use of unlawful physical force. In defending, a person may only use that degree of force which she reasonably believes to be necessary. The burden of proof is on the state to prove beyond a reasonable doubt that the defense does not apply.
But what if a person believes they are acting in self-defense but their belief is unreasonable? The state will argue the defense does not apply. But is someone who intentionally kills someone no more morally culpable than someone who kills out of an unreasonable misapprehension of the need to defend themselves? Should the law recognize a difference between the two?
Arguably, the law already does so, albeit indirectly. You might be able to get there by applying a mental state to the element of self-defense. All material elements for crimes in the criminal code have mental states barring express language from the legislature. "Not acting in self-defense" is an element (i.e., something the state must prove in order to obtain a conviction.)
For more on this argument, please e-mail me directly.
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