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Revision as of 15:58, March 3, 2013
Felony Computer Crimeby: Ryan Scott • April 11, 2024 • no comments 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.
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. A Gun Minimum Sentencing Hackby: Ryan Scott • March 31, 2024 • no comments 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) Special Jury Instructions for Kidnappingby: Ryan Scott • January 12, 2024 • no comments 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...A Common Mistake Among Minor Felony Attorneysby: Ryan Scott • December 10, 2023 • no comments 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. Unreasonable Self-Defenseby: Ryan Scott • December 10, 2023 • no comments If a defendant properly raises a claim of self-defense, the state must disprove that defense. The jury will be instructed as follows:
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. Threatening to Go And Get a Gun: Is That UUW?by: Ryan Scott • December 5, 2023 • no comments If I point a gun at you in a menacing way, that will likely constitute the crime of Unlawful Use of a Weapon, barring any defenses. But what if I tell you that if you don't leave my neighborhood, I'm going to go inside, get a gun, and then come back out and shoot you? Is that UUW? Here's what the Oregon Supreme Said about the subject, when tasked with deciding whether the "use" in UUW encompassed threatening someone with a firearm.
State v. Ziska, 355 Or 799, 808, 334 P3d 964 (2014) Pointing a Firearm is Not Use of Deadly Forceby: Ryan Scott • December 4, 2023 • no comments More than once, I've had cases where the defendant was charged with unlawful use of a weapon for pointing a firearm at a trespasser. The prosecutor initially believed that even if the defendant reasonably believed he was acting in defense of his property, his actions were unlawful because you cannot use deadly force to protect property. You may already see the problem. Threatening the use of deadly force is not the actual use of deadly force. Consequently, the limitation on defense of property -- you can't use deadly force -- does not apply when the deadly force is merely threatened. Don't take my word for it. Pointing a firearm at someone does not constitute the use of deadly force. State v. Burns, 15 Or App 552, 562, 516 P2d 748 (1973)(With respect to self defense, and limitations on the use of self defense, "the threat of deadly force does not constitute the use of deadly physical force."); State v. Taylor, 182 Or App. 243, 48 P3d 182 (2002) Consequently, when a defendant has merely pointed a firearm, and is claiming self-defense, it is error to instruct the jury on the “limitations of use of deadly force.” Taylor, 182 Or App at 248 (“We further conclude, under Burns, that the trial court erred in giving the instruction because there was no evidence that defendant actually used deadly physical force.” In Taylor, a firearm was pointed but not discharged. The defendant claimed self-defense. The jury was instructed on the limitations of deadly force. As in Taylor, giving the instruction was error. The Taylor court also found the error was not harmless. It agreed with defendant’s argument, which it quoted as follows:
Taylor, 182 Or App At 248. Anyway, I mention this, because this particular error may not be common, but they do happen, and I'm guessing I'm not the only defense attorney who's had a client in that situation. It usually takes awhile before issues of first impression start winning. This is the exception.by: Ryan Scott • November 15, 2023 • no comments Everyone knows my favorite legal issues involve arguments that aren't the law . . . yet. I have a personal list of arguments that I promoted that initially met with great resistance from the courts, prosecutors and other defense lawyers. Not all defense lawyers, but a lot. The most common argument I hear is that a number of defense lawyers are concerned that if they argue an issue that isn't firmly rooted in case law, they lose credibility with the judge. I disagree, for any number of reasons, but I've heard the argument enough that I know it's a real thing. But one issue I came up with last year won the first time it was argued and it hasn't stopped. Unfortunately, it's something that -- in many cases -- the state can fix, and they've started doing so. But there are exceptions and often those exceptions arise in cases back from the appeal or PCR, and if properly raised, the issue can substantially undermine the state's case. → continue reading...A Ballistics Test is a Searchby: Ryan Scott • November 10, 2023 • no comments Assume your client is arrested and his firearm is seized. There wasn't a warrant, just PC to seize the firearm. The police subsequently perform a ballistics test on the firearm and connect the firearm to earlier shootings. In that situation, you absolutely should move to suppress the ballistics test and all evidence that flowed from it. The reasons are as follows: → continue reading...The Portland City Code and Unlawful Possession of a Firearmby: Ryan Scott • November 5, 2023 • no comments Since the Bruen opinion from the United States Supreme Court, there have been 2nd Amendment challenges to felon in possession of a firearm (both facial and as-applied), felon in possession of body armor, unlawful possession of a concealed weapon and many more. Each of these has a chance of being successful and some in fact have been successful in certain federal courts. Nothing of course is guaranteed. However, there is one argument where I believe the odds are overwhelmingly in our favor. And that's a challenge to the Portland City Code's prohibition on carrying a loaded weapon. The key thing to know about the Portland City Code is that it prohibits open carry, as well as concealed carry. Why does that matter? See this quote from Bruen.
N.Y. State Rifle & Pistol Ass'n v. Bruen, 142 S Ct 2111, 2146-2147, 213 L Ed 2d 387, 35 427-429 (2022) [Emphasis added.] Bruen put the burden on the state to prove the existence of a historical analog to any modern-day firearm prohibition. The good news for the state is that there are plenty of examples of antebellum statutes regarding the open carry of firearms. The bad news for the state is that they were all found unconstitutional. I highly encourage defense lawyers to raise this argument. More than any other firearm prohibition, this one is likely to be found unconstitutional. The Mens Rea for Felony Murder of a Childby: Ryan Scott • November 4, 2023 • no comments This is going to be a very short post on a very complicated issue. Really more of an update. Assume a horrible accusation. The defendant is accused of assaulting a child, and the child dies as a result. To be guilty of "felony murder" in this situation, as opposed to a straight murder, the defendant does not need to intend the death of the child. But does the defendant have to at least know they are causing serious physical injury? Or is negligence enough, i.e., they fail to be aware of a substantial risk of causing serious physical injury? Post-Owen/Shiffer cases, the state will argue that the answer is "negligence." But Owen and Shiffer involved the Assault II and criminal mistreatment statutes where the legislative intent was unknown. Consequently, Owen and Shiffer are good cases for determining what attorneys and courts should do when the legislative intent is unknown -- at least in the context of assault -- but they tell us nothing about what to do when the legislative intent is clear. And they don't need to. If the legislative intent is clear, then we go with what the legislature intended. Pretty fundamental principle. In this case, the legislative intent is remarkably unambiguous. I have it if you need it. Prosecutor after prosecutor testified that for the crime of felony murder of a child resulting from assault, the defendant must know or intend to cause serious physical injury. Last month in Multnomah County, a judge agreed with the defense that the defendant must know or intend serious physical injury in order to be guilty of felony murder under this particular theory. It came up in the context of a bail hearing. It appears the State of Oregon will be filing a petition for a writ of mandamus on this issue, which means it will go straight to the Oregon Supreme Court. Such writs go on a much faster timeline than direct appeals, so if the state does follow through, we should have an answer within months. The Scope of OEC 803(18)(a)(b)by: Ryan Scott • November 4, 2023 • no comments An increasingly common situation is arising in child sex cases that are reversed by the appellate or in PCR. The state seeks to offer the prior trial testimony of the complaining witness under a hearsay exception of OEC 803(18)(a)(b). There are a couple of arguments worth making in response. The first is the purpose of OEC 803(a)(b) is so that the jury can evaluate the nature of the "disclosure." This is what State v. Hobbs, 218 Or App 298, 305, 179 P3d 682 (2008) stated. The statute is written quite broadly, but the scope of a statute can be narrowed by legislative intent. (State v. Gaines.) If legislative intent is simply to help the jury understand how and under what circumstances the disclosure was made, the next question becomes, "what is a disclosure?" Is it any discussion of the alleged crimes? Or is it when the child reveals something new and different? And is trial testimony -- at which point the child has told multiple people, from family, to CARES NW, to the police, to the DA, to the Grand Jury -- really a disclosure? If not, then the prior testimony shouldn't be admitted. If the hearsay exception allows it, then there is a question whether it is admissible under OEC 403. The argument here is that the cumulative nature of the testimony is inherently prejudicial because people are more likely to believe false things when they are repeated. The mechanism for how repetition impacts credibility was explained in How Liars Create the Illusion of Truth by Tom Stafford.
Id. [Bold added.] If the judge overrules the objection to the admission of the trial testimony, how much of the prior testimony should come in? The state will usually argue it all is admissible, and it will cite Hobbs, 218 Or App 298, 305, 179 P3d 682 (2008) as authority. But Hobbs does not go nearly as far as the state will likely claim. At issue in Hobbs was the victim's diary. The Hobbs court described it as follows:
Hobbs, 218 Or at 307. The appellate court noted that the type of disclosure at issue was within the scope of what the legislature intended. However, the Court also noted the full scope of the hearsay exception is unknown. The Court noted that "the outer limits of a statement 'concerning an act of abuse' may not be clear. . ." Id. at 305. The Court specifically said it did not need to decide those limits in that case. Id. It found the portions of the diary fell within the scope of the exception "regardless of any textual ambiguities regarding the scope of a statement 'concerning an act of abuse. . . .'" Id. at 306. I suspect large portions of the original trial testimony will blow past the reasonable limits of the hearsay exception. I recommend making a specific objection to individual statements in the testimony (again, assuming it is not kept out as a whole.) And you may want to apply those limits to the CARES NW, Liberty House or Children's Center interviews. As the COA state, we don't yet know the limits of OEC 803(18)(a)(b). Which means it's all the more likely a well-preserved objection will result in an appellate decision that will provide clarity (and maybe get the convictions overturned.) The Brown-Poston Demurrerby: Ryan Scott • September 28, 2023 • no comments This is from a Brown-Poston demurrer. SUMMARY OF ARGUMENT
Updated Argument on Gun Minimumby: Ryan Scott • September 24, 2023 • no comments Since my last blog post on the gun minimum in mid-August, I have significantly revised my memo that argues that the gun minimum must be imposed on the primary offense and cannot be deferred to a later (and non-M11) count. I have also added a constitutional argument. Be forewarned that cutting and pasting have made the formatting a bit wonky, but with that caveat, here is the substance of the argument: → continue reading...Upward Departuresby: Ryan Scott • September 13, 2023 • no comments Meg Huntington will be presenting on the law on upward departures this weekend at the OCDLA Conference in Newport. The materials for the conference have been made available to all attendees. I can tell you that her materials are very thorough, and there is no doubt that when I receive an upward departure notice in the future, I will be comparing the alleged factors to her materials. If you are unable to go to the conference, you should nevertheless order her materials. They are that useful. Can the Judge Pick and Choose Which Count To Impose the Gun Minimum On?by: Ryan Scott • August 16, 2023 • no comments A very common situation is this. The defendant is charge with a M11 offense, such as Robbery in the First Degree with a Firearm. They are also charged with Felon in Possession of a Firearm with a Firearm. The language in each count "with a firearm" refers to the gun minimum sentence enhancement that is codified at ORS 161.610. The "gun minimum" carries a minimum of 60 months (5 years) in prison, which makes it less than the mandatory minimum sentence for any M11 offense. However, the minimum can be suspended for the first gun minimum conviction, although whether it is suspended or not, a second gun minimum conviction carries a mandatory 10 years in prison. The first gun minimum can also only be imposed once. Assume the defendant is convicted of the charges above. Can the trial judge not impose the gun minimum on the robbery count and instead impose it on the felon in possession count? The advantage of doing so is that the felon in possession count -- because it has a separate "victim" than the robbery count -- can be run consecutively. In other words, imposing the gun minimum on the second count would permit a sentence of 150 months (90 plus 60) whereas imposing it on the first count would only allow a much shorter sentence. The argument is no, the judge cannot pick and choose which count to impose the gun minimum on. The reason why is as follows: → continue reading...What Can Brown Do for You?by: Ryan Scott • August 16, 2023 • no comments In September, I will be presenting at the OCDLA CLE in Newport. I will be speaking on severance, aka, having separate trials for different counts. You'll need to go to the conference for my full presentation, but I wanted to alert everyone to State v Brown, 326 Or App 46 (2023). In Brown, the Court of Appeals held that all counts that are joined for trial must be properly joined with all other counts. They rejected the argument that "if A is properly joined with B and B is properly joined with C, then A, B and C, can all be joined in one trial, even if count A and count C are not properly joined." Here's the most basic hypothetical I can think of. If the defendant -- a convicted felon -- is charged with murder in December by stabbing, and a second murder in January by shooting, he might fact the following charges: Count 1: Murder Count 2: Murder w/ a Firearm Count 3: Felon in Possession of a Firearm w/ a Firearm. Assume the murders are completely unrelated. Before Brown, the state would argue that count 1 is properly joined with count 2 because the counts are "same or similar." They would also argue that count 2 and count 3 are properly joined because they are from one criminal episode and part of a common scheme or plan. Post-Brown, the defendant would counter that count 1 and count 3 are not properly joined. They are not "same or similar." They are not part of the same transaction or a common scheme or plan. There is no independent basis for joining counts 1 and 3. Therefore, each murder should have a separate trial. There is no obligation for the defendant to show "substantial prejudice," although obviously each trial will be more fair if tried separately. Third Proportionality Post in a Rowby: Ryan Scott • August 3, 2023 • no comments There is another way I think we should be using the proportionality clause to attack sentences. It is when the exact same behavior can produce wildly different sentences depending on the charging creativity of the prosecutor. → continue reading...Proportionality Clause and Sentences Consecutive to Murderby: Ryan Scott • August 2, 2023 • no comments Does it make sense to impose a sentence that the defendant only serves after he has been rehabilitated? The following is taken from a memorandum of law set to be heard at the end of August, 2023. → continue reading...Proportionality Clause and Sex Abuse II Based on Ageby: Ryan Scott • August 2, 2023 • no comments Cruel and unusual punishment shall not be inflicted, but all penalties shall be proportioned to the offense. Here's my question. The identical crime can be treated by statute as either a misdemeanor or a felony. There is no legal distinction whether it is one or the other. Can both misdemeanor and felony punishment be proportionate to the exact same behavior? → continue reading...Next 20 Articles _________________________ |
Oregon Appellate Court, January 5, 2022by: Rankin Johnson • January 7, 2022 • no comments EVIDENCE - Child-sexual-abuse hearsay exception INTERFERENCE WITH MAKING A REPORT - Sufficiency EVIDENCE - Business-records hearsay exception → read the full summaries...Oregon Appellate Court, December 29, 2021by: Rankin Johnson • December 31, 2021 • no comments ACCUSATORY INSTRUMENTS - Dates → read the full summaries...________________________________________________ |