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Assume a car is pulled over for a traffic stop on August 1st. It turns out the driver was supposed to register as a sex offender on January 1st, but he had not. When taking him into custody, the police find a baggie of cocaine. He is subsequently charged with both crimes in a single indictment.
I previously wrote a blog post -- and a demurrer, available upon request -- arguing that the indictment should be dismissed because the counts are improperly joined. The "failure to register" did not occur during the traffic stop. It occurred seven months earlier. For that reason, the two crimes are not from the same criminal episode. The two crimes are not part of a common scheme or plan. They are not same or similar. Because the improper joinder is plain on the face of the indictment and regardless of any joinder language in the indictment, the proper vehicle is a demurrer, and the proper remedy dismissal.
But that's not why I'm writing this post. Rather, this post is based on the news that the Oregon Supreme Court has granted review to a case with the following issues:
- (1) Whether time is a material element of the crime of failing to report as a sex offender.
- (2) Whether the state may satisfy its burden of proving that a crime occurred on the date pleaded in an indictment by providing evidence that the crime occurred at an earlier date than that pleaded in the indictment.
The Court of Appeals' opinion is State of Oregon v. Edwardo Luis Ribas, 333 Or App 789, 554 P3d 280 (2024) (A178917) (S071443) (on review from the Linn County Circuit Court)
Technically, not the same legal issues as the demurrer described above, but the two are highly interrelated.
The Supreme Court recently took review of a case where the question presented is:
- Whether, for the purposes of inventorying property in lawful policy custody, Article I, section 9, of the Oregon Constitution allows police officers to open and search inside a closed container?
The Court of Appeals opinion the higher court is reviewing is State of Oregon v. Jason Thomas Wilcox, 335 Or App 743, 560 P3d 91 (2024) (A175891)
(S071582) (on review from the Washington County Circuit Court)
The Oregon Supreme Court has decided to review a Court of Appeals decision that held a license-suspension statute applied to convictions for UUV. From the press release:
- State of Oregon v. Joseph Adam Schriner, 336 Or App 873, 562 P3d 296 (2024) (A179760) (S071692) (on review from the Washington County Circuit Court) (Masih, J. did not participate in the decision to allow review)
- Defendant has been granted review of a Court of Appeals decision that affirmed a trial court's revocation of defendant's driver's license under ORS 809.409. Defendant had been charged with unlawful use of a vehicle (UUV) under ORS 164.135, after he admitted to "knowingly operating a motorcycle" without the :owner's consent. Despite charging defendant with UUV -- which does not mandate driver's license revocation -- the state argued that revoking defendant's driver's license was mandatory under ORS 809.409(4), which requires revocation "upon receipt of the conviction for any felony where a material element involves :the operation of a motor vehicle." Under that statute, the state contended, revocation of defendant's license was mandated, because the state's theory of UUV and the facts "involved the defendant's operation of a motor vehicle." Defendant objected to the state's theory, arguing that UUV does not have a material :element of "operation of a motor vehicle" because the crime of UUV can be committed by conduct other than operating a motor vehicle. The trial court revoked defendant's driver's license, and defendant was convicted of UUV.
- Defendant appealed, the Court of Appeals affirmed, and defendant petitioned for review.
- On review, the issues are:
- (1) Whether, to revoke a driver's license based on a felony with a material element involving the operation of a motor vehicle, a trial court must consider only the facts that satisfy the statutory elements of the felony.
- (2) Whether a trial court is authorized to revoke a defendant's driver's license based on that defendant's conviction for unlawful use of a vehicle (UUV).
Next 20 Articles Case Reviews
SUFFICIENCY OF EVIDENCE - Recanting victim EVIDENCE - Other bad acts SEARCH WARRANTS - Specificity EVIDENCE - Evidence outside the record SENTENCING - Merger → read the full summaries... CLOSING ARGUMENT - Improper argument by prosecutor DEFENDANT'S STATEMENTS - Belated Miranda warnings HEARSAY AND CONFRONTATION - Sex-abuse hearsay exception CLOSING ARGUMENT - Improper argument by prosecutor MUNICIPAL AND JUSTICE COURTS - Appeal → read the full summaries... DEFENDANT'S STATEMENTS - Uncharged offenses CLOSING ARGUMENT - Improper argument by prosecutor → read the full summaries... CLOSING ARGUMENT - Improper argument by prosecutor DEFENSES - Sufficiency → read the full summaries... EVIDENCE - Delayed reporting → read the full summaries... _________________________
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Search and Seizure
Privacy Interest,
Stops,Arrests, Consent, Warrant Exceptions, Suppression Exceptions, Search Warrants
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Forensic Science
Ballistics, Bitemarks, Bloodstains, DNA, Eyewitness ID, Fingerprints, Handwriting ID, Polygraphs, Shaken Baby
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Evidence Code
Procedure, Relevance, Privileges, Lay Witnesses, Experts, Hearsay, Physical Evidence
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Immigration
Padilla, Agg Felonies, Inadmissibility, Removability, Moral Turpitude, Naturalization, Juveniles, U-Visas
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Crimes
Measure 11, Drugs, Sex Crimes, Homicide, Property, DUII, Child Abuse, Other Crimes
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Self Incrimination
Evidentiary Burdens, State Compulsion, Custody/Compelling Circumstances, Right to Silence, Impeachment
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Mental States
Civil Commitments, Aid & Assist, GEI, Disordered Mental State, Mens Rea, Testing, DSM-IV
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Defenses
Alibi, Necessity, Speedy Trial, Self Defense
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Oregon Constitution
Speedy Trial, Right to Counsel, Confrontation, Double Jeopardy, Equal Privileges, Ex Post Facto, Venue
|Trial Procedure
Charging Decision, Discovery, Right to Counsel, Pretrial Motions
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Extradition
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Veterans and Military Service
Created by Jess Barton.
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Sentencing
Criminal Episodes,Merger, Consecutive Sentences, Mandatory Minimums, Probation, Restitution, Collateral Consequences
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