This Appellate Week
Evidence – No Foundation for Scientific Evidence in “Clear Case”
Lidar (laser distance) measurement is scientific evidence that does not require a foundational consideration of the Brown/O’Key factors because it is such a “clear case”. A “clear case” is one in which the science is so universally accepted and the technology so widely used that there is no question about the scientific foundation for the evidence. Once a court has found that it is a clear case or taken judicial notice, the burden shifts to the opposing party to show that the science is not universally accepted, widely used or sound for the purpose offered. State v. Branch
Speedy Trial – No Consent to Delay Where FTA at Indictment
Failure to appear in court pursuant to a citation with no knowledge of a subsequent indictment (even if the indictment stems from the same incident) does not count as consent to a delay of trial on the indictment. Citations and indictments are governed by different statutes and therefore are separate prosecutions for speedy trial purposes, whereas an information may be considered an action in the same prosecution. State v. Coulson
Merger – “Sufficient Pause” and Separate Convictions
To support separate convictions under the same statute for the same crime, the State must prove that there was a sufficient pause between the incidents for the defendant to renounce his criminal intent; otherwise, the convictions should be merged. Here, there was insufficient evidence showing that defendant’s theft of jewelry ended before his theft of a computer began and therefore the two counts of first-degree theft should be merged. State v. McConville.
Probation – Indeterminate Post-Prison Supervision Term Prohibited
If an imposed post-prison supervision term may be reduced so that it doesn’t exceed the statutory maximum, that PPS term is unlawfully indeterminate and is reversible plain error per ORAP 5.45(1). State v. Gutierrez.
Restitution – Hit and Run Property/Injury
A defendant convicted of failure to perform the duties of a driver when property is damaged is also liable for restitution related to personal injuries caused in the accident. The statute’s language is clear: the court may impose restitution of “any damages caused by the person as a result of the incident.” State v. Bassett
Civil Commitment- Dangerousness
During a civil commitment hearing, a doctor’s testimony that the appellant had generally made threats and engaged in other dangerous behavior in the past, absent other details, was too speculative as to future dangerousness to justify commitment. In addition, a doctor’s testimony that he feared the appellant would stop taking his medications upon leaving the facility, without evidence that the defendant would actually stop, was too speculative as to whether the defendant was dangerous. State v. D.S.
Miranda – Compelling Circumstances
Under State v. Roble-Baker’s multi-factor test, evidence was insufficient to show that the defendant was in compelling circumstances and required Miranda warnings when:
- The one-on-one encounter with the officer took place in the defendant’s trailer and at an apartment complex. (“Location” factor).
- The defendant does not assert that the length of the encounter was excessive. (“Duration” factor).
- The defendant was asked to accompany the officer and show him locations that might be crime scenes, without any additional pressure or signs that the defendant had to go with the officer. (“Pressure/Coercion” factor).
- The police officer gave no indication that the defendant could not terminate the encounter. (“Termination” factor).
- The defendant’s lack of proficiency in English did not impair his ability to adequately communicate with police. State v. Nunez
DV Hearsay Exception – A Kid Is Not a “Cohabiting Person”.
A physical dispute between a minor son and his mother does not qualify for the domestic violence hearsay exception. The son and mother are not “persons cohabiting with each other” under ORS 135.230(4)(d) because that provision applies only to people who are living together in a relationship akin to spouses. They are also not “adult persons related by blood or marriage” under ORS 135.230(4)(c) because a minor isn’t an adult. State ex rel Juvenile Dept. of Washington Cnty. v. C.M.C.
Child Support – Income-Withholding and Federal Assistance
When contesting an income-withholding order issued because of child support obligations, a person must present evidence that one receives cash payments from a federal assistance program (e.g. SSI) to be entitled to the rebuttable presumption, codified in ORS 25.245, that one cannot pay child support. Gellalty v. Gellalty
These reviews were written by Alex St. Pierre, Lisa Ma, James Aaron, Mark Bierdz, Amanda Alvarez and Jon McCoy.