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| November 23, 2005
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| On November 22, 2005, the Supreme Court:
1. Allowed petitions for review in*:
State v. Hankins, S52438, A115703. Defendant Jerry Dale Hankins seeks review of a Court of Appeals decision holding that his motion for judgment of acquittal at trial was insufficient to preserve a challenge to the sufficiency of his criminal indictment.
Under Oregon law, delivery of less than five grams of marijuana for no consideration is generally only a violation, ORS 475.922(2)(b). However, if a defendant who delivers such an amount is 18 years of age or older, and the marijuana's recipient is a person who is under 18 and at least three years younger than the defendant, then the defendant can be charged with a Class A felony, ORS 475.995(5).
Defendant was indicted, in part, on four counts of delivering a controlled substance to a minor, ORS 475.995(1), after furnishing marijuana to the same fifteen-year-old youth on several different occasions. The captions in defendant's indictment listed the marijuana-related charges against him as Class A felonies. Although those captions alluded to the requisite age difference between defendant and the youth, the charges themselves did not recite the fact of those parties' respective ages and their age differences as essential elements of the alleged crime. Citing that fact at trial, defendant moved for a judgment of acquittal, arguing that his indictment had not properly pleaded the charges against him. The trial court denied defendant's motion, holding that defendant's challenge to his indictment should have taken the form of a demurrer, rather than a motion to acquit.
On appeal following defendant's conviction, the Court of Appeals affirmed the trial court's judgment. The Court of Appeals reasoned that an acquittal motion challenging the sufficiency of an indictment should be treated as a premature motion in arrest of judgment. The court held that when such a motion is made prior to conviction and a trial court refuses to consider it, the motion must be renewed after conviction takes place in order to be preserved. Ultimately, the Court of Appeals concluded that defendant's failure to renew his motion following his conviction had not preserved the issue he sought to raise on appeal. The Court of Appeals decision can be read at 194 Or App 140 (2004).
On review, the issues are whether the Class A felony of providing a controlled substance to a minor requires the age of a defendant and the age difference between the parties to be alleged in the text of the indictment when the transaction at issue involves furnishing marijuana to a minor for no consideration and whether defendant properly preserved the claimed error in the trial court.
State v. Illig-Renn, S52633, A114387. Plaintiff State of Oregon seeks review of the Court of Appeals decision holding that ORS 162.247(1)(b) is constitutionally overbroad and violates Article I, sections 8 and 26, of the Oregon Constitution.
Rose Mary Illig-Renn (defendant below), was charged by district attorney's information with interfering with a peace officer following an incident in which she climbed into the bed of a pickup truck that police officers were impounding and refused to comply with an officer's order to leave. ORS 162.247 (1)(b) provides that a person commits the crime of interfering with a peace officer if the person knowingly refuses to obey a peace officer's "lawful order." Defendant subsequently demurred to the information and the trial court sustained the demurrer, dismissing the state's charges. The trial court held that use of the phrase "lawful order" in ORS 162.247(1)(b) potentially allowed the statute to hamper otherwise constitutionally-protected activities, making the statute unconstitutionally overbroad on its face.
On appeal, the Court of Appeals initially reversed and remanded that judgment. However, after the Supreme Court interpreted a similarly-worded statute as facially overbroad in State v.
Ausmus, 336 Or 493 (2004), the Court of Appeals reconsidered its previous decision and affirmed the trial court's judgment. The Court of Appeals decision on reconsideration can be read at 199 Or App 124 (2005).
On review, the issue is whether use of the phrase "lawful order" in ORS 162.247(1)(b) renders the statute facially overbroad for purposes of the Oregon Constitution.
State v. Henderson, S52749, A119000. Plaintiff State of Oregon seeks review of a Court of Appeals decision holding that a warrant issued to search for stolen property at a particular residence was not supported by probable cause.
According to a named informant, Lisa Ann Henderson (defendant below) had recently acquired two stolen diamond rings in payment for having supplied the informant with illegal drugs. In the course of procuring a warrant to search defendant's residence for the stolen property, the officer requesting the warrant submitted an affidavit, based on the officer's training and experience, that contained statements regarding the places a suspect might hide stolen property. The officer noted that persons often convert stolen property to their own use and often keep the stolen property on their persons, in their vehicles, at their residences, in trailers or outbuildings near the residences, in the ground near the residences, and on the persons or in the vehicles of others present at the time of warrant execution, including elderly persons or children.
After serving the warrant and searching defendant's residence and surrounding outbuildings, police officers found the stolen rings, as well as a supply of methamphetamine, scales, packaging material, and drug paraphernalia. Defendant unsuccessfully attempted to suppress that evidence, and was subsequently convicted following a stipulated facts trial.
On appeal, the Court of Appeals reversed defendant’s conviction and remanded. The Court of Appeals reasoned that when a search warrant's supporting affidavit purports to establish probable cause by listing a myriad of diverse locations, it effectively lowers the probability that the item will be found in any particular place. According to the court, the resulting diffusion of probability requires an affidavit to contain some factual showing in addition to statements based on an officer's training and experience in order for the affidavit to establish probable cause. The Court of Appeals decision can be read at 200 Or App 225 (2005).
On review, this case presents two issues: (1) Whether the circumstances of this case in fact provided probable cause to search defendant's residence for the stolen rings; and (2) whether the breadth of the officer's statements regarding the possible locations of the stolen rings actually decreased the likelihood that the stolen property would be found on defendant's premises to the extent that it rendered the authorizing warrant unlawful.
2. Denied petitions for review in:
State v. Bigelow, S52253, A119915
State v. Arredondo, S52413, A123213
State v. King, S52576, A118479
Files v. Belleque, S52587, A125589
State v. Steffler, S52619, A115516
Thomas v. Hall, S52648, A119430
Oregon Insurance Guaranty Assn. v. Hall, S52650, A122994
State ex rel Juv. Dept. of Multnomah County v. Mengis, S52684, A126866
State ex rel Juv. Dept. of Multnomah County v. Mengis, S52685, A128504
Hayes Oyster Co. v. Dulcich, S52706, A119988
Branscomb and Branscomb, S52743, A122931
Marshall v. Lenox, S52744, A122900
State v. Gauer, S52759, A129518
State v. Brown, S52774, A121813
State ex rel Dept. of Human Services v. Bonner, S52789, S52853, A127908
State ex rel Juv. Dept. of Marion County v. Betts, S52792, A126327
Hessel v. Hill, S52809, A127791
Elkins v. Belleque, S52812, A128059
Hughes v. Hall, S52816, A126285
State v. Fry, S52818, A121238
State v. Thomas, S52821, A123756
State v. Reinke, S52824, A116105
Greenfield v. Hill, S52833, A125300
Weavill v. Hill, S52838, A127955
State v. Sawyer, S52843, A126186
Herring v. Lampert, S52851, A122335
State ex rel Dept. of Human Services v. Munden, S52854, A128179
State v. Grow, S52859, A123849
State v. Foulk, S52864, A124147
State ex rel Juv. Dept. of Lane County v. Youngblood, S52866, A126036
3. Denied petitions for writ of mandamus in:
State v. Hardaway, S52847
State v. Voth, S52848
Staten v. Steel, S52867
4. Reinstated the following attorneys to the active practice of law:
Kristen C. Chapin
Stephen Mensing
*These summaries of cases are prepared for the benefit of members of the media to assist them in reporting the court's activities to the public. Parties and practitioners should not rely on the summaries, or the statement of issues to be decided in the summaries, as indicating the questions that the Supreme Court will consider. Regarding the questions that the Supreme Court may consider, see Oregon Rule of Appellate Procedure 9.20. |
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