Legal Updates 2011


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Legal Updates 2011

  1. 1. Financial Crimes And Digital Evidence Conference Legislative & Legal Update Sr. Asst. Atty. General Michael Slauson Oregon Department of Justice September 29, 2011
  2. 2. Legal Update State v. Kacin 237 Or App 66 (2010)Facts: Defendant embezzled $136,000 from her employer Defendant pleaded guilty and was sentenced to 5 years…? Defendant ordered to pay restitution Defendant made 6 late payments ($50 each) and her probation was revokedHolding: Cannot revoke solely on failure to pay…
  3. 3. Legal Update State v. Cole 238 Or App 573 (2010)Holding: State not required to prove that defendant knew the value of the items he stole
  4. 4. Legal Update State v. Ritchie 349 Or 572 (2011) State v. Barger 349 Or 553 (2011)Evidence that a defendant viewed child pornographyon his computer is not sufficient to show he“controlled” imagesCourt did not address whether a defendant possessesimages when they are automatically stored intemporary Internet filesLegislative Fix (SB 803)
  5. 5. Legal Update State v. Davis 350 Or 440 (2011)Facts: Detectives advised defendant of sex abuse investigation involving stepdaughter Defendant retained counsel, who then sent a letter to detectives invoking right to silence and counsel Months later, detectives have victim make pre-text callHolding: No constitutional violation
  6. 6. Legal Update State v. Savastano 243 Or App 584 (2011)Facts: Defendant was accused of embezzling hundreds of thousands of dollars from her employer in numerous individual theft transactions over a 16–month period Prosecutor aggravated individual thefts by each month Defendant challenged aggregation on ground DA lacked systematic policyHolding: DA lacked policy; aggregation invalid
  7. 7. Legal Update State v. Pettengill 243 Or App 591 (2011)Facts: Defendant embezzled money from her employer over the course of 3 years Defendant was charged with 3 counts of first-degree theft based on aggregated theft values under ORS 164.115(5). Defendant moved to prohibit aggregation on ground that DA did not have systematic policy regarding aggregation decisions.Holding: DA policy was sufficient; defendant failed to meet burden to show policy not systematically applied
  8. 8. Legal Update State v. Powell 242 Or App 645 (2011)Facts: Defendant obtained over $10,000 worth of goods from packages he stole in his courier job for FedEx FedEx investigators assured him they would not report his crimes to police if he confessed and gave a written statement Defendant later gave a Mirandized confession to policeHolding: A confession to FedEx inadmissible under ORS 136.425(1); confession to police was valid
  9. 9. Legal Update State v. Branch 243 Or App 309 (2011)Facts: Defendant charged with unlawful delivery of cocaine within 1000 ft of a school Officer used lidar device to measure distance from sale to school Defendant claimed lidar measurements constituted scientific evidence and that the state failed to lay proper foundationHolding: Lidar is scientific evidence, but is “clear case”
  10. 10. Legal Update State v. Klien 243 Or App 1 (2011)Facts: Police used body wire in cold-case murder between defendant’s girlfriend and the co-defendant Defendant challenged body wire evidence, because order was signed by judge who was in DA’s office at time of murderHolding: Defendant had no standing to challenge order because he was not “an aggrieved person” – he was not targeted by the interception and had no privacy interest in the location of the interception
  11. 11. Legal Update State v. Kholstinin 240 Or 696 (2011)Facts: Defendant used fraudulent credit cards to obtain cash from ATM machines Defendant attempted to wire the proceeds to Russia Defendant charged with money laundering for attempting to transfer funds for the purpose of promoting illegal activityHolding: Conviction overturned: The legislature intended “to promote” to apply only to transfers intended to promote future or ongoing unlawful activity
  12. 12. Legal Update State v. Kirkland 241 Or App 40 (2011)Facts: Defendant wrote a check to the manager of a motel and then told her that he didn’t have any money in the bank Defendant was prosecuted for negotiating a bad checkHolding: State not required to prove that the check was refused for lack of funds – defendant’s statement he didn’t have money was sufficient
  13. 13. Legal Update State v. Martin 243 Or App 528 (2011)Facts: Defendant was caught hiding in the bushes after he tried to break into a credit union Defendant had a DMV ID card with someone else’s name and picture that looked similar to defendant Defendant challenged his ID theft conviction on the ground there was no evidence he had an intent to deceive or defraudHolding: Jury could only speculate as to what defendant intended to do with ID
  14. 14. Legal Update State v. McAtee A139246 (2011)Facts: Defendant was caught with stolen ID card and credit card and admitted to an officer that he threw away the wallet that he had stolen Defendant challenged his ID theft conviction on the ground there was no evidence he had an intent to deceive or defraudHolding: Evidence that defendant selected only those items after rummaging through the victim’s purse, shows his intent
  15. 15. Legal Update State v. Mullen A139246 (2011)Facts: Defendant wrote bad checks to restaurants and other businesses Defendant was convicted of 3 counts of ID theft related to possession of the personal info of 3 people Defendant argued that the convictions should mergeHolding: Convictions do not merge; each case represents separate victim
  16. 16. Legislative Update Furnishing/Luring HB 3323 (2011)Furnishing Repeals ORS 167.054Luring Amends ORS 167.057 to limit the crime to engaging in the prohibited conduct for the purpose of inducing the minor to engage in sexual conduct
  17. 17. Legislative UpdateFailure to Report Child Pornography HB 2463 (2011) Class A Misdemeanor Who must report? Computer technician or processor of photographic images who reasonably believes he has observed an image of child pornography What must they report? The name and address of the owner, possessor, or requestor of the property where the images were found Who must they report to? The CyberTipline at NCMEC, DHS, or a LEA
  18. 18. Legislative Update Ritchie/Barger Fix SB 803 (2011)New definition of “Visual Recording” “Visual recording” includes, but is not limited to, photographs, films, videotapes and computer and other digital pictures, regardless of the manner in which the recording is storedNew elements Knowingly accesses or views – Encouraging I, UPCP I and II Knowingly accesses with the intent to view – Encouraging II and III
  19. 19. Questions???