This document provides a summary of recent legal updates and legislative changes presented at the Financial Crimes And Digital Evidence Conference on September 29, 2011. It summarizes several recent Oregon court cases related to issues like probation revocation, theft charges, child pornography possession, and interrogation rights. It also outlines new legislation around furnishing/luring minors, failure to report child pornography, and fixes to previous child pornography laws.

1. Financial Crimes And
Digital Evidence
Conference
Legislative & Legal Update
Sr. Asst. Atty. General Michael Slauson
Oregon Department of Justice
September 29, 2011

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probation was revoked
Holding:
Cannot revoke solely on failure to pay…

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. Legal Update
State v. Ritchie
349 Or 572 (2011)
State v. Barger
349 Or 553 (2011)
Evidence that a defendant viewed child pornography
on his computer is not sufficient to show he
“controlled” images
Court did not address whether a defendant possesses
images when they are automatically stored in
temporary Internet files
Legislative Fix (SB 803)

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 call
Holding:
No constitutional violation

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 policy
Holding:
DA lacked policy; aggregation invalid

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. 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 police
Holding:
A confession to FedEx inadmissible under ORS 136.425(1);
confession to police was valid

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
foundation
Holding:
Lidar is scientific evidence, but is “clear case”

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
murder
Holding:
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. 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 activity
Holding:
Conviction overturned: The legislature intended “to
promote” to apply only to transfers intended to promote
future or ongoing unlawful activity

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 check
Holding:
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. 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 defraud
Holding:
Jury could only speculate as to what defendant intended to
do with ID

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 defraud
Holding:
Evidence that defendant selected only those items after
rummaging through the victim’s purse, shows his intent

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 merge
Holding:
Convictions do not merge; each case represents separate
victim

16. Legislative Update
Furnishing/Luring
HB 3323 (2011)
Furnishing
Repeals ORS 167.054
Luring
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. Legislative Update
Failure 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. 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 stored
New elements
Knowingly accesses or views – Encouraging I, UPCP I
and II
Knowingly accesses with the intent to view –
Encouraging II and III

19. Questions???