Legal Updates 2011

Sr. Asst. Atty. General Michael SlausonSr. Asst. Atty. General Michael Slauson

Oregon Department of JusticeOregon Department of Justice

September 29, 2011September 29, 2011

Financial Crimes And Financial Crimes And

Digital Evidence Digital Evidence

ConferenceConference

Legislative & Legal UpdateLegislative & Legal Update

Legal UpdateLegal Update

Facts:Facts:�� Defendant embezzled $136,000 from her employerDefendant embezzled $136,000 from her employer

�� Defendant pleaded guilty and was sentenced to 5 years…?Defendant pleaded guilty and was sentenced to 5 years…?

�� Defendant ordered to pay restitutionDefendant ordered to pay restitution

�� Defendant made 6 late payments ($50 each) and her Defendant made 6 late payments ($50 each) and her probation was revokedprobation was revoked

Holding:Holding:�� Cannot revoke solely on failure to pay…Cannot revoke solely on failure to pay…

State v. State v. KacinKacin237 Or App 66 (2010)237 Or App 66 (2010)


State v. ColeState v. Cole238 Or App 573 (2010)238 Or App 573 (2010)

Holding:Holding:

�� State not required to prove that defendant knew the State not required to prove that defendant knew the

value of the items he stolevalue of the items he stole


�� Evidence that a defendant viewed child pornography Evidence that a defendant viewed child pornography

on his computer is not sufficient to show he on his computer is not sufficient to show he

“controlled” images“controlled” images

�� Court did not address whether a defendant possesses Court did not address whether a defendant possesses

images when they are automatically stored in images when they are automatically stored in

temporary Internet filestemporary Internet files

�� Legislative Fix (SB 803)Legislative Fix (SB 803)

State v. RitchieState v. Ritchie349 Or 572349 Or 572 (2011)(2011)

State v. BargerState v. Barger349 Or 553349 Or 553 (2011)(2011)


Facts:Facts:�� Detectives advised defendant of sex abuse investigation Detectives advised defendant of sex abuse investigation

involving stepdaughterinvolving stepdaughter

�� Defendant retained counsel, who then sent a letter to Defendant retained counsel, who then sent a letter to

detectives invoking right to silence and counseldetectives invoking right to silence and counsel

�� Months later, detectives have victim make preMonths later, detectives have victim make pre--text calltext call

Holding:Holding:

�� No constitutional violationNo constitutional violation

State v. DavisState v. Davis350 Or 440 (2011)350 Or 440 (2011)


Facts:Facts:�� Defendant was accused of embezzling hundreds of Defendant was accused of embezzling hundreds of

thousands of dollars from her employer in numerous thousands of dollars from her employer in numerous

individual theft transactions over a 16individual theft transactions over a 16––month periodmonth period

�� Prosecutor aggravated individual thefts by each monthProsecutor aggravated individual thefts by each month

�� Defendant challenged aggregation on ground DA lacked Defendant challenged aggregation on ground DA lacked

systematic policysystematic policy

Holding:Holding:�� DA lacked policy; aggregation invalidDA lacked policy; aggregation invalid

State v. State v. SavastanoSavastano243 Or App 584 (2011)243 Or App 584 (2011)

State v. State v. PettengillPettengill243 Or App 591 (2011)243 Or App 591 (2011)

Facts:Facts:

�� Defendant embezzled money from her employer over the course Defendant embezzled money from her employer over the course

of 3 yearsof 3 years

�� Defendant was charged with 3 counts of firstDefendant was charged with 3 counts of first--degree theft based degree theft based

on aggregated theft values under ORS 164.115(5).on aggregated theft values under ORS 164.115(5).

�� Defendant moved to prohibit aggregation on ground that DA did Defendant moved to prohibit aggregation on ground that DA did

not have systematic policy regarding aggregation decisions.not have systematic policy regarding aggregation decisions.

Holding:Holding:

�� DA policy was sufficient; defendant failed to meet burden to DA policy was sufficient; defendant failed to meet burden to

show policy not systematically appliedshow policy not systematically applied



Facts:Facts:�� Defendant obtained over $10,000 worth of goods from Defendant obtained over $10,000 worth of goods from

packages he stole in his courier job for FedExpackages he stole in his courier job for FedEx

�� FedEx investigators assured him they would not report his FedEx investigators assured him they would not report his

crimes to police if he confessed and gave a written crimes to police if he confessed and gave a written

statementstatement

�� Defendant later gave a Defendant later gave a MirandizedMirandized confession to policeconfession to police

Holding:Holding:

�� A confession to FedEx inadmissible under ORS 136.425(1); A confession to FedEx inadmissible under ORS 136.425(1);

confession to police was validconfession to police was valid

State v. PowellState v. Powell242 Or App 645 (2011)242 Or App 645 (2011)


Facts:Facts:�� Defendant charged with unlawful delivery of cocaine Defendant charged with unlawful delivery of cocaine

within 1000 ft of a schoolwithin 1000 ft of a school

�� Officer used Officer used lidarlidar device to measure distance from sale to device to measure distance from sale to

schoolschool

�� Defendant claimed Defendant claimed lidarlidar measurements constituted measurements constituted

scientific evidence and that the state failed to lay proper scientific evidence and that the state failed to lay proper

foundationfoundation

Holding:Holding:

�� LidarLidar is scientific evidence, but is “clear case”is scientific evidence, but is “clear case”

State v. BranchState v. Branch243 Or App 309 (2011)243 Or App 309 (2011)


State v. State v. KlienKlien243 Or App 1 (2011)243 Or App 1 (2011)

Facts:Facts:�� Police used body wire in coldPolice used body wire in cold--case murder between case murder between

defendant’s girlfriend and the codefendant’s girlfriend and the co--defendantdefendant

�� Defendant challenged body wire evidence, because order Defendant challenged body wire evidence, because order

was signed by judge who was in DA’s office at time of was signed by judge who was in DA’s office at time of

murdermurder

Holding:Holding:

�� Defendant had no standing to challenge order because Defendant had no standing to challenge order because

he was not “an aggrieved person” he was not “an aggrieved person” –– he was not targeted he was not targeted

by the interception and had no privacy interest in the by the interception and had no privacy interest in the

location of the interceptionlocation of the interception


State v. State v. KholstininKholstinin240 Or 696 (2011)240 Or 696 (2011)

Facts:Facts:�� Defendant used fraudulent credit cards to obtain cash Defendant used fraudulent credit cards to obtain cash

from ATM machinesfrom ATM machines

�� Defendant attempted to wire the proceeds to Russia Defendant attempted to wire the proceeds to Russia

�� Defendant charged with money laundering for Defendant charged with money laundering for

attempting to transfer funds for the purpose of attempting to transfer funds for the purpose of

promoting illegal activitypromoting illegal activity

Holding:Holding:

�� Conviction overturned: The legislature intended “to Conviction overturned: The legislature intended “to

promote” to apply only to transfers intended to promote promote” to apply only to transfers intended to promote

future or ongoing unlawful activityfuture or ongoing unlawful activity


Facts:Facts:�� Defendant wrote a check to the manager of a motel and Defendant wrote a check to the manager of a motel and

then told her that he didn’t have any money in the bankthen told her that he didn’t have any money in the bank

�� Defendant was prosecuted for negotiating a bad checkDefendant was prosecuted for negotiating a bad check

Holding:Holding:�� State not required to prove that the check was refused for State not required to prove that the check was refused for

lack of funds lack of funds –– defendant’s statement he didn’t have money defendant’s statement he didn’t have money

was sufficientwas sufficient

State v. KirklandState v. Kirkland241 Or App 40 (2011)241 Or App 40 (2011)


Facts:Facts:�� Defendant was caught hiding in the bushes after he tried to Defendant was caught hiding in the bushes after he tried to

break into a credit unionbreak into a credit union

�� Defendant had a DMV ID card with someone else’s name Defendant had a DMV ID card with someone else’s name

and picture that looked similar to defendantand picture that looked similar to defendant

�� Defendant challenged his ID theft conviction on the Defendant challenged his ID theft conviction on the

ground there was no evidence he had an intent to deceive ground there was no evidence he had an intent to deceive

or defraudor defraud

Holding:Holding:

�� Jury could only speculate as to what defendant intended to Jury could only speculate as to what defendant intended to

do with IDdo with ID

State v. MartinState v. Martin243 Or App 528 (2011)243 Or App 528 (2011)


Facts:Facts:�� Defendant was caught with stolen ID card and credit card Defendant was caught with stolen ID card and credit card

and admitted to an officer that he threw away the wallet and admitted to an officer that he threw away the wallet

that he had stolenthat he had stolen

�� Defendant challenged his ID theft conviction on the Defendant challenged his ID theft conviction on the

ground there was no evidence he had an intent to deceive ground there was no evidence he had an intent to deceive

or defraudor defraud

Holding:Holding:�� Evidence that defendant selected only those items after Evidence that defendant selected only those items after

rummaging through the victim’s purse, shows his intentrummaging through the victim’s purse, shows his intent

State v. State v. McAteeMcAteeA139246 (2011)A139246 (2011)


Facts:Facts:�� Defendant wrote bad checks to restaurants and other Defendant wrote bad checks to restaurants and other

businessesbusinesses

�� Defendant was convicted of 3 counts of ID theft related to Defendant was convicted of 3 counts of ID theft related to

possession of the personal info of 3 peoplepossession of the personal info of 3 people

�� Defendant argued that the convictions should mergeDefendant argued that the convictions should merge

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

victimvictim

State v. MullenState v. MullenA139246 (2011)A139246 (2011)

Legislative UpdateLegislative Update

FurnishingFurnishing�� Repeals ORS 167.054Repeals ORS 167.054

LuringLuring�� Amends ORS 167.057 to limit the crime to engaging in Amends ORS 167.057 to limit the crime to engaging in

the prohibited conduct for the purpose of inducing the the prohibited conduct for the purpose of inducing the

minor to engage in sexual conductminor to engage in sexual conduct

Furnishing/LuringFurnishing/LuringHB 3323 (2011)HB 3323 (2011)


Who must report?Who must report?

�� Computer technician or processor of photographic Computer technician or processor of photographic

images who reasonably believes he has observed an images who reasonably believes he has observed an

image of child pornographyimage of child pornography

What must they report?What must they report?

�� The name and address of the owner, possessor, or The name and address of the owner, possessor, or

requestor of the property where the images were foundrequestor of the property where the images were found

Who must they report to?Who must they report to?

�� The The CyberTiplineCyberTipline at NCMEC, DHS, or a LEA at NCMEC, DHS, or a LEA

Failure to Report Child PornographyFailure to Report Child PornographyHB 2463 (2011)HB 2463 (2011)

Class A MisdemeanorClass A Misdemeanor


New definition of “Visual Recording”New definition of “Visual Recording”

�� “Visual recording” includes, but is not limited to, “Visual recording” includes, but is not limited to,

photographs, films, videotapes and computer and other photographs, films, videotapes and computer and other

digital pictures, regardless of the manner in which the digital pictures, regardless of the manner in which the

recording is storedrecording is stored

New elementsNew elements

�� Knowingly accesses or views Knowingly accesses or views –– Encouraging I, UPCP I Encouraging I, UPCP I

and IIand II

�� Knowingly accesses with the intent to view Knowingly accesses with the intent to view ––

Encouraging II and IIIEncouraging II and III

Ritchie/Barger FixRitchie/Barger FixSB 803 (2011)SB 803 (2011)

Questions???Questions???

Technology

Legal Updates 2011