- Court: Oregon Court of Appeals
- Area(s) of Law: Criminal Law
- Date Filed: 02-06-2013
- Case #: A142984
- Judge(s)/Court Below: Wollheim, J. for the Court; Schuman, P.J.; and Nakamoto, J.
- Full Text Opinion
Defendant appealed his conviction of 53 offenses, raising 15 assignments of error because he believed the private property signs and gate on his property constituted a clear intent to exclude visitors. The Court rejected all of Defendant’s assignments, except one assignment relating to merger of guilty verdicts, which the State conceded to. With regard to Defendant’s suppression of evidence error, the Court upheld the trial court, finding that Defendant’s driveway signs identifying the property as private were insufficient in manifesting a clear intent to exclude casual visitors. The Court also upheld the trial court in ruling that ORS 475.900 enhancement factors are not limited to possession of the same controlled substance, but rather can be aggregated with each substance in the Defendant’s possession. In addition, the factors leading to charges under CDO classifications are not “obvious” to the court as being lesser included offenses which should be merged. The Court also rejected Defendant’s contention that the trial court erred in instructing the jury with regard to sentencing enhancement factors. The Court held that, under OAR 213-008-0002(1)(b)(D), the Court may allow the jury to consider evidence of Defendant’s prior criminal conduct in determining the “persistent involvement” factor of enhanced sentencing. Lastly, the Court rejected Defendant's mistrial arguments, finding that the prosecutor’s comment did not require a mistrial. Remanded for resentencing; otherwise affirmed.