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State v. Rubio

Summarized by: 

Date Filed: 02-15-2012
Case #: A142063
Brewer, C.J., for the Court; Ortega, P.J.; Sercombe, J.
Full Text Opinion: http://courts.oregon.gov/sites/Publications/A142063.pdf

Sentencing: When a sentencing court commits an error the Court of Appeals must remand the entire case for resentencing if there are options which the sentencing court may adopt. Where defendant's theory does not focus on an issue that matter is collateral, and while relevant, its probative value may be substantially outweighed by risk of misleading the jury.

The Court of Appeals affirmed defendants' convictions in consolidated appeals, but remanded for entry of corrected judgments. Defendants were convicted of robbery in the first degree while armed with a deadly weapon. Defendants borrowed a .22 pistol from a friend, but the gun did not discharge during the robbery. Defendants returned the gun to the friend who agreed to dispose of the gun. During the police investigation the friend agreed to retrieve the gun, but refused to tell the police where he had hidden it. The Court addressed two assignments of error. The first was whether the trial court properly precluded defense cross-examination regarding where the friend had hidden the gun. The Court agreed with the trial court that the matter of where the gun was hidden was collateral and had low probative value, because there was a substantial risk for jury confusion the court properly limited the cross-examination under OEC 403. The Court agreed with the defendants that the trial court improperly sentenced them by including a provision that they have no contact with the victim. If a sentencing court committed an error that requires resentencing the Court of Appeals is required to remand the entire case for resentencing if the trial court has sentencing options it could permissibly adopt. However, because the trial court lacked the authority to impose the no-contact provision, there were no option the trial court could permissibly adopt. Therefore, rather than reversing the sentence and remanding the entire case for resentencing, the Court remanded with instructions to delete the erroneous terms.