[DV_listserv] Separate Criminal Episode case law

[Domestic Violence issues]

Prosecutors: I would encourage you to read this opinion. Both the majority and dissenting opinions provide helpful guidelines about whether conduct (according to the current Court of Appeals, anyway) is "continuous and uninterrupted" for purposes of arguing "separate criminal episodes".

State v. Witherspoon
Date Filed: 06/06/2012
Case #: A143178
Armstrong, P.J. for the Court; Haselton, C.J.; and Edmonds, S.J.
http://www.publications.ojd.state.or.us/Publications/A143178.pdf

Criminal Procedure: Two criminal counts which arose from continuous,
uninterrupted conduct that were joined in time, place, and
circumstances are not separate criminal episodes for the purpose of
calculating defendant's criminal history score.

Defendant appealed his criminal convictions.

Facts:

One evening, Defendant pulled his wife's (M) hair, which aggravated a bulging disc in her
neck; attempted to force M to stab the Defendant; prevented M from
calling the police; threw M against a book shelf; and smashed C's (M's
son) face into a ladder. The State charged, inter alia, and convicted
Defendant of misdemeanor fourth-degree assault, menacing, and
fourth-degree assault. The State then argued, and the Trial Court
agreed, that there was a break in time between the knife incident and
when Defendant threw M into the bookshelf and, therefore, Defendant's
criminal history score on the latter incident should be "D" rather
than "I" pursuant to OAR 213-004-0008. Defendant appealed and the
Appellate Court held that there was no evidence to support the trial
court's conclusion that the series of events was interrupted, which
would allow a calculation of Defendant's criminal history score as "D"
instead of "I." Remanded for resentencing; otherwise affirmed.

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