State v. Diaz-Briceno

Summary

The Oregon Court of Appeals affirmed Miguel Angel Diaz-Briceno’s convictions for second-degree and third-degree sexual abuse but remanded for resentencing. The court rejected claims concerning prosecutorial comments and the absence of a jury concurrence instruction. It held that two special probation conditions—requiring disclosure of sexual-offense history to persons with a “significant relationship” or “close affiliation,” and restricting internet access—were plainly erroneous.

Holdings

1. The prosecutor's challenged comments, viewed in context, did not deprive defendant of a fair trial. The comments either were permissible arguments based on the evidence concerning the victim's credibility or, assuming error, were not so prejudicial as to require reversal.
2. The trial court did not plainly err by failing to give a concurrence instruction because the record did not present multiple factual occurrences that could obviously constitute the charged third-degree sexual-abuse offense.
3. The probation condition requiring defendant to disclose his sexual-offense history to persons with whom he had a "significant relationship" or "close affiliation" was unconstitutionally vague under the Due Process Clause of the United States Constitution.
4. The condition prohibiting defendant from accessing the internet without prior written permission was not reasonably related to the crime of conviction or the needs of the probationer for public protection or reformation, as required by ORS 137.540(2).
5. The court exercised its discretion to correct the plain errors because the conditions lacked a lawful basis, implicated fundamental liberty and due-process interests, and the ends of justice justified relief despite defendant's failure to object.

Questions Presented

1. Whether the prosecutor's closing and rebuttal-argument comments deprived defendant of a fair trial.
2. Whether the trial court plainly erred by failing to give a concurrence instruction for the third-degree sexual-abuse count.
3. Whether the probation condition requiring disclosure of defendant's sexual-offense history to persons with whom he had a significant relationship or close affiliation was unconstitutionally vague under the Due Process Clause.
4. Whether the probation condition prohibiting internet access without prior written permission was reasonably related to the crime of conviction or the needs of the probationer as required by ORS 137.540(2).
5. Whether the court should exercise its discretion to correct the unpreserved errors concerning the probation conditions.

Disposition

reversed_and_remanded