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Oregon Appellate Court, April 1, 2020

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by: Rankin Johnson • April 2, 2020 • no comments


Summarized by Rankin Johnson, OCDLA

JURY INSTRUCTIONS - Confusion of the jury

In assault trial court did not err in declining to give jury instructions defining "substantial pain" and "impairment of physical condition." Affirmed.

The Court of Appeals explained that the instructions, while correct in the abstract, could have been confusing and were not necessary in light of other instructions.

State v. Shoemaker 303 Or App 230 (April 1, 2020) (Armstrong) (Deschutes County, Flint)


Trial court did not abuse its discretion in denying request to withdraw jury-trial waiver. Affirmed.

Defendant sought to withdraw her the waiver on the day of trial, when no jurors were available. Defendant did not give a reason, and in ruling the court observed that defendant validly waived jury the day before trial.

State v. Hayter 303 Or App 235 (April 1, 2020) (Armstrong) (Washington County, Wipper)

TRIAL PROCEDURE - Self-defense

Trial court did not err by excluding evidence of prior incident in support of defendant's self-defense argument. Affirmed.

Defendant was accused of menacing and unlawful use of a weapon after he brandished a firearm during a demonstration which he was filming. He sought to offer evidence that his arm was broken a year before by someone he was filming, to show why he believed he was in danger. But, because self-defense must be based on an objectively reasonable belief, the defendant's personal experience is not relevant.

State v. Strickland 303 Or App 240 (April 1, 2020) (Armstrong) (Multnomah County, Ryan)

SEARCH AND SEIZURE - Probable cause

Coming to a stop with the front tires on the stop line is an offense justifying a traffic stop. Affirmed.

State v. Posey 303 Or App 246 (April 1, 2020) (DeVore) (Coos County, Stone)

POST-CONVICTION RELIEF - Reasonable tactical choices

Trial counsel was not ineffective in agreeing to a perpetuation deposition, and use of the deposition at trial, in exchange for a continuance. Affirmed.

The Court of Appeals also held that any error in failing to show how inmate informants could have shared information was harmless.

Davis v. Kelly 303 Or App 253 (April 1, 2020) (Lagesen) (Marion County, Cowley)

SEARCH AND SEIZURE - Scope of traffic stop

Police officer had no basis to inquire about drugs during traffic stop. Reversed and remanded.

State v. McBride 303 Or App 292 (April 1, 2020) (Tookey) (Multnomah County, Silver)


A single incident of choking the victim in July, when the parties had repeated contact afterward, did not establish that respondent was a continuing threat to petitioner warranting FAPA order. Reversed and remanded.

Although the parties were in the process of a contentious separation, including disputes about child visitation, there was no further violence or threatened violence. The record contained no details about the choking incident.

I.T. v. Solis 303 Or App 297 (April 1, 2020) (Tookey) (Umatilla County, Temple)

EVIDENCE - Other-bad-acts

Evidence of prior nighttime burglary committed using pry bar was admissible at trial of other nighttime burglaries committed with pry bars, to prove identity. Affirmed.

In addition to similar methods, defendant wore similar clothes for the different burglaries, all of which were committed against businesses.

State v. Brown 303 Or App 166 (April 1, 2020) (Shorr) (Clackamas County, Jones)

HUNTING - Definition of 'hunt'

Shooting at a decoy game animal, believing it to be a real animal, is 'hunting,' i.e., an 'attempt to take' an animal, for purposes of the hunting laws. Affirmed.

State v. Stockert 303 Or App 314 (April 1, 2020) (James) (Tillamoom County, Travino)

SEARCH AND SEIZURE - Probable cause

Multiple phone calls with known drug users, short stops, and meetings, while at work, provided probable cause to search defendant's work space. Affirmed.

State v. Miser 303 Or App 347 (April 1, 2020) (XXX) (Marion County, Broyles)

TRIAL PROCEDURE - Jury verdict

When juror was released from service midway through deliberations, trial court erred by failing to direct new jury, with alternate, to begin deliberations anew. Reversed and remanded.

State v. Ovalle 303 Or App 356 (April 1, 2020) (Per curiam) (Washington County, Erwin)

POST-CONVICTION RELIEF - Prevailing party fee

Prevailing party fees are not available in post-conviction relief. Affirmed.

Lujan v. Bowser 303 Or App 359 (April 1, 2020) (Per curiam) (Umatilla County, Pratt)