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Oregon Appellate Court, April 7, 2021

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by: Rankin Johnson • April 8, 2021 • no comments

 

Summarized by Rankin Johnson, OCDLA

RIGHT TO JURY TRIAL - Unanimity

Nonunanimous jury verdicts to convict are invalid. Reversed.

The Court of Appeals declined to review as plain error evidence that the arresting officer disbelieved some of defendant's statements, because defense counsel might have failed to object for tactical reasons.

State v. Tat 310 Or App 383 (April 7, 2021) (Ortega) (Multnomah County, Hodson)

SENTENCING - Modification and correction

Trial court erred in correcting sentence without notifying defendant and giving him an opportunity to be heard. Reversed.

The record did not establish what sentence the court had initially intended to impose. The Court of Appeals remanded for the court to determine whether the modification was the proper correction of a clerical error or the improper modification of an executed sentence.

State v. Pryor 310 Or App 403 (April 7, 2021) (DeVore) (Multnomah County, Roberts)

SENTENCING - Merger

Underlying prostitution offenses merged into promoting prostitution. Reversed.

Defendant was charged with multiple counts of promoting and compelling prostitution, each related to a specific prostitute, and one count of promoting prostitution over an eighteen-month period when the other offenses occurred. The court held that, in light of the state's trial theory, the subsidiary counts all merged into the overarching count. In explaining its decision, the court observed that an adult voluntarily engaging in prostitution was not a victim of promoting prostitution.

The court also held that a search warrant, permitting search of digital devices for pictures, contact information, and communication related to prostitution charges was sufficiently particular, and it reversed convictions based on nonunanimous verdicts.

State v. Paye 310 Or App 408 (April 7, 2021) (Lagesen) (Multnomah County, Immergut and Wittmayer)

SEARCH AND SEIZURE - Reasonable suspicion

Frequent visitors at defendant's house, a brief stop at a rest stop, and aluminum foil in his car were not sufficient to expand traffic stop to drug inquiry. Reversed.

State v. Mock 310 Or App 454 (April 7, 2021) (Shorr) (Union County, Powers)

TIME LIMITATIONS - Speedy trial

Fourteen-month delay to bring felony DUII charge to trial was not excessive. Affirmed.

Although defendant complained about the loss of jail booking video, he failed to show that the loss prejudiced him.

The Court of Appeals vacated a fine that was not imposed in open court.

State v. Ralston 310 Or App 470 (April 7, 2021) (James) (Multnomah County, Baldwin)

RIGHT TO JURY TRIAL - Unanimity

Merger of two counts, one supported by a unanimous verdict and one by a nonunanimous verdict, did not invalidate count based on unanimous verdict. Affirmed.

The court reversed the convictions supported by nonunanimous verdicts and remanded for resentencing.

State v. Johns 310 Or App 509 (April 7, 2021) (Mooney) (Lincoln County, Bachart)

RIGHT TO JURY TRIAL - Unanimity

Court's error in instructing jury that verdict need not be unanimous was not harmful. Affirmed.

State v. Gregg 310 Or App 513 (April 7, 2021) (Mooney) (Douglas County, Simmons)

INADEQUATE ASSISTANCE OF COUNSEL - Use of experts

Trial counsel was ineffective in failing to employ expert to counter state's theory that normal gynecological exam was exculpatory. Reversed.

Defendant, an adult man, was charged with multiple rapes of a thirteen-year-old girl. Defense counsel consulted with two possible experts and two other defense attorneys, chose not to retain an expert, and relied on common sense in arguing to a jury.

The Court of Appeals noted that the state had an expert who relied on a single study. The court held that adequate counsel would have been familiar with The literature and used it in cross-examining the state's expert.

McMullin v. Amsberry 310 Or App 542 (April 7, 2021) (Landau) (Umatilla County, Penn)