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Oregon Appellate Court, April 8, 2020

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by: Rankin Johnson • April 10, 2020 • no comments


Summarized by Rankin Johnson, OCDLA

SENTENCING - Firearm minimum

Trial court did not err in imposing firearm minimum on non-primary offense. Affirmed.

The court explained that it rejected defendant's argument because defendant misstated the court's decisions. The court also held that defendant was not entitled to a mistrial when, during closing, the prosecutor argued that the presumption of innocence no longer applied.

State v. Pouncey 303 Or App 365 (April 8, 2020) (Ortega) (Washington County, Erwin)

JURY INSTRUCTIONS - Instructions supporting defense theory

Trial court did not err in declining to give impossibility instruction, because the facts did not support it. Affirmed.

The court also held that, in the case of Failure to Perform the Duties of a Driver, restitution is not reduced by comparative fault.

State v. Whiteside 303 Or App 427 (April 8, 2020) (Powers) (Yamhill County, Stone)

EVIDENCE - Hearsay and unavailability

State's repeated efforts to contact the victim were sufficient to establish her unavailability, such that her out-of-court statements were admissible as excited utterances. Affirmed.

State v. Belden 303 Or App 438 (April 8, 2020) (Mooney) (Multnomah County, Bushong)

RIGHT TO COUNSEL - Inquiry following defendant's complaint

Trial court erred by failing to investigate defendant's complaints about appointed counsel. Reversed and remanded.

The court explained that, on remand, the court should inquire into defendant's complaints and order a new trial if new counsel would have been warranted.

State v. Omar 303 Or App 448 (April 8, 2020) (Mooney) (Multnomah County, Hodson)


In assault trial, victim's statement that defendant "had done that in the past" was not clear or harmful enough to require mistrial. Conviction affirmed.

Because the prison term and PPS combined exceeded the statutory maximum, the Court of Appeals reversed and remanded for resentencing.

State v. Harris 303 Or App 464 (April 8, 2020) (Kamins) (Washington County, Fun)

SEARCH AND SEIZURE - Confidential informants

Informant's information was not corroborated with nonpublic or incriminating information, and therefore search warrant affidavit lacked probable cause. Reversed and remanded.

The only corroboration was in the description of the house and the defendant's association with identified people; neither of which were incriminating or showed that the informant had inside information. The warrant affidavit had other flaws, including staleness.

State v. Marmon 303 Or App 469 (April 8, 2020) (Kamins) (Linn County, Murphy)

SENTENCING - Departure factors

Sentencing court erred by treating the victim being forced to testify as an upward departure factor. Reversed and remanded.

State v. Rauch 303 Or App 483 (April 8, 2020) (Per curiam) (Marion County, Prall)