A Book from the Library of Defense

Oregon Appellate Court, August 14, 2019

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by: Rankin Johnson IV • August 23, 2019 • no comments

Summarized by Rankin Johnson, OCDLA

SEARCH AND SEIZURE - Duration of traffic stop

Questioning about drugs took place during an unavoidable lull. Affirmed.

The questioning occurred while the officer waited for the dispatcher to complete other tasks and run a records check. The officer chose not to return to his car and use its computer upon learning that the dispatcher was not immediately available.

State v. McBride 299 Or App 11 (August 14, 2019) (Tookey) (Multnomah County, Silver)


Trial court erred in failing to merge sexual-abuse convictions. Reversed and remanded.

During the same criminal episode, defendant subjected the victim to sexual intercourse and digitally penetrated her anus. The Court of Appeals rejected the state's argument that different 'methods' of committing sexual abuse do not merge.

State v. Dearmitt 299 Or App 22 (August 14, 2019) (DeHoog) (Clackamas County, Karabeika)

EVIDENCE - Other-bad-acts

Prior uncharged acts of domestic violence were not admissible to show motive. Reversed and remanded.

The court discussed the difference between motive and propensity evidence. It held that, although defendant had engaged in similar acts on multiple occasions, that did not prove that he had the same motive each time. It also held that repeated assaults against the same victim did not demonstrate a motive that could properly be proved with other-bad-acts.

Hadlock, dissenting, believed that defendant's pattern of assaulting the victim and attempting to eject her from their shared space was a 'motive' that could be proved with other-bad-act evidence.

State v. Morrow 299 Or App 31 (August 14, 2019) (Aoyagi, Hadlock dissenting) (Deschutes County, Miller)

SEARCH AND SEIZURE- Consent to enter and remain in residence

Police did not have consent to enter a guest's bedroom. Reversed and remanded.

Police came to a home in search of defendant. Homeowner's daughter invited police in, and homeowner, on request of police, entered defendant's bedroom and then invited police into it. The court held that the state did not prove that homeowner consented to the entry.

Nelson v. DMV 299 Or App 96 (August 14, 2019) (Aoyagi) (Deschutes County, Miller)