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Oregon Appellate Court, December 4, 2019

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by: Rankin Johnson IV • December 6, 2019 • no comments


Summarized by Rankin Johnson, OCDLA

EVIDENCE - Relevance and unfair prejudice

Trial court did not err by failing to redact Intoxilyzer report showing defendant's BAC to be .066, notwithstanding evidence that the test established his BAC to be .06. Affirmed.

The court observed that the jury heard, in both evidence and argument, that the BAC was .06. It also held that any error was harmless.

State v. Dodge 301 Or App 1 (December 4, 2019) (Egan) (Multnomah County, McShane)


Respondent's contacts with petitioner, a police chief, which occurred in public and he filmed and in which he made vague complaints about the police and media but made no express threats and engaged in no threatening behavior, did not support issuance of a stalking order. Reversed.

Respondent regularly filmed police officers and posted criticism about police online. He was on probation and a term of his probation limited his contact with the personal residences of public officials. Petitioner was briefed on him when she became chief of police.

D.O. v. Richey 301 Or App 18 (December 4, 2019) (DeVore) (Multnomah County, Nelson)

RESTITUTION - Reasonable and necessary charges

Trial court erred by imposing restitution award for damages to vehicle that was greater than its Blue Book value in the absence of evidence that the repair cost was reasonable. Reversed and remanded.

The court was unimpressed by the state's argument that it should adopt a relaxed standard of proof for restitution hearings.

State v. Aguirre-Rodriguez 301 Or App 42 (December 4, 2019) (Lagesen) (Marion County, Caso)

RESTITUTION - Reasonable and necessary charges

Trial court erred by imposing restitution award for counseling the absence of evidence that the cost was reasonable. Reversed and remanded.

Insurance paid the counseling bills at contract rates, but that was not sufficient to show that the rates were reasonable in the market.

State v. Hilburn 301 Or App 48 (December 4, 2019) (Lagesen) (Marion County, Hart)

EVIDENCE - Vouching and delayed reporting

Detective's testimony that the victim delayed reporting out of fear of the defendant was inadmissible vouching. Reversed and remanded.

State v. Brand 301 Or App 59 (December 4, 2019) (DeHoog) (Multnomah County, Wittmayer)

MERGER - Plain error

Any error in failing to merge promoting prostitution, compelling prostitution, and trafficking in persons, or unlawful use of a vehicle, robbery, and theft, was not plain. Affirmed.

State v. White 301 Or App 74 (December 4, 2019) (DeHoog) (Clackamas County, Jones)

MERGER - Drug offenses

DCS to a minor merged into application of a controlled substance to the body of another person under 18. Reversed and remanded.

State v. Oldham 301 Or App 82 (December 4, 2019) (DeHoog) (Lane County, McAlpin)


Defendant, who had an IQ of 53, believed that his confession would secure the release of his his family, including his infant son, rendering his confession involuntary. Reversed and remanded.

Although police told defendant that they could not make release decisions, they also explained that defendant's family members were being held because they were important witnesses, and they would no longer be important witnesses if police knew what had happened.

Garrett, dissenting, joined by Armstrong, DeVore, Tookey, Powers, and Hadlock, would have held that defendant's confession was voluntary.

State v. Vazquez-Santiago 301 Or App 90 (December 4, 2019) (James, Garrett dissenting) (Washington County, Letourneau)

SEARCH AND SEIZURE - Probable cause

Drifting within his lane and coming within a foot of a parked car at slow speeds did not provide probable cause to stop defendant. Reversed and remanded.

Because the trial court found that defendant failed to maintain a lane, it did not decide whether the officer could stop for careless driving. The Court of Appeals remanded for further findings of fact.

State v. Derby 301 Or App 134 (December 4, 2019) (Aoyagi) (Lane County, Merten)

RESTITUTION - Factual nexus between crime and loss

By breaking the victim's finger at the time he took her cell phone, defendant caused the loss of the cell phone but not an electric toothbrush. Reversed and remanded.

The victim was also arrested at the time of the altercation, and spent nine days in jail. When she returned her cell phone was gone, which was enough of a causal connection to impose restitution. The toothbrush was not involved in the altercation and therefore would not support a restitution award.

State v. Gaul 301 Or App 712 (December 4, 2019) (Aoyagi) (Tillamook County, Hill)

MERGER - Criminal mistreatment and assault

Trial court plainly erred by failing to merge convictions for criminal mistreatment and assault. Reversed and remanded.

State v. Belcher 301 Or App 168 (December 4, 2019) (Per curiam) (Multnomah County, Roberts)

MERGER - Possession of a stolen vehicle and unlawful use of a vehicle

Trial court plainly erred by failing to merge convictions for possession of a stolen vehicle and unlawful use of a vehicle. Reversed and remanded.

State v. Ayala 301 Or App 171 (December 4, 2019) (Per curiam) (Jefferson County, Ahern)