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Oregon Appellate Court, December 8, 2021

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by: Rankin Johnson • December 10, 2021 • no comments


Summarized by Rankin Johnson, OCDLA

EVIDENCE - Domestic-violence hearsay exception
Importance: 3/5

Hearsay statements by the victim that defendant was controlling, became aggressive when drunk, and refused to go to counseling did not explain events within the 24-hour window required for the domestic-violence hearsay exception. Reversed.

The court remanded a harassment conviction for new trial. It reversed a conviction for assault, because the victim's statement that defendant slapped her, causing a 'stingy shock' and pain of "2 out of 10" was not sufficient to prove a physical injury.

State v. Curiel 316 Or App 215 (December 8, 2021) (Lagesen) (Lane County, Cascagnette)

Importance: 1/5

Court declined to review plain error in ordering payment of court-appointed attorney's fees, because defendant did not ask it to do so. Affirmed.

State v. Laune 316 Or App 225 (December 8, 2021) (Dehoog) (Lincoln County, Bachart)

SENTENCING - Departure based on unadjudicated conduct
Importance: 2/5

Trial court did not err in finding persistent involvement based on one conviction and one unadjudicated incident that did not lead to a conviction. Affirmed.

Although caselaw is inconsistent about whether persistent involvement can be based on unadjudicated conduct, defendant failed to engage with the most recent opinion, which was contrary to his position.

State v. Summerlyn 316 Or App 230 (December 8, 2021) (DeHoog) (Lane County, Rasmussen)

SENTENCING - Restitution
Importance: 2/5

When defendant stole the victim's cell phone, preventing him from working for Lyft and causing him to incur fees to Lyft, defendant could be required to pay the fees in restitution. Affirmed.

State v. Venable 316 Or App 235 (December 8, 2021) (James) (Multnomah County, Roberts)

Importance: 3/5

Trial court should have granted mistrial following repeated references to defendant's assertion of his right to remain silent. Reversed.

State v. Hylton 316 Or App 270 (December 8, 2021) (Per curiam) (Lincoln County, Branford)