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Oregon Appellate Court, February 3, 2021

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by: Rankin Johnson • February 5, 2021 • no comments

 

Summarized by Rankin Johnson, OCDLA

EVIDENCE - Accomplice-witnesses

Error in instructing that a witness was an 'accomplice witness' whose testimony should be viewed with distrust was harmless. Affirmed.

The court nonetheless held that an accomplice-witness instruction should be given to counteract an accomplice's attempt to shift blame to the defendant.

Some counts were reversed due to nonunanimous verdicts, even those that merged into nonunanimous verdicts, but the primary conviction, for aggravated murder, remained.

State v. Nelson 309 Or App 1 (February 3, 2021) (Lagesen) (Lane County, Vogt)

DEFENDANT'S STATEMENTS - Promises of lenience

Defendant's statement was not induced by a promise of lenience. Affirmed.

The court explained that the issue was highly fact-dependent.

State v. Pryor 309 Or App 12 (February 3, 2021) (Lagesen) (Lincoln County, Branford)

THEFT OFFENSES - Ownership

As a member of a voluntary unincorporated fire-fighting association, defendant had an ownership interest in the association's property and could not be convicted of stealing it. Reversed.

State v. Peterson 309 Or App 31 (February 3, 2021) (DeHoog) (Grant County, Crowley)

JURY VERDICTS - Unanimity

On reconsideration, acceptance of nonunanimous verdict constituted plain error. Reversed.

State v. Merrill 309 Or App 68 (February 3, 2021) (James) (Multnomah County, Walker)

JURY VERDICTS - Concurrence

Single incident leading to multiple injuries did not require concurrence instruction as to which injury constituted assault. Affirmed.

The court reversed the convictions that were based on nonunanimous verdicts.

State v. Arellano-Sanchez 309 Or App 72 (February 3, 2021) (James) (Washington County, Wipper)

EVIDENCE - Authentication

Recordings made by commercial recording system and copied by jail deputy were adequately authenticated. Affirmed.

The court explained that a recording was authenticated if the proponent offered evidence sufficient to support a finding that the evidence is what its proponent claims. The court reversed the convictions that were based on nonunanimous verdicts.

State v. Barden 309 Or App 87 (February 3, 2021) (James) (Lane County, Kasubhai)

SENTENCING - Departure factors

Trial court erred by including unpled departure factor in judgment, even when the court relied on other factors to depart. Reversed.

The court declined to consider Miranda issue as harmless.

State v. Pusztai 309 Or App 95 (February 3, 2021) (James) (Coos County, Barron)

FAPA, STALKING, AND RESTRAINING ORDERS - Contacts

Repeated nonthreatening contacts with former romantic partner did not support stalking order. Reversed.

H.L.P. v. Jones 309 Or App 108 (February 3, 2021) (Mooney) (Clackamas County, Van Dyk)

SUPERVISION - Geographic restrictions

Sentencing court did not plainly err by imposing probation conditions requiring defendant to obtain permission before traveling to Wallowa County and prohibiting him from traveling to Arizona.

While acknowledging that the restrictions were troublingly broad, the Court of Appeals noted that the trial court had continuing jurisdiction to address probation issues.

State v. Henderson 309 Or App 127 (February 3, 2021) (Kamins) (Lincoln County, Bachart)

CIVIL COMMITMENT - Sufficiency

Respondent's repeated threats, leading to hostile encounters and a violent standoff with the police, were sufficient for involuntary civil committment.

State v. S.S. 309 Or App 131 (February 3, 2021) (Kamins) (Multnomah County, Herranz)

JURY VERDICTS - Unanimity

On reconsideration, acceptance of nonunanimous verdict constituted plain error. Reversed.

State v. Horner 309 Or App 136 (February 3, 2021) (Hadlock) (Lane County, Carlson)

SENTENCING- Merger

Multiple touches to multiple body parts over the course of an hour should merge into a single sexual-abuse conviction. Reversed.

State v. Lasheski 309 Or App 140 (February 3, 2021) (Hadlock) (Deschutes County, Miller)