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Oregon Appellate Court, January 21, 2021

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by: Rankin Johnson • January 21, 2021 • no comments


Summarized by Rankin Johnson, OCDLA

EVIDENCE - Hearsay and witness availability

State should have sought a continuance to try to bring witness to court before relying on prior-testimony exception to hearsay rule, which requires proof of unavailability. Reversed.

The witness was reluctant, and had evaded service, and defendant's threats toward the witness also contributed to her failure to appear. But defendant's threats were not sufficient on their own to prove unavailability, and thus the state should have sought a continuance as part of making reasonable efforts to secure the attendance of a crucial witness.

State v. Cecconi 308 Or App 534 (January 21, 2021) (Egan) (Multnomah County, Hodson)

SEARCH AND SEIZURE - Voluntariness

Repeated requests to search, combined with moving closer and accusations of criminal conduct, and repeated refusals from defendant, rendered defendant's ultimate consent involuntary. Reversed.

The court reversed defendant's PCS conviction, but declined to suppress the underlying citation, and therefore affirmed defendant's conviction for failure to appear on that citation.

State v. Jordan 308 Or App 547 (January 21, 2021) (Ortega) (Lane County, Merten)


Defendant's argument that dismissal of prior stalking order tended to show bias was unreviewable because defendant failed to make an offer of proof. Affirmed.

State v. Mosley 308 Or App 564 (January 21, 2021) (Ortega) (Tillamook County, Hill)


Evidence was sufficient to show that defendant was not entitled to GBI defense. Affirmed.

Defendant suffered from both schizophrenia, which cin support a GBI defense, and antisocial personality disorder, which cannot. The court considered only whether schizophrenia, on its own, led to a lack of capacity.

The court also held that defendant's request for findings, in a bench trial, was not specific enough to trigger an obligation by the trial court to comply.

Finally, the court held that a true-life sentence was proportionate, and the sentencing court did not err in declining to consider an EED defense when notice was not timely filed.

State v. Meisner 308 Or App 570 (January 21, 2021) (DeVore) (Clackamas County, Weber)


Respondent had been diagnosed with schizophrenia or schizoaffective disorder, but his erratic and threatening behavior was not connected to his mental illness. Reversed.

Although respondent struggled with his mental health and engaged in behaviors that could be viewed as violent or threatening, he had an apartment, and access to food. The record did not establish that future violence was highly likely.

State v. E.J.J. 308 Or App 603 (January 21, 2021) (DeHoog) (Marion County, Caso)

TRIAL PROCEDURE - Joinder and severance

Criminal mischief and harassment should not have been joined with kidnapping and strangulation. Reversed.

Charges from three different incidents were joined for trial, based on being "part of a common scheme or plan." The court reversed some counts due to nonunanimous verdicts. As to the remaining counts, it found some could properly have been joined, any error as to others was harmless, and reversed the remainder.

State v. Smith 308 Or App 639 (January 21, 2021) (Aoyagi) (Marion County, Geyer)

EVIDENCE - Relevance

Trial court erred by excluding evidence that defendant's foot was broken in resisting-arrest trial. Reversed.

The court explained that the officer had a motive to file resisting-arrest charges after learning that defendant's foot was broken, and defendant was entitled to cross-examine the officer on that topic.

State v. Kennedy 308 Or App 651 (January 21, 2021) (Mooney) (Jackson County, Barnack)