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Oregon Appellate Court, January 27, 2021

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by: Rankin Johnson • February 2, 2021 • no comments


Summarized by Rankin Johnson, OCDLA

SENTENCING - Repeat offenders

Following reversal of one conviction under Ramos, defendant's second sentence was no longer eligible for 25-year minimum. Reversed.

Defendant and state both appealed initially, after defendant was convicted in a single trial of two major felony sex crimes in separate episodes but the sentencing court declined to impose a 25-year term. The Court of Appeals reversed the sentencing court's finding that defendant's 25-year sentence was excessive. On reconsideration following Ramos, the court found that the reversal of the first-in-time offense precluded imposition of the 25-year term.

State v. Rideout 308 Or App 689 (January 17, 2021) (Tookey) (Marion County, Hart)


Marijuana use does not violate controlled-substance probation term. Reversed.

State v. Heaston 308 Or App 694 (January 17, 2021) (Tookey) (Washington County, Roberts)

SEARCH AND SEIZURE - Officer safety

Sitting in a car in a parking lot at night with a companion and putting stuff in your pocket does not give rise to a well-founded fear for a stopping officer's safety. Reversed.

Those facts also did not give reasonable suspicion to stop.

State v. Goguen 308 Or App 706 (January 17, 2021) (Tookey) (Jackson County, Greif)


Defendant failed to justify discretionary dismissal of appeal after he obtained relief he sought. Motion to dismiss denied.

State v. Moore 308 Or App 724 (January 17, 2021) (James) (Clackamas County, Herndon)

SEARCH AND SEIZURE - Delay in seeking warrant

Any error in waiting five days to seek warrant to search cell phone was harmless. Affirmed.

The court declined to reach a demurrer as invited. Egan, dissenting in part, would have considered an argument in the reply brief that the majority did not, and would have held that the wrongful search of the cell-phone was harmful.

State v. Thompson 308 Or App 729 (January 17, 2021) (Aoyagi, Egan dissenting in part) (Multnomah County, Rees)

SEARCH AND SEIZURE - Probable cause

Probable cause that defendant was trespassing and peeping in windows did not support warrant to search phone. Reversed.

The court explained that the investigating officer's training and experience was not sufficient to make up for the gap in the evidence.

The court further held that 'permitting' oneself to record a child engaging in sexually explicit activity is not the offense of using a child in a display of sexually explicit conduct.

State v. Cazee 308 Or App 748 (January 17, 2021) (Aoyagi) (Clatsop County, McIntosh)

EVIDENCE - Other bad acts

In animal-abuse trial where defendant is accused of throwing dog to the ground, evidence that defendant previously threw cat to the ground was relevant to show awareness of the risks. Affirmed.

State v. Fockler 308 Or App 765 (January 17, 2021) (Powers) (Tillamook County, Hill)

SEARCH AND SEIZURE - Probable cause

Defendant's possession of phone while he committed various offenses did not support warrant to search phone. Reversed.

The court explained that the investigating officer's training and experience was not sufficient to make up for the gap in the evidence.

The court also held that the trial court erred in failing to explain its exercise of discretion in denying a mid-trial proffered waiver of jury.

State v. Hernandez 308 Or App 783 (January 17, 2021) (Powers) (Marion County, Bennett)


Defendant was stopped when, while on a Tri-Met train, a police officer asked him to provide proof that he had paid his fare. Reversed.

The court distinguished between a Tri-Met fare inspector and a police officer, and explained that a reasonable person would not feel free to leave if approached by a police officer. The court declined to consider, as unpreserved, whether it had been a valid administrative search.

State v. Almahmood 308 Or App 795 (January 17, 2021) (Hadlock) (Washington County, Roberts)

SENTENCING - Restitution

Victim had 30 days from date he knew or should have known that state was not pursuing restitution claim to file independent claim. Affirmed.

The court also rejected defendant's arguments that he contributed less than his co-defendants to the victim's injuries, and that the sentencing court should have allocated restitution based on fault.

State v. Jensen 308 Or App 808 (January 17, 2021) (Kistler) (Multnomah County, Wittmeyer)