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Oregon Appellate Court, January 29, 2020

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by: Rankin Johnson IV • February 6, 2020 • no comments

 

Summarized by Rankin Johnson, OCDLA

TRIAL PROCEDURE - Preservation and making a record

Camping ordinances do not violate constitution. Affirmed.

Defendant was arrested for camping in Portland. Before trial, he filed a motion to dismiss, later captioned a demurrer, raising numerous arguments. The Court of Appeals held that he failed to make a factual record showing that there were no homeless shelters available and that his as-applied arguments could not be raised pre-trial.

Ortega, concurring, would have held that the Eighth Amendment prohibits punishing a homeless person for camping when no alternative is available, but agreed that defendant had not made an adequate record.

James, concurring, believed that because defendant's argument applied to a class of people it was a proper facial challenge, which James would have rejected on the merits.

State v. Barrett 302 Or App 23 (January 29, 2020) (DeVore, Ortega concurring, James concurring) (Multnomah County, Bushong)

SENTENCING - Comparable convictions

Federal offense of transporting child pornography across state lines is not analogue to Oregon child-pornography offense. Reversed and remanded.

State v. Kirkpatrick 302 Or App 62 (January 29, 2020) (DeVore) (Easterday County, Yamhill)

EVIDENCE - 403 balancing

Video of defendant's interview in jail was admissible. Affirmed.

Defendant argued that only the audio should be admitted, but the audio was poor and the video showed his expressions and gestures.

State v. Boauod 302 Or App 67 (January 29, 2020) (Lagesen) (Beaverton Municipal, Ravelo)

TRAFFIC OFFENSES - Following too closely

Following within six feet at 55-60 miles per hour at night on wet road supported conviction for following too closely. Affirmed.

State v. Guynn 302 Or App 78 (January 29, 2020) (Lagesen) (Yamhill County, Justice)

SEARCH AND SEIZURE - Automobile exception

State's appeal. Automobile exception does not require state to show that it could not get a warrant in a reason. Reversed and remanded.

The court rejected defendant's argument that the automobile exception was no longer a per-se rule, but left open the possibility that the law permitted defendant to show, in an individual case, that getting a warrant was practical.

State v. McCarthy 302 Or App 82 (January 29, 2020) (James) (Marion County, Partridge)

DEFENSES - Passive resistance

Whether continuing to walk constitutes passive resistance, a defense to interfering with a peace officer, is not plain. Affirmed.

State v. Swartz 302 Or App 93 (January 29, 2020) (Aoyagi) (Douglas County, Burge)

CIVIL COMMITMENT - Sufficiency of the evidence

Single act of punching another patient in the back while hospitalized, combined with bipolar disorder and obsessive showering, did not support involuntary civil commitment. Reversed.

State v. J.G. 302 Or App 97 (January 29, 2020) (Aoyagi) (Lane County, Merten)

TRIAL PROCEDURE - Admission of exhibits

Report was admitted into evidence where court acknowledged receiving it, both counsel referred to it, and court referred to it in ruling, even where it was not marked or formally admitted and record of hearing said there were no exhibits. Affirmed.

State v. J.W. 302 Or App 104 (January 29, 2020) (Aoyagi) (Lane County, Merten)

SENTENCING - Financial obligations

Court did not plainly err by imposing $1,255 fine for DUII, notwithstanding lack of evidence of defendant's finances in the record. Affirmed.

Aoyagi, concurring, noted that some financial obligations could not be imposed without evidence regarding defendant's finances, and the Court of Appeals would reverse as plain error, but other financial obligations required no such evidence. She would not reach the issue in this case, because it was not appropriate for plain-error review.

State v. Shepherd 302 Or App 118 (January 29, 2020) (Per curiam, Aoyagi concurring) (Josephine County, Hull)