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Oregon Appellate Court, July 14, 2021

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by: Rankin Johnson • July 16, 2021 • no comments


Summarized by Rankin Johnson, OCDLA


Driving by petitioner's house and taking cell-phone pictures when petitioner was not there was not a contact supporting issuance of a stalking order. Reversed.

Petitioner had a "tense" history with respondent, his former father-in-law, but no threats or violence except a single incident when respondent "rammed" or "bumped" petitioner's vehicle with his own, in the driveway, in response to perceived trespassing. That history gave no reason to interpret an innocuous contact as threatening.

J.D.B. v. Muller 313 Or App 171 (July 14, 2021) (Egan) (Umatilla County, Temple)

EVIDENCE - Other-bad-acts

Prior acts of abuse were relevant and not unfairly prejudicial when offered to show why the victim did not report subsequent abuse. Affirmed.

After an earlier appeal, the case had been remanded for the trial court to conduct OEC 403 balancing and determine whether a retrial was necessary. In doing so, the trial court did not err in failing to limit its review to the evidentiary theory that the state had emphasized in argument. In ruling, the court had adequately explained its reasoning.

The court declined to consider, as law of the case, arguments that had been raised in the first appeal and rejected without discussion.

State v. Altabef 313 Or App 240 (July 14, 2021) (DeVore) (Marion County, Hart)

APPEAL AND REVIEW - Preservation

In probation-revocation proceeding, defendant preserved objection to the use of hearsay evidence by invoking the Confrontation Clause. Reversed.

Because it was a probation hearing, the Confrontation Clause did not apply, and the court found it was "a close call," but defendant made an argument based on the pragmatic considerations that underlie the Due Process argument that prevailed on appeal.

State v. Brown 313 Or App 283 (July 14, 2021) (Lagesen) (Klamath County, Janney)

SENTENCING - Restitution

Restitution award properly included attorney fees incurred by the victim. Affirmed.

The court held that the victim's retention of counsel was foreseeable, but that some restitution imposed for medical bills was improper because the state did not prove that the bills were reasonable. The case was remanded for further proceedings.

State v. Fox 313 Or App 317 (July 14, 2021) (Powers) (Jackson County, Barnack)

PRELIMINARY HEARING - Consideration of defenses

Preliminary-hearing court did not err in declining to consider defenses in determining whether a charge was supported by probable cause. Affirmed.

The court observed that defendant's self-defense argument had been presented to, and rejected by, the jury, and thus there was no reason for further review.

State v. Belleque 313 Or App 339 (July 14, 2021) (Mooney) (Multnomah County, Roberts)

SEARCH AND SEIZURE - Reasonable grounds

Defendant's history of drug use did not provide reasonable grounds to suspect current drug possession. Reversed.

Defendant was on short-term transitional leave when he was stopped for a traffic infraction. The stopping officer called defendant's PO, who said that defendant had recently admitted to using methamphetamine and had been associating with another drug user. The PO advised the stopping officer to ask for permission to search for drugs or weapons.

The court explained that "reasonable grounds" required to seek a supervisee's consent to search was a higher standard than reasonable suspicion, and neither standard was met.

State v. Canepa 313 Or App 348 (July 14, 2021) (Mooney) (Josephine County, Bain)


True allegation of harassment coupled with false allegation of assault is not sufficient for conviction of Initiating a False Report. Reversed.

After a squabble in a doctor's office waiting room, defendant reported to police that a doctor had harassed and assaulted her children. Security video established that the doctor might have committed harassment but did not commit assault, and, thus, part of the report was false. The Court of Appeals reasoned that the false report of assault would have initiated no investigation beyond what was occasioned by the true report of harassment.

State v. Evans 313 Or App 356 (July 14, 2021) (Kamins) (Umatilla County, Liuallen)

BURGLARY - Building

Covered garbage pit is not a "building" for purposes of the burglary statutes. Reversed.

State v. Sjogren 313 Or App 364 (July 14, 2021) (Kamins) (Coos County, Stone)

SEARCH AND SEIZURE - Reasonable suspicion

Where stopping officer did not testify at suppression hearing, and cover officer did not know the reason for the stop, state failed to prove stop was justified. Reversed.

State v. Horner 313 Or App 385 (July 14, 2021) (Per Curiam) (Multnomah County, Lopez)