A Book from the Library of Defense

Oregon Appellate Court, July 15, 2020

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by: Rankin Johnson • July 21, 2020 • no comments


Summarized by Rankin Johnson, OCDLA

BURGLARY - Trespass element

By struggling against assault by defendant, victim implicitly revoked defendant's license to be in her residence. Affirmed.

State v. Hopkins 305 Or App 425 (July 15, 2020) (Tookey) (Marion County, Abar)

POST-CONVICTION RELIEF - Ineffective assistance of counsel

Counsel was not ineffective in failing to seek a mere-presence instruction, because the uniform instructions were adequate. Affirmed.

The court suggested that a mere-presence instruction need not be given, but did not decide that issue, because counsel's choice not to seek it was the reasonable exercise of discretion.

Torres v. Persson 305 Or App 466 (July 15, 2020) (DeHoog) (Washington County, Bergman)

APPEAL AND REVIEW - Preservation

In light of trial court's express finding that probable cause existed that defendant personally committed drug crimes, argument on appeal that police could not detain defendant as a witness was inadequate for appellate review. Affirmed.

State v. Chittenden 305 Or App 483 (July 15, 2020) (Aoyagi) (Clackamans County, Karabeika)

POST-CONVICTION RELIEF - Ineffective assistance of counsel

Because medical professionals had already drawn defendant's blood, a second blood draw for evidence of DUII was not exigent. Reversed.

The state bore the burden of proof and failed to offer evidence that the medical blood draw was different, scientifically or evidentiarily, from the forensic blood draw.

State v. Kelly 305 Or App 493 (July 15, 2020) (Mooney) (Multnomah County, Oden-Orr)

POST-CONVICTION RELIEF - Ineffective assistance of counsel

Trial counsel was not ineffective in failing to offer evidence of a primary witness's bias because the judge, sitting as finder of fact, was already aware of the bias and discounted the witness's testimony. Affirmed.

The Court of Appeals further held that, under the facts of the case, other evidence corroborated the important parts of the witness's testimony. Finally, the Court of Appeals held that, viewed in context, the trial court's statement that defendant 'should have known' that a truck was stolen did not show that the trial court had used the wrong standard.

Boswell v. State 305 Or App 515 (July 15, 2020) (Kamins) (Sherman County, Stauffer)

EXPUNGEMENT - Eligible offenses

Because the record erroneously reflected that defendant was convicted of a crime rather than contempt, defendant was entitled to seek expungement. Reversed and remanded.

State v. McVein 305 Or App 525 (July 15, 2020)(Kamins) (Clackamas County, Rastetter)

EVIDENCE - Other-bad-acts

Trial court erred in admitting evidence that he used methamphetamine the day before an altercation, which evidence was offered to rebut his self-defense claim. Reversed.

State v. Hall 305 Or App 542 (July 15, 2020) (Per curiam) (Clackamas County, Weber)