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Oregon Appellate Court, July 3, 2019

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by: Rankin Johnson • July 7, 2019 • no comments

Summarized by Rankin Johnson, OCDLA

RIGHT TO JURY TRIAL - Exclusion of ethnic minorities from jury

Trial court erred in overruling Batson challenge, when prosecutor's express reason for excluding black juror also applied to white jurors who were not excluded. Reversed and remanded.

State v. Curry 298 Or App 377 (July 3, 2019) (Lagesen) (Washington County, Wipper)

RESTITUTION - Reasonableness of medical expenses

$52,000 restitution for periodic replacement of prosthetic eye was reasonable. Affirmed.

Although no witness directly testified that the bills were reasonable, a witness contacted the only prosthetic-eye supplier in Oregon, and an out-of-state supplier, and testified about cost and replacement periods based on those conversations.

State v. Smartt 298 Or App 404 (July 3, 2019) (Tookey) (Harney County, Cramer)

MOTIONS TO ELECT - Purpose and procedures

In menacing prosecution, defendant was not entitled to an election of a specific occurrence. Affirmed.

The court explained that an election motion could be used in one of two circumstances. First, if multiple incidents were reflected in the discovery, defendant might use an election motion to obtain notice of the charges. Second, when the jury might disagree about the facts leading to conviction, an election could be used in place of a Boots instruction.

The Court of Appeals disapproved an election motion, on its own, in lieu of a Boots instruction. Rather, the court urged use of jury instructions, a statement of issues prepared by the parties, or a general verdict form with interrogatories to ensure unanimity.

Because defendant was charged with menacing, and because menacing can be committed through a course of conduct rather than a single discrete act, he was not entitled to either sort of election.

State v. Payne 298 Or App 411 (July 3, 2019) (James) (Douglas County, Ambrosini)

JURY INSTRUCTIONS - Witness-false-in-part instruction

Any error in failing to give witness-false-in-part instruction was harmless. Affirmed.

Defense counsel expressly urged the jury to disbelieve the victim because of evidence she lied, and the jury was free to do so even without the instruction.

State v. Payne 298 Or App 438 (July 3, 2019) (Landau) (Multnomah County, LaBarre)