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Oregon Appellate Court, July 31, 2019

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by: Rankin Johnson • August 5, 2019 • no comments

Summarized by Rankin Johnson, OCDLA

EVIDENCE - Therapy privilege

Admission of evidence regarding statements defendant made to a therapist was harmless. Reversed on other grounds.

Defendant was accused of rape and assault against his wife. The state called defendant's counselor as a witness, and the counselor testified about defendant's statements. The state also offered evidence of statements defendant made to other people about counseling. Defendant testified and discussed the counselor's testimony.

The court held that any error in admitting the counselor's testimony was harmless. The court also held that defendant's testimony could be included in the harmlessness calculation.

The court reversed and remanded for merger of felony assault in the fourth degree and misdemeanor assault in the fourth degree.

State v. Lachat 298 Or App 579 (July 31, 2019) (Hadlock) (Crook County, Williams)

PROBATION - Source of probation terms

Order directing defendant to appear to show proof that he completed treatment did not create probation condition. Reversed and remanded.

Defendant was ordered to complete anger management and to appear in court at a specified time to show proof he had done so. He did not appear. The state moved to revoke defendant's probation for his failure to appear, and the court found him in violation for failing to appear and extended his probation and imposed a probation-violation fee.

The Court of Appeals held that the court erred by imposing the probation-violation fee, and that any error in extending probation was moot.

State v. Ramirez 298 Or App 596 (July 31, 2019) (Hadlock) (Marion County, Wren)

APPELLATE PROCEDURE - Timeliness of notice of appeal

Notice of appeal mailed by ordinary mail on due date and received two days thereafter was untimely. Appeal dismissed.

The court explained that a recent statutory amendment permitting filing by commercial carriers for delivery within three days did not include ordinary first-class mail, because, first-class mail is intended to be delivered within three business days, not three calendar days. The court sought an answer universally applicable by carrier and class of mailing, which would create a trap for the unwary, and thereby disagreed with Aoyagi's concurrence, which would require consideration of the particular day and week of mailing.

Aoyagi, concurring, argued that a first-class letter mailed on a Monday in a week with no holidays would typically be delivered within three days, satisfying the timeliness requirement, but it did not provide the required receipt.

Egan, dissenting, agreed with Aoyagi as to timeliness and further would have held that the postmark satisfied the requirement of a receipt showing the date of mailing.

State v. Chapman 298 Or App 603 (July 31, 2019) (DeVore, Aoyagi concurring, Egan dissenting) (Coos County, Pruess)

EVIDENCE - FSTs as scientific evidence

State did not lay foundation for police officer to testify about scientific foundation of FSTs. Reversed and remanded.

State v. Eatinger 298 Or App 630 (July 31, 2019) (Dehoog) (Multnomah County, Nelson)

RESTITUTION - Evidence required to support restitution for medical bills

State failed to offer evidence that medical bills were reasonable or necessary. Reversed and remanded.

Testimony supported by an insurance ledger showing that the bills were paid was not sufficient to meet the state's burden.

State v. Dickinson 298 Or App 679 (July 31, 2019) (Aoyagi) (Washington County, Fun)

SENTENCING - Statutory maxima for guidelines sentences

Court plainly erred by imposing sixty month prison term followed by twenty-four months of PPS for Class C felony. Reversed and remanded.

State v. Richardson 298 Or App 686 (July 31, 2019) (Per curiam) (Linn County, Bishpam)

RESTITUTION - Default judgment in restitution proceeding

Defendant's failure to appear at restitution hearing was not a basis to award restitution. Reversed and remanded.

State v. McMichael 298 Or App 688 (July 31, 2019) (Per curiam,) (Washington County, Butterfield)

SEARCH AND SEIZURE - Inventory policies

Search at courthouse pursuant to inventory policy applicable to arrestees and inmates was not lawful. Reversed and remanded.

State v. Mendez 298 Or App 695 (July 31, 2019) (Per curiam) (Marion County, Hart)