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Oregon Appellate Court, June 12, 2019

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by: Rankin Johnson • June 18, 2019 • no comments

Summarized by Rankin Johnson, OCDLA

RESTITUTION - Stipulations and plea agreements

Trial court erred in implicitly finding that restitution was part of plea agreement, and in precluding defendant from objecting to restitution award. Reversed and remanded.

State v. Nosbisch 298 Or App 1 (June 12, 2019) (Egan) (Union County, Dretke)

MENS REA - Knowledge of victim's age

Evidence insufficient to prove that defendant knew the victim's age. Reversed and remanded.

Defendant was only guilty of online sexual corruption if he "reasonably believed" the victim, a fifteen-year-old boy, was younger than sixteen. The victim told defendant he was an adult. The Court of Appeals reasoned that the defendant could not have known that a fifteen-year-old was actually sixteen based on appearance.

State v. Gale 298 Or App 6 (June 12, 2019) (Egan) (Washington County, Butterfield)

BURGLARY - Intent to commit crime in house

Evidence insufficient to show that defendant intended to commit a crime when his license to be in the house was revoked. Reversed.

Defendant was visiting his niece, and she asked him to leave. He refused. Defendant's father-in-law came to the house, and defendant punched him. The Court of Appeals reasoned that the evidence did not show that he had the intent to commit a crime at the time he was directed to leave, or that he refused to leave in order to facilitate committing a crime.

State v. Payton 298 Or App 22 (June 12, 2019) (Ortega) (Jackson County, Mejia)

EVIDENCE - Other-bad-acts and propensity evidence

Trial failed to balance probative value of other-bad-act evidence as nonpropensity evidence and as propensity evidence. Reversed and remanded.

Defendant was accused of sex offenses against his granddaughters. He offered evidence that he behaved appropriately around children. In rebuttal, the state offered the testimony of the victims' mother, defendant's daughter, that he had committed sex offenses against her. On appeal, the state argued that the evidence was admissible to show sexual purpose. In holding otherwise, the Court of Appeals held that the trial court had failed to conduct on-the-record balancing.

State v. Cave 298 Or App 39 (June 12, 2019) (Ortega) (Deschutes County, Adler)

SELF-INCRIMINATION - Evidence of assertion of right to remain silent

Trial court erred by denying mistrial motion after police officer twice said that defendant said he had 'nothing to say' when questioned. Reversed and remanded.

State v. Sprow 298 Or App 44 (June 12, 2019) (Hadlock) (Washington County, Butterfield)

SENTENCING - Consecutive sentences

Trial court erred by imposing consecutive sentences for sodomy and unlawful use of the firearm, when the firearm was used to compel the victim to engage in sodomy. Reversed and remanded.

State v. Swearingen 298 Or App 56 (June 12, 2019) (Hadlock) (Multnomah County, Skye)


Defendant was guilt of disorderly conduct if he 'recklessly' created a risk of public inconvenience, annoyance, or alarm. Affirmed.

State v. West 298 Or App 125 (June 12, 2019) (Kistler) (Multnomah County, James/Marshall)


Any error in judgment was moot because amended judgment, with same error, had not been appealed. Dismissed.

State v. Nguyen 298 Or App 139 (June 12, 2019) (Per curiam) (Curry County, Beaman)