A Book from the Library of Defense

Oregon Appellate Court, June 16, 2021

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by: Rankin Johnson • June 18, 2021 • no comments


Summarized by Rankin Johnson, OCDLA

EVIDENCE - 403 balancing

Trial court erred in failing expressly to explain its reasoning in rejecting defendant's OEC 403 objection. Reversed.

Defendant objected, on various grounds including unfair prejudice, to admission of video-recordings of statements he made to police. The trial court admitted the evidence without addressing 403 balancing, and defendant made no further objection. In remanding for further findings, the Supreme Court held that, once a party raises a 403-objection, the party is not necessarily required to object further to inadequate findings.

The court also reversed two convictions based on nonunanimous verdicts.

State v. State v. Garcia-Rocio 312 Or App 275 (June 16, 2021) (Egan) (Washington County, Kohl)

DEFENSES - Choice of evils

Defendant was not entitled to choice-of-evils instruction for trespassing and menacing charges that arose during dispute with neighbors over idling trucks. Affirmed.

Defendant was properly prevented from offering evidence that diesel fumes exacerbated his PTSD; choice-of-evils is based on an objective reasonable-person standard, rather than the defendant.

State v. Dart 312 Or App 288 (June 16, 2021) (Armstrong) (Union County, West)

RIGHT TO JURY TRIAL - Nonunanimous verdicts

Convictions based on nonunanimous verdict are invalid. Reversed.

The court declined to address other issues, which may not arise on remand.

Mooney dissented for the reasons in his "special concurrence in State v. Scott, 309 Or App 615, 621-24, 483 P3d 701 (2021), and [his] dissenting opinion in State v. Burke, 311 Or App 611, 613-14, ___ P3d ___ (2021)."

State v. Estrada-Robles 312 Or App 357 (June 16, 2021) (DeHoog, Mooney dissenting) (Lane County, Kasubhai)

TRIAL PROCEDURE - Telephone testimony

In civil-commitment proceeding, any error in permitting witnesses to testify by telephone was harmless. Affirmed.

State v. M. P. 312 Or App 411 (June 16, 2021) (Hadlock) (Wasco County, Ostrye)