Oregon Appellate Court, June 23, 2021
Summarized by Rankin Johnson, OCDLA
SENTENCING - Merger
Trial court plainly erred in failing to merge theft conviction into robbery conviction. Reversed.
Following a remand from the Supreme Court, the Court of Appeals explained that, for merger purposes, completed and attempted crimes are the same. Because robbery required an attempted or completed theft, the theft merged into the robbery.
State v. Postlethwait 312 Or App 467 (June 23, 2021) (Ortega) (Coos County, Stone)
SEARCH AND SEIZURE - Police conduct constituting seizure
Asking passenger to exit car and submit to patdown constituted seizure. Reversed.
The stop took place in the median of a highway, with heavy traffic on both sides. Accordingly, defendant could not walk away. He was observed by one of the stopping officers and directed to comply with instructions when asked to leave the car, and police did not explain that they wanted defendant to exit the car so they could search it. Under the facts of this case, the defendant would not have felt free to terminate the encounter, and thus was seized.
State v. Prouty 312 Or App 495 (June 23, 2021) (Shorr) (Clackamas County, Karabeika)
SENTENCING - Reviewability
Consecutive probation-revocation sentences are not reviewable because defendant stipulated to them in connection with the plea bargain. Affirmed.
State v. Thomas 312 Or App 527 (June 23, 2021) (James) (Lake County, Nichols)
DEFENDANT'S STATEMENTS - Invocation
Defendant's statement, "I don't have a lawyer right now. Let's continue," was not an equivocal invocation of the right to counsel. Affirmed.
The court reversed defendant's convictions that were based on nonunanimous jury verdicts.
State v. Tellez-Suarez 312 Or App 531 (June 23, 2021) (James) (Washington County, Wipper)
DUII - FSTs
Trial court plainly erred in admitting evidence that FSTd were "pass or fail." Reversed.
Although, immediately before the objectionable evidence, defendant objected to other evidence for a similar reason, the error raised on appeal was not preserved.
State v. Reid 312 Or App 540 (June 23, 2021) (James) (Deschutes County, Forte)
CIVIL COMMITMENT - Dangerousness
Evidence did not establish that respondent was a danger to others. Reversed.
Powers, concurring, observed that the 'dangerous to others' standard might be more rigorous than the legislature intended, and he suggested that the court should consider the issue in an appropriate case.
State v. J.W.B. 312 Or App 549 (June 23, 2021) (Per curiam, Powers concurring) (Benton County, Demarest)