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Oregon Appellate Court, June 30, 2021

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by: Rankin Johnson • July 2, 2021 • no comments

 

Summarized by Rankin Johnson, OCDLA

EVIDENCE - Eyewitness identifications

Trial court did not err in admitting eyewitness identifications, even though police showed the witnesses an image of the defendant to verify her identity. Affirmed.

The Court of Appeals disagreed with the trial court that, because the police had a tentative name for the suspect before showing the picture, Lawson/James on eyewitness identifications did not apply, but, under those cases, the identification was admissible. Even without the testimony of the witnesses, the state offered sufficient evidence to permit the trial court to decide that the witness's observations of defendant were reliable and not tainted. Further, the trial court conducted necessary 403 balancing.

The trial court erred in failing to give the model Ninth Circuit instruction on eyewitness identifications, but the error was harmless.

The court also reversed a convictions based on a nonunanimous verdict.

State v. Allen 312 Or App 584 (June 30, 2021) (Ortega) (Klamath County, Osborne)

SENTENCING - Probation conditions

Probation condition forbidding sex-offender from entering into intimate or sexual relationships without his probation officer's permission was valid. Affirmed.

The challenged condition was neither impermissibly vague nor an impermissible restriction on the right to personal relationships.

State v. Farris 312 Or App 618 (June 30, 2021) (DeVore) (Washington County, Sims)

NATIVE AMERICAN LAW - Treaty defenses

In prosecution for unlawfully taking game animal, defendant was entitled to assert defense under Yakima Treaty of 1855. Reversed.

Under the treaty, members of the Yakima Nation are permitted to hunt and fish on "open and unclaimed land," which meant land that, regardless of ownership, was not enclosed, occupied, or regularly used.

State v. Begay 312 Or App 647 (June 30, 2021) (Tookey) (Wasco County, Stauffer)

SEARCH AND SEIZURE - Officer safety

Officer-safety considerations did not justify handcuffing defendant. Reversed.

Defendant was a passenger in a vehicle stopped for drug offenses. Police handcuffed him after patting him down and discovering a pocketknife and a foreign object under his waistband. Although defendant had prior arrests for weapons offenses and reported gang involvement, the state could not prove that he was a current threat.

State v. Lora 312 Or App 666 (June 30, 2021) (Tookey) (Jackson County, Orr)

POST-CONVICTION RELIEF - Church hearings

Post-conviction court did not err by declining to direct counsel to raise Church claims based on the court's view of the merits of the claims. Affirmed.

Pohlman v. Cain 312 Or App 676 (June 30, 2021) (DeHoog) (Malheur County, Pratt)

SEARCH AND SEIZURE - Reasonable suspicion

Observing an apparent hand-to-hand transaction in the parking lot of a bar that was notorious for drug offenses, and then seeing cash in defendant's hand, was reasonable suspicion to stop defendant and ask him about drugs. Affirmed.

State v. Hollins 312 Or App 682 (June 30, 2021) (DeHoog) (Jackson County, Barnack)

BURGLARY - Dwelling

Separately-locked bedroom in shared living space was 'dwelling' for purposes of burglary conviction. Affirmed.

The victim and the defendant each rented their portion of the space from a third tenant. Although all three were related, the house did not function as a unitary family residence.

State v. Perez-Salas 312 Or App 693 (June 30, 2021) (DeHoog) (Washington County, Fun)

SENTENCING - Consecutive sentences

Rape and sexual abuse from the same criminal episode could not be sentenced consecutively, because the record contained no evidence about the timing of the offenses. Reversed.

The court also found that a possible Miranda error was harmless.

State v. Sanchez-Chavez 312 Or App 701 (June 30, 2021) (Aoyagi) (Washington County, Wipper)

APPEALS - Post-opinion dismissal

Appellant's unopposed motion to dismiss denied with leave to refile.

The court explained that post-opinion dismissals are disfavored, because they waste time and resources and may be used to obtain improper advisory opinions. The court will consider such motions based on practical, rather than legal, consequences, such as DOC placement.

State v. Lasheski 312 Or App 714 (June 30, 2021) (Hadlock) (Deschutes County, Miller)