A Book from the Library of Defense

Oregon Appellate Court, June 5, 2019

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by: Rankin Johnson IV • June 12, 2019 • no comments

Summarized by Rankin Johnson, OCDLA

ASSAULT - Injury

Defendant was entitled to instruction that 'substantial pain' meant pain that was ample or considerable and excluded pain that was fleeting or inconsequential. Reversed and remanded.

State v. Haws 297 Or App 812 (June 5, 2019) (DeVore) (Multnomah County, Bergstrom)

BOYD DELIVERY - Sufficiency of evidence

Evidence was sufficient for jury to infer Boyd delivery. Affirmed.

When stopped for a traffic offense, defendant possessed a sunglass case containing two syringes, cotton swabs, and 9.84 grams of methamphetamine separated into seven baggies of typical sale amounts.

A police officer testified that an individual use is typically .25-.5 grams and that users do not typically carry more than a 'teener,' 1.75 grams, at a time.

State v. Newsted 297 Or App 848 (June 5, 2019) (DeVore) (Coos County, Jacquot)

CIVIL COMMITMENT - Time for hearing

Trial court erred by failing to hold hearing within five days. Reversed.

The Court of Appeals rejected the state's argument that, by appearing late for a different hearing, appellant's counsel caused the court to be unable to complete the hearing on the fifth day.

State v. J.J.S. 297 Or App 856 (June 5, 2019) (DeVore) (Multnomah County, Weisberg)

MEASURE 11 - Factors to consider in proportionality challenge

Any error in failing to consider defendant's disability, and possible victimization in prison, was harmless. Affirmed.

Defendant pleaded guilty to sex abuse in the first degree, an offense that carried a 75-month Measure 11 minimum. Defendant offered evidence that he was mentally disabled and would be victimized in prison. The court declined to consider that evidence in ruling on defendant's proportionality challenge, because, it held, defendant was also more likely to be victimized if he was not in prison. Because the court implicitly rejected the factual underpinnings of defendant's argument, any subsequent error was harmless. Lagesen, concurring, would have held that the possibility of victimization by other inmates was not a term of the sentence and therefore not part of the proportionality analysis.

State v. Cook 297 Or App 862 (June 5, 2019) (James, Lagesen concurring) (Coos County, Barron)