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Oregon Appellate Court, June 9, 2021

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by: Rankin Johnson • June 11, 2021 • no comments

 

Summarized by Rankin Johnson, OCDLA

EVIDENCE - 403 balancing

In manslaughter prosecution, video of defendant's boyfriend encouraging defendant's children, including the victim, to use racial epithets was unfairly prejudicial. Reversed.

The victim, who was three years old, drowned in a bathtub. The state's theory was that defendant had been neglectful. The video did not establish any risk to the victim of which defendant should have been aware. Because defendant laughed at her boyfriend's offensive comments, it was extremely prejudicial.

State v. Alvarado 312 Or App 177 (June 9, 2021) (Ortega) (Marion County, Penn)

ATTEMPT TO ELUDE - Vehicles

Mobility scooter is not vehicle on which one may commit the offense of fleeing or attempting to elude a police officer. Reversed.

Police stopped defendant for traffic infractions committed on a 'motor assisted scooter' used for mobility and unable to go faster than 23 miles per hour. After giving defendant her ticket, police told her she could not ride home without a helmet. She did so anyway, and was arrested for felony attempt to elude.

The majority reviewed as plain error the trial court's failure to grant a sua sponte judgment of acquittal. Powers, dissenting, observed that plain error review had increased in recent years and would have remanded for a new trial.

State v. Gayman 312 Or App 193 (June 9, 2021) (Ortega, Powers dissenting) (Curry County, Margolis)

SENTENCING - Fines, fees, and costs

Trial court erred by imposing $255 fee in judgment, but not doing so in open court. Reversed.

The court rejected the state's argument that an in-court reference to an 'assessment' was sufficient.

State v. Bilton 312 Or App 209 (June 9, 2021) (Ortega) (Tillamook County, Trevino)

EVIDENCE - Vouching

Trial court did not plainly err by failing to respond when a police officer testified that an informant, if between "a rock and a hard place" would "pretty much tell you the truth." Affirmed.

The Court of Appeals reversed convictions for UUV based on the theft of two vehicles stolen during the same criminal episode, and remanded for merger and resentencing.

State v. Coats 312 Or App 213 (June 9, 2021) (Lagesen) (Lane County, McIntyre)

SENTENCING - Fines, fees, and costs

Trial court erred by imposing $100 bench-probation fee in written judgment without announcing it in open court. Reversed.

State v. Anotta 312 Or App 220 (June 9, 2021) (Shorr) (Multnomah County, Bergstrom)

ENDANGERING THE WELFARE OF A MINOR - Sufficiency of the evidence

Where defendant lived in a vehicle with numerous syringes, glass pipes, and methamphetamine and heroin residue, permitting a minor to remain in the truck was sufficient to support conviction for endangering the welfare of a minor. Affirmed.

The Court of Appeals reversed a conviction for PCS based on a nonunanimous verdict.

State v. Tatman 312 Or App 224 (June 9, 2021) (Shorr) (Clackamas County, Rastetter)

SENTENCING - Fines, fees, and costs

Trial court erred by imposing $255 DUII conviction fee in written judgment without announcing it in open court. Reversed.

Although the prosecutor expressly asked for the fee, the court did not rule on the request.

State v. Macy 312 Or App 399 (June 9, 2021) (Shorr) (Washington County, Simms)

SEARCH AND SEIZURE - Officer safety

Defendant revving his ATV engine loudly, watching a traffic stop from across the road, and putting his hand in his pocket did not warrant directing him to turn around and put his hands behind his back for officer safety. Reversed.

The court also rejected the state's argument that police had reasonable suspicion that defendant committed the offense of interfering with a police officer.

State v. Phillips 312 Or App 239 (June 9, 2021) (Kamins) (Douglas County, Marshall)