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Oregon Appellate Court, March 10, 2021

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


Summarized by Rankin Johnson, OCDLA


Trial court erred by instructing jury on, and accepting, nonunanimous verdict. Reversed.

The issue was raised for the first time on reconsideration.

State v. Bradley 309 Or App 598 (March 10, 2021) (Ortega) (Washington County, Bailey)

SEX CRIMES - Sexual Contact

Error in failing to define 'sexual contact' for the jury was harmless. Affirmed.

The court reversed and remanded for resentencing, because the sentencing court imposed a restitution award for CARES, which was not a victim.

State v. Burris 309 Or App 604 (March 10, 2021) (DeVore) (Washington County, Wipper)


Instructing jury that it could return nonunamimous verdict was reversible notwithstanding lack of jury poll. Reversed.

Under federal law, the state bore the burden to prove harmlessness.

State v. Scott 309 Or App 615 (March 10, 2021) (DeHoog, Mooney specially concurring) (Marion County, Prall)

SEARCH AND SEIZURE - Conduct constituting a search

Entering defendant's private property and holding a broken piece of car bumper next to defendant's car was an invasion of privacy requiring a warrant. Reversed.

The court rejected the state's argument that, by not touching or manipulating defendant's car, the officer did not perform a search. Rather, by closely inspecting defendant's car, the officer exceeded the implicit license for the public to approach the door.

DeVore, dissenting in part, would have held that manipulating an object, or otherwise revealing something hidden, would be required to find that police engaged in a search.

State v. Goldberg 309 Or App 660 (March 10, 2021) (En banc, James, DeVore concurring in part and dissenting in part) (Lane County, Carlson)

DEFENDANT'S STATEMENTS - Compelling circumstances

Miranda warnings were not required when defendant's probation officer, accompanied by other probation officers, questioned him about violating his probation. Affirmed.

State v. Love-Faust 309 Or App 734 (March 10, 2021) (Powers) (Douglas County, Simmons)

EVIDENCE - Other bad acts

Prior conviction for kidnapping and sex offenses was not admissible to show intent or motive in trial for kidnapping and sex offenses. Reversed.

In explaining that the error was harmful, the court wrote that propensity evidence is "severely prejudicial," and that the prosecutor had argued in the trial court that the evidence was "essential."

State v. Levasseur 309 Or App 745 (March 10, 2021) (Mooney) (Lane County, Rigmaiden)

SENTENCING - Special probation conditions

Special probation conditions related to drug and alcohol were unconnected to the crime of conviction and thus improper. Reversed.

State v. Welt 309 Or App 762 (March 10, 2021) (Per curiam) (Benton County, Connell)

MENS REA - Value

In criminal mischief prosecution, state did not need to prove that defendant knew the value of the damage. Affirmed.

State v. Morales 309 Or App 777 (March 10, 2021) (Per curiam) (Umatilla County, Lieuallen)