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Oregon Appellate Court, March 17, 2021

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by: Rankin Johnson • March 17, 2021 • no comments


Summarized by Rankin Johnson, OCDLA


Any reasonable finder of fact would conclude that plaintiff owned truck to which he held valid DMV title. Reversed.

Sova v. Vital Auto Brokers 310 Or App 1 (March 17, 2021) (Armstrong) (Multnomah County, Skye)


A Class-B misdemeanor jury verdict must be unanimous. Reversed.

State v. Heine 310 Or App 14 (March 17, 2021) (Lagesen) (Benton County, Connell)

EVIDENCE - Victim's sexual history

Evidence that 13-year-old victim of sex offenses had not been a virgin was not admissible to demonstrate that she learned about sex other than from the defendant. Affirmed.

The court declined to consider whether trial court should have, sua sponte, ordered a mistrial when the prosecutor argued in rebuttal "if you determine that [defendant] should not reside with an adolescent girl, that’s your moral certainty.

Finally, the court held that the court did not abuse its discretion in not permitting defense counsel to question jurors when one of the jurors said that the verdict was reached when the jurors were tired.

James, dissenting, would have exercised discretion to review the closing-argument issue, and reversed. He decried prosecutorial overcharging, and suggested that overcharging might have led to a compromise verdict in this case, because out of nineteen charges, the jury convicted defendant of the first of each of the three different crimes charged. He described trial counsel's failure to seek an election as "baffling," and rejected the majority's speculation that counsel's failure to seek a mistrial was deliberate.

State v. Chitwood 310 Or App 22 (March 17, 2021) (Lagesen, James, dissenting) (Douglas County, Burge)


Trial court erred by accepting nonunanimous verdict. Reversed.

The Court of Appeals suggested that the trial court erred by imposing a more severe sentence because the defendant exercised his right to trial, but, because the case was remanded for resentencing, the issue was not resolved.

State v. Gassner 310 Or App 38 (March 17, 2021) (Lagesen) (Crook County, Ahern)

DUII - Predicate offenses for felony

Conviction based on 10-year-old guilty plea was a valid predicate, because the plea was accepted less than ten years ago. Affirmed.

Also, the trial court did not err in declining to give a choice-of-evils instruction. While intoxicated, defendant trespassed in someone else's backyard. The homeowner demanded that he leave and threatened him, and defendant got in his truck and drove a few blocks away. Defendant did not establish that driving was his only option.

State v. Heaton 310 Or App 42 (March 17, 2021) (Lagesen) (Douglas County, Simmons)

TRIAL PROCEDURE - Duplicative charges

Defendant was not entitled to JOA based on theory that evidence only supported two offenses rather than four. Affirmed.

State v. Mead 310 Or App 57 (March 17, 2021) (Tookey) (Clackamas County, Wetzel)

EVIDENCE - Prior inconsistent statement

Defendant was entitled to call a witness to testify about the complaining witness's prior inconsistent statement. Reversed.

Defendant wanted to call a police officer who would testify about the complaining witness's statements to the officer that were inconsistent with the witness's testimony. The trial court excluded the police officer's testimony as hearsay, but, the Court of Appeals explained, it was not hearsay and was admissible as impeachment.

State v. Ramirez 310 Or App 62 (March 17, 2021) (James) (Multnomah County, Marshall)


The state failed to prove that probationer consented, rather than acquiesced, to a search of his room. Reversed.

State v. Tennant 310 Or App 70 (March 17, 2021) (James) (Lane County, Carson)

SENTENCING - Mandatory minimum sentences

Seventy-five-month sentence for forcibly touching 14-year-old girl's buttocks would not violate Oregon Constitution, and thus sentencing court erred in failing to impose it. Reversed on state's appeal.

State v. Lara-Vasquez 310 Or App 99 (March 17, 2021) (Aoyagi) (Hood River County, Wolf)

EVIDENCE - Harmfulness

Error in excluding evidence of victim's possible animus toward defendant was harmless. Affirmed.

Defendant was charged with contempt for approaching the complaining witness, who had a restraining order against him. Defendant's proposed cross-examination, about whether the complaining witness believed defendant was having an affair with his wife, was not important to the defendant's theory that any contact was fleeting and inadvertent.

State v. Rashad 310 Or App 112 (March 17, 2021) (Kamins) (Jackson County, Cromwell)

EVIDENCE - Other bad acts

State failed to establish basis to admit evidence of violence against former intimate partner in trial of charges against current intimate partner. Reversed.

State v. Stockton 310 Or App 116 (March 17, 2021) (Brewer) (Jackson County, Barnack)