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Oregon Appellate Court, March 18, 2020

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by: Rankin Johnson IV • March 26, 2020 • no comments

 

Summarized by Rankin Johnson, OCDLA

APPELLATE PROCEDURE - Harmlessness

Trial court erred by permitting prosecutor to argue that stains on defendant's gloves were blood, but error was harmless. Affirmed.

The court also held that any error in failing to give the witness-false-in-part instruction was harmless.

Defendant was accused of robbery. The state's case consisted of the testimony of the victim and another witness, both of whom gave inconsistent statements, and the putative stolen property and stained gloves that defendant possessed at the time of his arrest.

James, dissenting, would have held that the prosecutor's unsupported statement in rebuttal that the gloves were 'bloody' was harmful.

State v. Camirand 303 Or App 1 (March 18, 2020) (DeVore, James dissenting) (Lincoln County, Branford)

UUV - Elements

Living in a car with permission of the owner, but driving it contrary to that permission is not unlawful use of a vehicle. Reversed.

State v. Fuller 303 Or App 47 (March 18, 2020) (Lagesen) (Yamhill County, Wiles)

SENTENCING - Merger

Record did not establish whether multiple offenses should merge. Reversed and remanded.

Defendant was charged with multiple counts of rape and sexual abuse committed over a course of hours and in a single place. Defendant argued that all the rape charges should merge into a single conviction, and so should all the sexual abuse charges. The court made findings precluding merger as to some offenses and failed to make them as to others, and declined to merge any of the offenses. The Court of Appeals remanded for resentencing.

State v. Ortiz-Rico 303 Or App 78 (March 18, 2020) (DeHoog) (Washington County, Wipper)

DISORDERLY CONDUCT - Elements

Shouting profanity, threatening police officers, physically pushing a police officer's hand away, and failing to cooperate with police orders constituted disorderly conduct. Affirmed.

State v. Davis 303 Or App 90 (March 18, 2020) (James) (Multnomah County, Kantor)

SENTENCING - Merger

Strangulation and assault in the fourth degree do not merge. Affirmed.

The court further noted that the defendant's failure to raise his argument was not excused by controlling appellate precedent against it, because, if defendant had raised the argument, the state could have avoided the issue by presenting a different theory to the jury.

State v. Mailman 303 Or App 101 (March 18, 2020) (James) (Union County, West)

SENTENCING - Merger

Strangulation and assault in the fourth degree do not merge. Affirmed.

The court further noted that the defendant's failure to raise his argument was excused by controlling appellate precedent against it, because any argument in the trial court would have been futile and would not have affected the record or the proceedings.

State v. Merrill 303 Or App 107 (March 18, 2020) (James) (Multnomah County, Walker)

POST-CONVICTION - Immigration consequences

Consequences of second DUII conviction were not "clear and easily ascertainable" such that criminal defense counsel's vague immigration advice was ineffective. Affirmed.

Madrigal-Estrella v. State 303 Or App 124 (March 18, 2020) (Aoyagi) (Washington County, Bergman)

SEARCH AND SEIZURE - Probable cause

State's appeal. Statement in search warrant application that downloaded computer files were "child pornography" was sufficient, even without further information or attached copies. Reversed and remanded.

Police used BitTorrent to download files from defendant's computer. In seeking a search warrant, they explained that BitTorrent permits sharing of files between computers, that defendant's computer shared files with other users, and that they had downloaded child pornography from defendant's computer. A police detective described the files as child pornography, and the file names were suggestive of child pornography, but the files were not further described and were not attached to the search warrant application. Nonetheless, the information in the affidavit was sufficient.

State v. McNutt 303 Or App 142 (March 18, 2020) (Kistler) (Washington County, Erwin)