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Oregon Appellate Court, March 3, 2021

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by: Rankin Johnson • March 30, 2021 • no comments


Summarized by Rankin Johnson, OCDLA


Cutting a safe open after it was taken from the owner was not theft by taking. Reversed and remanded.

Defendant was charged with, inter alia, aggravated theft, which could have been theft by taking or theft by receiving. In denying defendant's MJOA and his related jury-instruction-like argument as to one theory of aggravated theft, the trial court erred even though defendant was potentially guilty under other theories.

State v. Zimmerman 309 Or App 447 (March 3, 2021) (Armstrong) (Jefferson County, Hillman)

CIVIL COMMITMENT - Service of complaint

in civil commitment proceeding, failure to serve citation until beginning of hearing was not plain error. Affirmed.

State v. K.R.B. 309 Or App 455 (March 3, 2021) (Armstrong) (Lane County, Merton)

EVIDENCE - Other bad acts

Evidence of prior sexual interest in, and sexual abuse of, prepubescent girls was not admissible to prove absence of mistake and intent in trial for sexual abuse of prepubescent girl. Reversed.

The court held that some, but not all, of the challenged evidence was admissible propensity evidence subject to the trial court's discretion.

State v. Terry 309 Or App 459 (March 3, 2021) (Lagesen) (Marion County, Armstrong)

EVIDENCE - Identity of defendant

The state is not obligated to prove that the person sitting at counsel table committed the offense. Affirmed.

The court explained that the state only needs to prove that the offense was committed by the person named in the indictment. The evidence was sufficient for that purpose.

State v. Morgan 309 Or App 468 (March 3, 2021) (Lagesen) (Marion County, Leith)

FIREARM OFFENSES - Right to bear arms

Statute prohibiting possession of firearms by felons is not facially invalid. Affirmed.

State v. Shelnutt 309 Or App 474 (March 3, 2021) (Lagesen) (Multnomah County, Rees)

SEARCH AND SEIZURE - Reasonable suspicion

Odor of marijuana and nervous demeanor in vehicle with out-of-state plates and no visible luggage was not sufficient to extend traffic stop. Reversed.

State v. Arivett 309 Or App 480 (March 3, 2021) (Tookey) (Lake County, Nichols)

SENTENCING - Out-of-state convictions

Georgia offense of aggravated assault does not correspond to unlawful use of a weapon, menacing, or first-degree assault. Reversed.

There were multiple offenses at issue some matching Oregon offenses and some not. Tookey, specially concurring, would have remanded because the sentencing court failed to explain its reasoning.

State v. Shields 309 Or App 516 (March 3, 2021) (Aoyagi, Tookey specially concurring) (Jackson County, Hoppe)

EVIDENCE - Other bad acts

Evidence that defendant attempted to commit sodomy against the victim was not admissible at sexual-abuse trial. Reversed.

State v. Deshaw 309 Or App 535 (March 3, 2021) (Aoyagi) (Marion County, James)


Although appellant, who had schizoaffective disorder and a heart condition, did not reliably take his heart medication, the state failed to prove that the resulting risk warranted commitment. Reversed.

State v. R.L.M. 309 Or App 545 (March 3, 2021) (Aoyagi) (Lane County, McIntyre)

SENTENCING - Concurrent and consecutive sentences

Burglary, for breaking into the wrong house with intent to commit theft, and robbery, for robbing the person who was actually there, could be sentenced consecutively. Affirmed.

State v. Russell 309 Or App 554 (March 3, 2021) (Mooney) (Washington County, Wipper)

RIGHT TO COUNSEL - Proceedings on remand

Remand for error in denying defendant's request to proceed pro-se required new trial, not merely re-evaluation of defendant's request. Reversed.

State v. Muhammad 309 Or App 593 (March 3, 2021) (Per curiam) (Washington County, Erwin)