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Oregon Appellate Court, March 31, 2021

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by: Rankin Johnson • April 1, 2021 • no comments


Summarized by Rankin Johnson, OCDLA

EVIDENCE - In camera review

Trial court did not err in failing to order disclosure after in camera review. Affirmed.

The Court of Appeals conducted an in camera review and concluded that the trial court did not err. It reversed and remanded the convictions based on nonunanimous jury verdicts.

State v. Hernandez-Sanchez 310 Or App 231 (March 31, 2021) (Egan) (Washington County, Wipper)

SEARCH AND SEIZURE - Material witnesses

Police could not lawfully detain defendant while seeking witness to murder that took place several days earlier and when a suspect was in custody. Reversed and remanded.

Police were looking for a specific person, and detained the occupants of a car he reportedly used. The court explained that the need to find the witness was no reason to detain defendant, and the material-witness exception to the warrant requirement did not apply.

State v. Lira 310 Or App 237 (March 31, 2021) (Armstrong) (Jackson County, Greif)

EVIDENCE - Scientific and expert evidence

Trial court erred by admitting scientific evidence as non-scientific expert evidence. Reversed and remanded.

In a DV prosecution, the state sought to offer expert testimony about counterintuitive victim behavior. The court declined to admit it as scientific evidence, but admitted it as expert evidence. Both sides appealed. The Court of Appeals agreed that the state had not laid an adequate foundation to admit the evidence as scientific, and held that, regardless of the state's position, it was not admissible as nonscientific evidence.

State v. Bolton 310 Or App 255 (March 31, 2021) (DeVore) (Marion County, Armstrong)

EVIDENCE - Accomplice-witnesses

Trial court's error in failing to instruct jury that indicted witness was an accomplice whose testimony should be viewed with distrust was harmless. Affirmed.

State v. Parkerson 310 Or App 271 (March 31, 2021) (Lagesen) (Klamath County, Hoppe)


A prosecutorial office's refusal to remove a police officer from a Brady list is not subject to challenge via writ of review. Affirmed.

Lane v. Marion County District Attorney's Office 310 Or App 296 (March 31, 2021) (Tookey) (Marion County, Donohue)


Post-conviction court erred by declining to conduct 'Church' hearing and rule on motion. Reversed and remanded.

Lobo v. Cain 310 Or App 314 (March 31, 2021) (James) (Malheur County, Pratt)

SENTENCING - Earned-time credit

When a person is serving two concurrent sentences, ineligibility for earned-time credit on one does not affect the earned-time calculation on the other. Affirmed on state's appeal from judgment issuing writ of habeas corpus.

[https://link.ocdla.org/soll/A173284 Samson v. Brown 310 Or App 319 (March 31, 2021) (Aoyagi) (Tillamook County, Trevino)

SEARCH AND SEIZURE - Particularity

Warrant permitting search of cell phone for any evidence of the offense violated particularity requirement. Reversed and remanded.

The court explained that a search warrant for an electronic device should be limited by time or by the information sought, and that the plain-view doctrine did not render the evidence admissible. Judge Kistler would have found that the warrant was sufficiently particular in some respects, but that the affidavit did not establish probable cause.

The trial court also erred by giving jury instructions regarding whether the victim's use of force was lawful. Because self-defense is based on the defendant's perception, the actual lawfulness of the victim's actions is irrelevant.

State v. Bock 310 Or App 329 (March 31, 2021) (Kamins, Kistler concurring) (Washington County, Butterfield)