Oregon Appellate Court, May 12, 2021
Summarized by Rankin Johnson, OCDLA
EVIDENCE - Scientific and expert evidence
Doctor's testimony about Abusive Head Trauma diagnosis was properly admitted as scientific evidence. Affirmed.
Defendant unsuccessfully argued that the diagnosis was scientifically unreliable because it is subjective, and also that it was unfairly prejudicial. Defendant also unsuccessfully argued that he was only guilty of assault if he intended to cause injury; the Court of Appeals held that the question was controlled by Supreme Court caselaw.
State v. Allen 311 Or App 271 (May 12, 2021) (Ortega) (Clackamas County, Norby)
EVIDENCE - Other bad acts
Prior sexual assault was not admissible to show sexual motive in new murder charge. Reversed.
The court explained that having a sexual motive at one time, and having a similar motive at another time, does not establish that the two motives are related or cross-admissible. The two similar motives are only connected by an improper propensity inference.
State v. Tinoco-Camarena 311 Or App 295 (May 12, 2021) (DeVore) (Washington County, Thompson)
EVIDENCE - Other bad acts
Prior offenses against victim were not admissible to show hostile motive against victim. Reversed.
The court explained that there was no logical connection between the prior acts and the charged act. But, the court held, prior sex offenses against the victim were admissible to rebut a consent defense to current sex-crime charges.
The court also held that a pretext phone call was not admissible under the statements-regarding-abuse hearsay exception, because the declarant was not within the scope of the rule.
State v. Phillips 311 Or App 309 (May 12, 2021) (DeVore) (Tillamook County, Trevino)
RIGHT TO JURY TRIAL - Nonunanimous verdicts
Conviction based on nonunanimous verdict was invalid. Reversed.
Defendant was convicted of two counts of promoting prostitution, one by nonunanimous verdict. In remanding, the court noted that, if defendant was re-convicted, the two counts might merge.
State v. Damper 311 Or App 322 (May 12, 2021) (Tookey) (Washington County, Butterfield)
DUII - Implied consent
Police officer's addendum to Implied Consent warning that he would seek a warrant invalidated warning and subsequent breath test. Reversed.
The court also held that the Rights and Consequences advice could come after the driver's initial refusal to take the test.
Murdoch v. DMV 311 Or App 386 (May 12, 2021) (James) (Columbia County, Callahan)
CLOSING ARGUMENT - Facts not in evidence
Trial counsel was not ineffective in failing to object to prosecutor's inaccurate statement that defendant had lots of domestic violence convictions. Affirmed.
Although the argument was improper, the judge instructed the jury that counsel's arguments were not evidence, and would, at most, have repeated the instruction in response to an objection, so defendant was not prejudiced.
Reed v. Kelly 311 Or App 397 (May 12, 2021) (Aoyagi) (Marion County, Penn)
FAPA, STALKING, AND RESTRAINING ORDERS - SAPO orders
Petitioner was entitled to a Sexual Abuse Prevention Order based on a showing that respondent raped her. Affirmed.
The court rejected respondent's argument that the parties were "family or household members" because they were in a "sexually intimate relationship" based on a short period of consensual kissing before the rape. The court further explained that a single brutal assault in petitioner's home, and a stated desire to see her again, supported issuance of a SAPO order.
E.H. v. Byrne 311 Or App 415 (May 12, 2021) (Aoyagi) (Marion County, Strauch)
SUPERVISION - Time to begin probation-violation proceedings
Where a single probation violation was alleged before the end of the probation period, the court could not adjudicate other violations added after the end of the probation period. Reversed.
Powers, dissenting, would have held that, while there was a valid probation-violation allegation, the sentencing court's jurisdiction extended and other allegations, about events during the probation period, could be added.
State v. Berglund 311 Or App 424 (May 12, 2021) (Sercombe, Powers dissenting) (Multnomah County, Bergstrom)