A Book from the Library of Defense

Oregon Appellate Court, May 19, 2021

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by: Rankin Johnson • May 21, 2021 • no comments


Summarized by Rankin Johnson, OCDLA

EVIDENCE - Stipulations and relevance

In murder prosecution, evidence connecting defendant to a gang was admissible even though defendant offered to stipulate that he was a member of a gang. Affirmed.

In ruling on defendant's OEC 403 objection, the trial court did not abuse its discretion by deciding that the state's proffered evidence was probative and not cumulative. Defendant's proposed stipulation did not include all the facts the state sought to prove.

State v. Allen 311 Or App 454 (May 19, 2021) (DeVore) (Multnomah County, Hodson)

EVIDENCE - Impeachment

The victim's failure to refer to DHS proceedings in one of two restraining-order petitions did not support cross-examination on the theory that she made a criminal complaint as part of a plan to get custody of the children she had with defendant. Affirmed.

State v. Busch 311 Or App 464 (May 19, 2021) (DeVore) (Marion County, Burton)

THEFT - Value

State failed to prove stolen counterfeit $100 bills had any market value. Reversed.

State v. McClour 311 Or App 473 (May 19, 2021) (DeVore) (Wasco County, Stauffer)

RIGHT TO COUNSEL - Related offenses

Defendant's right to counsel prevented questioning him about one offense when it became apparent that it was connected to a second offense on which defendant was represented. Reversed.

On remand from the Supreme Court. The Court of Appeals distinguished Savinskiy, which approved police questioning of an ongoing, uncharged offense notwithstanding that it was connected to a second offense on which defendant was represented.

State v. Craigen 311 Or App 478 (May 19, 2021) (Lagesen) Umatilla County, West)

DUII - Diversion procedure

Ruling terminating diversion and entering conviction was not reviewable. Affirmed.

The court reviewed and reversed a financial obligation imposed outside of defendant's presence.

State v. Merrill 311 Or App 487 (May 19, 2021) (Lagesen) (Douglas County, Ambrosini)

DEFENDANT'S STATEMENTS - Promises of lenience

Promises by questioning officers to 'help' defendant rendered admissions involuntary. Reversed.

The court observed that the analysis was fact-dependent, and this was a close case, but officers implied that they knew defendant, a non-native English speaker, was guilty and that help, such as parenting classes, was available only to the truthful.

State v. Rodriguez-Aquino 311 Or App 519 (May 19, 2021) (James) (Marion County, Partridge)

SEARCH AND SEIZURE - Probable cause

Methamphetamine pipe in defendant's home did not provide probable cause to arrest for PCS. Reversed and remanded.

The parties disagreed whether police could see residue in the pipe before arresting defendant, and the trial court did not resolve that dispute. The case was remanded for further proceedings on that point.

State v. Shaw 311 Or App 537 (May 19, 2021) (James) (Lane County, McIntyre)

SEARCH AND SEIZURE - Conduct constituting search

Lifting privacy curtain to view defendant in jail bathroom was not a search. Affirmed.

State v. Taplin 311 Or App 542 (May 19, 2021) (Powers) (Multnomah County, Hodson)

TRIAL PROCEDURE - Concurrence instructions

Where there was evidence of injuries to two different body parts, trial court plainly erred by failing to give concurrence instruction. Reversed.

The court also reversed the conviction on another count because the underlying jury verdict was nonunanimous.

State v. Trenary-Brown 311 Or App 579 (May 19, 2021) (Kamins) (Marion County, Tripp)

SEARCH AND SEIZURE - Exigent circumstances

Fourth Amendment permitted warrantless blood draw of DUII and manslaughter suspect. Affirmed.

The court also held that, although deceased victim's estate settled with defendant's insurance and released its claims against defendant in doing so, the deceased victim's spouse had an independent claim unaffected by the insurance settlement. Accordingly, the trial court did not err in awarding restitution to the spouse.

State v. Stephens 311 Or App 588 (May 19, 2021) (Hadlock) (Klamath County, Janney)