A Book from the Library of Defense

Oregon Appellate Court, May 22, 2019

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by: Rankin Johnson IV • May 26, 2019 • no comments

Summarized by Rankin Johnson, OCDLA

POST-CONVICTION RELIEF - Ineffective assistance of counsel

In assault trial, counsel was ineffective by failing to object to admission of evidence of other abuse; petitioner was prejudiced. Reversed and remanded.

Trial counsel should have moved to strike or sought limiting instruction when DV victim testified that defendant had previously assaulted her and she realized that she was in an abusive relationship. The Court of Appeals rejected argument that claim in post-conviction petition was limited to events occurring on cited transcript page.

Frazier v. State 297 Or App 584 (May 22, 2019) (Egan) (Malheur County, Pratt)

APPEAL AND REVIEW - Scope of proceedings on remand; interpretation of tagline in appellate opinion

On reconsideration, Court of Appeals held that, on remand, trial court should decide whether new trial is warranted after reconsidering evidence ruling.

In prior opinion, Court of Appeals reversed and remanded for improper admission of grooming evidence. On reconsideration, Court of Appeals deleted tagline suggesting that, if the state laid a proper foundation for the evidence, no new trial was necessary. Rather, that decision was within the discretion of the trial court.

State v. Plueard 297 Or App 592 (May 22, 2019) (Hadlock) (Washington County, Upton)

POST-CONVICTION RELIEF - Successive post-conviction claims

Juvenile's successive post-conviction claim based on recent Supreme Court decision could have been raised timely. Affirmed.

Juvenile stipulated to waiver in to adult court in 2009, and unsuccessfully appealed and sought post-conviction relief. In 2016, the Supreme Court decision changed the law regarding such a waiver. The juvenile filed a successive post-conviction petition, arguing that he could not reasonably attack the waiver before 2016, but the Court of Appeals disagreed.

Perez v. Cain 297 Or App 617 (May 22, 2019) (Lagesen) (Malheur County, Landis)

OTHER BAD ACTS-Doctrine of chances

When defendant was accused of damaging property by hitting it with his vehicle, evidence of prior aggressive driving was admissible. Affirmed.

Defendant was accused of deliberately hitting his girlfriend's car with his. He claimed it was an accident. Evidence of prior reckless driving was admitted under the 'doctrine of chances,' which, the court explained, is not character-based evidence.

State v. Skillicorn 297 Or App 663 (May 22, 2019) (James) (Washington County, Knapp)

SEARCH AND SEIZURE - Extension of traffic stop

Trial court's findings do not resolve whether stop was extended by dog-sniff. Reversed and remanded.

State v. Kamph 297 Or App 687 (May 22, 2019) (James) (Coos County, Stone)


In civil-commitment proceeding, trial court erred by denying continuance when petitioner identified an attorney he wanted to retain and said that he had been denied access to a phone to contact the attorney before the hearing. Reversed and remanded.

State v. J.J.S. 297 Or App 707 (May 22, 2019) (Per curiam) (Washington County, Bailey)