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Oregon Appellate Court, May 26, 2021

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by: Rankin Johnson • May 28, 2021 • no comments

 

Summarized by Rankin Johnson, OCDLA

DEFENDANT'S STATEMENTS - Statements made in connection with supervision

PPS officers should have provided Miranda warnings before interrogating defendant. Reversed.

The court rejected the states argument that, in seeking a cell phone that defendant's PPS conditions prevented her from having, the PPS officer was investigating only PPS violations, for which Miranda warnings are not required, rather than crimes. The PPS officer had reason to believe that child pornography was on the phone. Because the interrogation was unlawful, it tainted the consent for a subsequent search.

The court also held that a search warrant was tainted by evidence obtained during an unlawful search.

State v. Yaeger 311 Or App 626 (May 26, 2021) (Armstrong) (Deschutes County, Adler)

PRE-TRIAL PROCEEDINGS - Pre-trial motions

Motions, other than motions made at trial, must be in writing. Affirmed.

In a civil case, plaintiff obtained a default judgment. Defendant moved to set it aside, and offered documents in support. At the hearing on the motion, plaintiff orally objected to the admission of unsworn statements included in defendant's exhibits. The Court of Appeals held that the oral motion did not preserve the issue.

Aoyagi, concurring, disagreed that motions must be in writing or that the majority so held, but nonetheless believed the issue was unpreserved.

Tookey, dissenting, believed the issue was preserved and warranted reversal.

Much v. Doe 311 Or App 652 (May 26, 2021) (Armstrong, Aoyagi concurring, Tookey dissenting) (Yamhill County, Stone)

ASSAULT - Substantial pain

Infliction of two black eyes and a bloody nose caused substantial pain, even where the victim did not remember details as a retult of drug use. Affirmed.

State v. Miller 311 Or App 680 (May 26, 2021) (Ortega) (Washington County, Hunsaker)

APPELLATE PROCEDURE - Reviewability

Revocation of deferred-sentencing agreement is not reviewable. Affirmed.

State v. Jones 311 Or App 685 (May 26, 2021) (Tookey) (Yamhill County, Wiles)

DRUG OFFENSES - Mere presence

Defendant's presence in a hotel room with a drug dealer, combined with possession of $2,500 in cash and a small amount of methamphetamine and a pipe in a chair where she sat, was not sufficient to prove delivery of a controlled substance. Reversed.

State v. Vinson 311 Or App 690 (May 26, 2021) (Tookey) (Lincoln County, Bachart)

RESTITUTION - Proof

A detailed auto-repair estimate is sufficient to support a restitution award. Affirmed.

State v. Tharp 311 Or App 715 (May 26, 2021) (Shorr) (Washington County, Fun)

SEARCH AND SEIZURE - Scope of traffic stop

Trial court plainly erred by failing to suppress the fruits of a dog-sniff of a passenger during a traffic stop. Reversed.

State v. McItyre 311 Or App 726 (May 26, 2021) (Aoyagi) (Washington County, Wipper)

DUII - Implied consent

Updated language for requesting breath test did not invalidate reading of statutory implied-consent warning. DMV's order of suspension affirmed.

Although the implied-consent warning must be read substantially in the form prescribed by statute, the final question, such as "will you take a breath test?" or "will you provide physical cooperation by providing a breath sample?" need not be in a prescribed form.

Angeney v. DMV 311 Or App 732 (May 26, 2021) (Aoyagi) (Lincoln County, Darling)

ASSAULT - Injury

Evidence that defendant pushed a child, and the child struck a wall and said "ow," was not sufficient to prove physical injury to the child. Reversed.

The court declined to direct the trial court to enter a judgment of conviction for an attempted assault, because the record did not demonstrate that defendant had the requisite mental state.

State v. Modrzejewski 311 Or App 739 (May 26, 2021) (Powers) (Lane County, Conover)