A Book from the Library of Defense

Oregon Appellate Court, May 5, 2021

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by: Rankin Johnson • May 7, 2021 • no comments


Summarized by Rankin Johnson, OCDLA

DEFENDANT'S STATEMENTS - Conduct constituting interrogation

Asking defendant to take FSTs after he invoked his Miranda rights was unlawful. Reversed.

The court acknowledged tension between various Supreme Court decisions, but concluded that, because a refusal to take field sobriety tests is incriminating, a request to take the test is reasonably likely to produce an incriminating response which will be admissible at trial, and therefore is interrogation. Hadlock, concurring, disagreed that admissibility was important in determining what constituted interrogation.

State v. Shevyakov 311 Or App 82 (May 5, 2021) (Lagesen, Hadlock concurring) (Multnomah County, Souede)


Defendant's confession to some offenses was uncorroborated as to some counts. Reversed.

Defendant gave a detailed confession as to many offenses. The victim gave a short, simple statement. In deciding that the victim's statement corroborated a total of six offenses, the court compared the details of the victim's and defendant's statements, and emphasized that the threshold for corroboration was low.

The court also reversed convictions based on nonunanimous verdicts.

State v. Johnson 311 Or App 111 (May 5, 2021) (DeHoog) (Multnomah County, Dailey)

SEARCH AND SEIZURE - Dealer plates

The use of a single license plate, if it is a dealer plate, does not provide probable cause to stop. Reversed.

The court further held that defendant did not invite the error by erroneously arguing in the trial court that reasonable suspicion, rather than probable cause, was required to stop.

State v. Hughes 311 Or App 123 (May 5, 2021) (DeHoog) (Multnomah County, Roberts)

EVIDENCE - Authentication of social-media posts

State offered sufficient evidence to prove that Facebook account was defendant's and he made the statements at issue. Reversed on state's appeal.

An undercover officer corresponded with a Facebook account bearing defendant's name, set up a drug buy, and observed corroborative facts connecting defendant to the Facebook messages. Defendant argued that the evidence was inauthentic and hearsay, the trial court agreed, and the state appealed.

The Court of Appeals considered the ruling in two steps, authentication and hearsay. A ruling on authentication is one of 'conditional relevance,' rather than 'gatekeeping.' Therefore, once the proponent offered sufficient evidence to support a finding that the evidence was admissible, the evidence is admitted subject to the jury's finding on foundational facts. The state had done so in this case, even though the trial judge was unpersuaded.

Although a ruling on hearsay is usually a 'gatekeeping' ruling (i.e., the trial court decides the issue and admits or excludes the evidence rather than leaving it to the jury) the court held that the identity of a hearsay declarant is also a matter for the jury. Thus, putative hearsay is conditionally relevant if the objection to the evidence is based solely on the declarant's identity.

The court explained that special jury instructions or verdict forms should be used to guide the jury's decision-making on conditionally relevant evidence.

State v. Acosta 311 Or App 136 (May 5, 2021) (James) (Douglas County, Simmons)

SEARCH AND SEIZURE - Scope of traffic stop

Stopping officer exceeded lawful scope of traffic stop by calling for drug dog before speaking to defendant. Reversed.

State v. Escudero 311 Or App 171 (May 5, 2021) (Powers) (Washington County, Garcia)

SENTENCING - Attorney's fees

Trial court plainly erred by finding that, because defendant's mother had posted his $3,000 bail, he was able to pay $600 in court-appointed attorney fees. Reversed.

The court also held that the mental state for Attempt to Elude is 'knowingly.'

State v. Scott 311 Or App 175 (May 5, 2021) (Powers) (Tillamook County, Hill)


Walking away from a police officer issuing an order is not 'passive resistance.' Affirmed.

James, concurring, described the defendant's repeated encounters with the police for petty offenses. He observed that this offense arose when a Tri-Met fare inspector asked for proof of payment, and defendant, a Black woman, walked away. She spent six months in custody and at OSH prior to trial, and the court imposed a sentence of discharge. James also observed that the statute is unclear, subject to the whims of the police, and "provides an open door for implicit bias."

State v. Bledsoe 311 Or App 183 (May 5, 2021) (Kamins, James concurring) (Washington County, Erwin)

EVIDENCE - Victim's other-bad-acts

Error in excluding evidence of victim's other-bad-acts was harmless. Affirmed.

Defendant was accused of menacing after a violent altercation with his girlfriend. He sought to offer evidence that she was often the aggressor in their fights, but the trial court, sitting as finder of fact, was apparently convinced of that history even without the additional evidence.

State v. Grenier 311 Or App 207 (May 5, 2021) (Kistler) (Marion County, James)