A Book from the Library of Defense

Oregon Appellate Court, May 6 2020

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by: Rankin Johnson • May 11, 2020 • no comments


Summarized by Rankin Johnson, OCDLA

JURY INSTRUCTIONS - Concurrence instructions

Trial court plainly erred in failing to instruct jury that jurors voting to convict had to agree whether defendant acted as a principal or an accomplice. Reversed.

The court rejected the state's argument that, under the facts of the case, any error was harmless. The court also rejected defendant's argument that he was entitled to an instruction that he had been negligent with respect to the value of stolen property.

State v. Stowell 304 Or App 1 (May 6, 2020) (Armstrong) (Multnomah County, James)

SENTENCING - Restitution

Although defendant pleaded guilty to vehicle offense on a specific day, restitution was not limited to damage to the vehicle occurring on that day.

State v. Lobue 304 Or App 13 (May 6, 2020) (Armstrong) (Lane County, Zennache)

EVIDENCE - Witness credibility

In sex-offense prosecution, credibility of five-year-old victim was jury question. Affirmed.

Defendant moved in limine to exclude testimony and out-of-court statements. When the court denied the motion, he conditionally pleaded guilty.

State v. Rhamy 304 Or App 28 (May 6, 2020) (Lagesen) (Linn County, Navotny)

CHARGING DOCUMENTS - Traffic citations

Traffic citation was defective because citing officer's name did not appear on it, but defect was one of form and did not require dismissal. Affirmed.

State v. Walker 304 Or App 33 (May 6, 2020) (Lagesen) (Douglas County, Ambrosinsi)

THEFT - Sufficiency of the evidence

Claiming ownership of stolen tools was 'withholding;' a valid theory of theft. Affirmed.

Because defendant continued to claim ownership and did not offer to return the tools after being told they belonged to the victim, the trial court did not err by denying a motion for judgment of acquittal.

The court also held that a Washington burglary was a 'comparable offense' for purposes of sentencing.

State v. Clifton 304 Or App 39 (May 6, 2020) (Lagesen) (Polk County, Avera)


Trial court erred by refusing jury waiver on the grounds that other counts would still go to the jury. Reversed and remanded.

The Court of Appeals remanded with direction that the trial court consider whether to accept the waiver, considering proper factors. The Court of Appeals also held that the trial court erred by counting a Washington conviction in calculating criminal history.

State v. Altamirano-Juarez 304 Or App 47 (May 6, 2020) (Tookey) (Marion County, Bennett)

PRE-TRIAL PROCEDURE - Forfeiture of animals

Defendant was not entitled to a jury trial before his animals were forfeited. Affirmed.

Defendant's animals were impounded before his criminal trial for animal abuse. Because he did not pay a $75,000 bond for the cost of their care, they were ordered forfeit. In holding that he was not entitled to a jury trial, the Court of Appeals held that a claim for the cost of care by an animal care agency was not a claim that historically would have been tried to a jury. The majority compared it to a lien forfeiture or foreclosure, rather than a true forfeiture, and concluded that defendant had no right to a jury trial.

Shorr, dissenting, believed that it was a true forfeiture and the defendant was entitled to a jury trial.

State/Klamath County v. Hershey 304 Or App 56 (May 6, 2020) (Tookey, Shorr dissenting) (Klamath County, Janney)

TRIAL PROCEDURE - Continuances and scheduling

Trial court erred in setting trial for the following day for a pro-se defendant who was in custody and unable to obtain her file prior to trial. Reversed and remanded.

The matter had been pending for a year at the time of trial, with numerous failures to appear. The defendant was arrested upon appearing for court. At trial, defendant attacked the chain of custody for the drug evidence at issue, and jury questions indicate that the jury was troubled by that issue. The Court of Appeals observed that a one-day continuance for the defendant to obtain her file might have been sufficient.

State v. Johnson 304 Or App 78 (May 6, 2020) (Tookey) (Umatilla County, Lieuallen)