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Oregon Appellate Court, November 27, 2019

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by: Rankin Johnson IV • December 6, 2019 • no comments


Summarized by Rankin Johnson, OCDLA

CLOSING ARGUMENT - Counsel's opinions and plain error

Trial court did not plainly err by failing to declare mistrial during closing argument, when the prosecutor expressed a personal opinion about witnesses' credibility. Affirmed.

State v. McCurry 300 Or App 666 (November 27, 2019) (Armstrong) (Washington County, Garcia)

JOINDER - Offenses of the same or similar character

Sexual offenses committed against a child and unrelated possession of child pornography are not 'of the same or similar character' and thus should not be alleged in a single indictment. Reversed and remanded.

The Court of Appeals adopted an approach used by the First and Ninth Circuits, considering a variety of factors including the temporal proximity of the offenses and the potential of evidentary overlap. The court rejected the state's proposed approach, that sexual crimes against children were necessarily of the same or similar character.

State v. Garrett 300 Or App 671 (November 27, 2019) (Tookey) (Lane County, Conover)

SEARCH AND SEIZURE - Mere conversation

Police did not stop defendant by approaching him, using flashing lights, to ask why he was pushing a shopping cart in the road and what was in his pockets. Affirmed.

State v. Kuehne 300 Or App 698 (November 27, 2019) (Tookey) (Coos County, Stone)


Admission of defendant's statement "I shot the guy," made while under arrest and in response to question "what's your involvement here" at the scene of a shooting was harmless. Affirmed.

Defendant shot and killed his supervisor six days after a work dispute, and raised EED as a defense. He had made numerous statements to co-workers about his intent to kill the victim, got rid of his dogs beforehand and took a loaded gun with him when he took a taxi to work.

The court also ruled that the police officer's question fell within the federal 'public safety' exception.

State v. Forsdhee 300 Or App 739 (November 27, 2019) (Tookey) (Klamath County, Bunch)

SEARCH AND SEIZURE - Constructive possession

Police lacked probable cause that defendant constructively possessed drugs in a vehicle in which she was a passenger. Reversed and remanded.

Police stopped a rented truck for a minor traffic infraction, suspecting drug offenses. Defendant, in the passenger seat, provided a fake name and date of birth and left. When police thereafter discovered drugs and paraphernalia in the truck, they arrested defendant. The evidence did not establish that defendant had any connection to the drugs.

State v. Sanchez-Anderson 300 Or App 767 (November 27, 2019) (DeHoog) (Washington County, Butterfield)

RIGHT TO COUNSEL - Self-representation

Trial court erred by summarily denying defendant's request to represent himself mid-trial. Reversed and remanded.

The court declined to consider the error as 'structural' error not subject to harmless-error analysis, but held the error was harmful.

State v. Martineau 300 Or App 784 (November 27, 2019) (Shorr) (Washington County, Roberts)

SEARCH AND SEIZURE - Jail inventory searches

Jail deputies followed jail policy in searching defendant. Affirmed.

The court declined to consider defendant's unpreserved attacks on the constitutionality of the inventory policy.

State v. Hewitt 300 Or App 792 (November 27, 2019) (Shorr) (Malheur County, Hung)

SENTENCING - Right to be heard

Defendant was entitled to speak personally and through counsel at sentencing. Reversed and remanded.

State v. Montano 300 Or App 812 (November 27, 2019) (Per curiam) (Washington County, Butterfield)

GBI - Consecutive commitment terms

Trial court erred by imposing consecutive terms to OSH after defendant repeatedly drove his car into another vehicle during a schizoaffective episode. Reversed and remanded.

State v. Curran 300 Or App 814 (November 27, 2019) (Per curiam) (Deschutes County, Miller)


Rape in the third degree and sexual abuse in the second degree merge. Reversed and remanded.

State v. D.M.B. 300 Or App 817 (November 27, 2019) (Per curiam) (Clackamas County, Gilmartin)

RESTITUTION - Expenses on behalf of minor child

Expenses for CARES evaluation for unemancipated minor child were expended for parent, not child, and thus were not proper basis for restitution. Reversed and remanded.

State v. Allida 300 Or App 819 (November 27, 2019) (Per curiam) (Washington County, Simms)