Oregon Appellate Court, October 20, 2021
Summarized by Rankin Johnson, OCDLA
WITNESSES - False-in-part instruction
DV victim's rambling, inconsistent testimony did not require the false-in-part instruction. Affirmed.
The court explained that inconsistencies in the testimony could have been mistakes, rather than lies.
State v. Gocan 315 Or App 222 (October 20, 2021) (Ortega) (Multnomah County, Bergstrom)
CHILD NEGLECT - Sufficiency
Permitting girlfriend's seven-year-old child to follow her into McDonald's to use the bathroom, and then inadvertently driving away without the child, was not leaving the child 'unattended.' Reversed.
State v. Montgomery 315 Or App 231 (October 20, 2021) (Ortega) (Lincoln County, Sanders)
EVIDENCE - Opinion evidence about reacting to accusation
Police officer's statement about how she would react to being accused of indecent exposure was not admissible, although the statement was made in connection with lawful questioning yielding admissible answers. Reversed.
State v. Carter 315 Or App 246 (October 20, 2021) (DeHoog) (Multnomah County, Bottomly)
SEARCH AND SEIZURE - Arrest pursuant to warrant
State failed to prove the existence of a warrant to arrest defendant. Reversed.
A police officer arrested defendant on the strength of a computer notation that a warrant existed, and discovered evidence on defendant's person. Defendant moved to suppress, arguing that the warrant was not valid. The state offered no evidence about the warrant, and did not argue that the arrest would have been lawful in the absence of a warrant. Accordingly, the state failed to meet its burden of production, and the trial court erred by denying the motion to suppress.
State v. Perrodin 315 Or App 252 (October 20, 2021) (Shorr) (Lane County, Merten)
CONFLICTS OF INTEREST - Judicial conflicts and recusal
In murder case, judge's representation of victim in DUII prosecution six years before, of which judge had no current recollection, did not preclude judge from sitting as finder-of-fact. Affirmed.
State v. Espinal 315 Or App 264 (October 20, 2021) (Per curiam) (Clackamas County, Rastetter and Karabeika)
DELIVERY OF A CONTROLLED SUBSTANCE - Attempted delivery
Possession of 120 "user amounts" of heroin and methamphetamine did not prove delivery. Reversed.
Although the court explained that taking a substantial step toward the crime of DCS but not attempting an actual delivery was the crime of attempted DCS, it vacated the DCS convictions and remanded for resentencing of PCS and unrelated offenses.
State v. Fischer 315 Or App 267 (October 20, 2021) (Per curiam) (Marion County, Abar)