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Oregon Appellate Court, October 27, 2021

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by: Rankin Johnson • October 29, 2021 • no comments


Summarized by Rankin Johnson, OCDLA

SENTENCING - Judge and jury findings
Importance: 4/5

In Jessica's Law case, separate-criminal-episode finding must be made by the jury. Reversed.

Although both consecutive-sentence findings and the existence of a prior conviction can be decided by the sentencing court, the statute at issue increased the potential maximum sentence, which implicated the Apprendi rule.

The court further found that the error was not harmless, because a jury might have found that multiple rapes against roommates in a single apartment over the course of one evening could have been in furtherance of a single objective.

State v. Thornsberry 315 Or App 287 (October 27, 2021) (Armstrong) (Lane County, Rigmaiden)

RIGHT TO COUNSEL - Admissibility of invocation
Importance: 3/5

Testimony about defendant's invocation of his right to counsel required a mistrial. Reversed.

The court explained that, under the specific facts, the testimony supported an inference that defendant had something to hide, and a curative instruction would have been insufficient.

State v. Schumacher 315 Or App 298 (October 27, 2021) (Armstrong) (Washington County, Grensky)

WITNESSES - Evidence of bias or interest
Importance: 2/5

Defendant was entitled to offer evidence that sex-abuse allegation was fabricated to distract attention from theft victim committed. Reversed.

The court noted that, although defendant described the proffered evidence as relating to 'bias,' it would be more accurate to describe it as 'interest.'

The trial court excluded the evidence as irrelevant, but, the Court of Appeals explained, a reasonable juror might accept defendant's argument.

State v. Hassan 315 Or App 324 (October 27, 2021) (Lagesen) (Umatilla County, Lieuallan)

BURGLARY - Buildings
Importance: 2/5

Jury could properly find that locked metal Conex box, used for storing recyclable cans by a business, was a building for purposes of burglary charge. Affirmed.

The Court of Appeals also held that the trial court did not err by failing to act on defendant's lone statement that he wanted to fire his attorney during a contentious hearing.

J. James would have held that the trial court could have properly delayed ruling on the new-counsel request until the next hearing, and that defendant's failure to repeat the request waived the issue.

State v. Fitzgerald 315 Or App 336 (October 27, 2021) (Lagesen, James concurring) (Harney County, Cramer)

ANIMAL ABUSE - Sufficiency
Importance: 2/5

Evidence that dog yelped while being kicked was sufficient to establish the dog suffered substantial pain. Affirmed.

The court also explained that testimony about the incident established that it was not fleeting or momentary.

The court erred by imposing $1200 in fines, due in 30 days, while also imposing a prison term but not considering the defendant's ability to pay.

State v. Hackett 315 Or App 360 (October 27, 2021) (Tookey) (Coos County, Stone)

SENTENCING - Special probation conditions
Importance: 2/5

Sentencing court erred in imposing a probation condition that it did not announce in open court. Reversed.

The court rejected the state's argument that the condition was mooted by a subsequent judgment finding a probation violation and continuing probation, and, in doing so, overruled a the case on which the state relied.

State v. Bates 315 Or App 402 (October 27, 2021) (DeHoog) (Washington County, Erwin)

SENTENCING - Enhancement facts
Importance: 1/5

Sentencing court erred by imposing upward-departure sentence based in part on enhancement fact found by nonunanimous verdict. Reversed.

State v. Huynh 315 Or App 456 (October 27, 2021) (Aoyagi) (Marion County, James)