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Oregon Appellate Court, October 30, 2019

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by: Rankin Johnson IV • November 5, 2019 • no comments


Summarized by Rankin Johnson, OCDLA


Defendant's written jury trial waiver did not apply when an amended information dropped the initial charge and added others. Reversed.

The court explained that, although the error was unpreserved, the court was obligated to review and correct an error relating to invalid waiver of jury trial.

State v. Smith 300 Or App 272 (October 30, 2019) (Hadlock) (Marion County, Burton)

SELF-INCRIMINATION - Statements in connection with breath-test refusal

Statements made in connection with breath-test refusal were not admissible. Reversed.

The state had failed to prove that the request to take the test was a request for physical cooperation, rather than a request for consent to search. The court declined to reach a second issue, regarding the admissibility of a photocopy of a certified judgment.

State v. Vandruff 300 Or App 281 (October 30, 2019) (Hadlock) (Multnomah County, Ramras)

SEARCH AND SEIZURE - Probable cause

Defendant's false denial that he had seen a wanted person was not the offense of hindering prosecution, and therefore did not provide probable cause to arrest. Reversed.

State v. Carpenter 300 Or App 287 (October 30, 2019) (DeVore) (Curry County, Margolis)

SEARCH AND SEIZURE - Probable cause

Lack of a windshield-mounted mirror was not probable cause to stop. Reversed and remanded.

The Court of Appeals explained that any mirror providing a view for 200 feet behind the vehicle was sufficient, and that the police officer's subjective, incorrect belief that lack of a windshield-mounted mirror was an offense was not a basis to stop. A remand for further proceedings was necessary because the trial court did not rule on the state's other proffered justifications for the stop.

State v. Lawson 300 Or App 282 (October 30, 2019) (DeVore) (Washington County, Roberts)


Indictment need not specify each victim of reckless endangerment. Affirmed.

While intoxicated, defendant caused a car accident. He was charged with one count of reckless endangerment for each person in the accident, but the indictment did not name any of the victims. Defendant pleaded guilty to each count without limitation. In affirming, the Court of Appeals explained that the record did not establish whether each count related to a different person.

State v. Ham 300 Or App 304 (October 30, 2019) (Lagesen) (Multnomah County, Rees)

CIVIL COMMITMENT - Sufficiency of the evidence

Evidence permitted inference that mental illness and complicated medical problems led to a nonspeculative risk of a life-threatening infection. Affirmed.

Appellant had a depressive disorder and declining mental functioning, suffered from a long list of serious physical ailments, and had no place to stay but a hotel. The court noted that it was a close case and rejected the state's concession.

State v. C.K. 300 Or App 313 (October 30, 2019) (Lagesen) (Multnomah County, Smith-Herranz)

APPEAL AND REVIEW - Reviewability of plea agreements

Defendant's 28-month probation revocation sentence, imposed pursuant to a plea agreement, was not reviewable, notwithstanding defendant's argument that the sentence exceeded the statutory maximum. Affirmed.

State v. Davis-McCoy 300 Or App 326 (October 30, 2019) (Lagesen) (Jackson County, Greif)

POST-CONVICTION RELIEF - Inadequate assistance of appellate counsel

Appellate counsel was not ineffective for failing to argue that evidence infecting convictions against one victim also affected convictions against another victim. Affirmed.

Petitioner was charged with sex offenses against two victims. Convictions as to one victim were based in part on a diagnosis of sexual abuse and were reversed on appeal for that reason. Appellate counsel did not argue that the error affected the other convictions, and they were affirmed. In post-conviction court, petitioner did not offer evidence from appellate counsel about the reason for counsel's actions, and the Court of Appeals was not convinced that no competent appellate counsel could have made the choices counsel did.

Evans v. Nooth 300 Or App 331 (October 30, 2019) (James) (Malheur County, Pratt)

FAILURE TO APPEAR - Source of obligation to appear

Release agreement did not require defendant to appear personally at pretrial conference. Reversed.

Although the release agreement required defendant to appear, it did not specify whether that appearance could be through counsel. Because law permits appearance through counsel, the release agreement did not clearly require otherwise.

Lagesen, concurring, believed that the rule of lenity required the majority's interpretation. She also rejected the dissent's argument that SLRs could be used to interpret the agreement.

DeVore, dissenting, would have held that, in saying "I, [defendant's name] promise to appear," the agreement expressly required personal appearance. The dissent read other parts of that document, other documents, and SLRs, to support that conclusion.

State v. Lobue 300 Or App 340 (October 30, 2019) (James, Lagesen concurring, DeVore dissenting) (Lane County, Zennaché)


Trial court plainly erred by failing to merge sexual-abuse convictions. Reversed and remanded.

State v. Wilkerson 300 Or App 387 (October 30, 2019) (Per curiam) (Multnomah County, Bergstrom)

SENTENCING - Witness fees

Trial court plainly erred by failing to consider defendant's ability to pay witness fees. Reversed and remanded.

State v. Manning 300 Or App 390 (October 30, 2019) (Per curiam) (Washington County, Wipper)

JURY INSTRUCTIONS - Knowledge that weapon is dangerous

Trial court erred in failing to instruct jury that defendant had to know weapon was dangerous. Reversed and remanded.

State v. Higginbotham 300 Or App 395 (October 30, 2019) (Per curiam) (Tillamook County, Hill)