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Oregon Appellate Court, September 22, 2021

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by: Rankin Johnson • September 23, 2021 • no comments


Summarized by Rankin Johnson, OCDLA

SENTENCING - Special probation conditions

Special probation conditions were invalid because they were not imposed in open court. Reversed and remanded.

The court also held that a probation condition forbidding 'intimate' relationships was unenforceably vague, and a condition forbidding alcohol use was not supported by the record. Finally, the court reversed convictions based on nonunanimous jury verdicts.

State v. Gaona-Mandujano 314 Or App 654 (September 22, 2021) (Ortega) (Marion County, Leith)

EXPUNCTION - Findings of fact

Trial court could properly review underlying record to determine if criminal mistreatment conviction was an unexpungeable child abuse conviction. Affirmed.

The court also observed that the defendant, as movant, bore the burden of proof, but the indictment, plea petition, and judgment were collectively insufficient to carry it. Defendant declined the trial court's offer to provide more information.

State v. Sylva 314 Or App 661 (September 22, 2021) (Tookey) (Marion County, Klapstein)

JUVENILE DELINQUENCY - Sex-offender reporting

Juvenile court did not err in declining to relieve juvenile from sex-offender reporting at the end of his probation term. Affirmed.

Aokagi, concurring, observed that the statute required the juvenile to prove rehabilitation by clear and convincing evidence, such a high bar that the appellate court would rarely reverse a court's finding that the burden was unmet.

State v. A. R. H. 314 Or App 672 (September 22, 2021) (Tookey, Aoyagi concurring) (Clackamas County, Gilmartin)

POSSESSION - Constructive possession

Evidence was not sufficient to prove defendant possessed drug paraphernalia and residue in the center console of his car. Reversed.

Defendant told police that he had not known about a straw with traces of methamphetamine on it, that his girlfriend had recently bought the car, and that they both used methamphetamine.

Armstrong, dissenting, would have held that the evidence was sufficient to prove that defendant had the right to control, and therefore constructively possessed, the methamphetamine.

State v. Kulick 314 Or App 680 (September 22, 2021) (Tookey, Armstrong dissenting) (Yamhill County, Chapman)

COERCION - Sufficiency

Dragging the victim out of her car did not constitute coercion. Reversed.

The court explained that coercion is using a threat to induce the victim to act. Physically forcing the victim to act is not coercion. The court also reversed an assault conviction based on a nonunanimous jury verdict.

State v. Powe 314 Or App 726 (September 22, 2021) (Aoyagi) (Multnomah County, Bottomly)

SEARCH AND SEIZURE - Scope of traffic stop

There was no basis to deploy a drug dog during a traffic stop. Reversed.

By directing defendant, a passenger, to remain in the car, police also stopped him.

State v. Allen 314 Or App 735 (September 22, 2021) (Powers) (Coos County, Stone)