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Oregon Appellate Court--August 15, 2018

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by: Rankin Johnson IV • August 31, 2018 • no comments

Summarized by Rankin Johnson, OCDLA

SENTENCING - Probation violation

Defendant violated probation by attending evaluation three months after deadline and failing to complete it. Affirmed.

State v. Stroud 293 Or App 314 (August 15, 2018) (Ortega, J.)

PREEMPTION - Minor in possession

City ordinance creating strict-liability offense of hosting gathering attended by minors where minors possess alcohol was preempted by state statute prohibiting host from knowingly permitting minor to consume alcohol. Reversed

J. Aoyagi, concurring, observed that the law of preemption is complex and warrants more attention from the Supreme Court.

Corvallis v. Pi Kappa Phi 293 Or App 319 (August 15, 2018) (Hadlock, J.)


Trial court erred by failing to instruct jury that pain that is only fleeting is not substantial pain. Reversed.

Defendant was accused of assault and criminal mistreatment for slapping a child on the face, leaving a persistent red mark. An element of each is ‘physical injury,’ which is caused by, inter alia, ‘substantial pain. Defendant offered evidence that a “very very minor injury” will cause redness, and that the redness in this case did not indicate substantial pain. Because defendant’s requested instruction correctly stated the law and was not covered by other instructions, he was entitled to it.

State v. Roberts 293 Or App 340 (August 15, 2018) (Hadlock, J.)


Trial court erred in failing to exercise discretion whether to accept waiver of counsel by defendant who was mentally ill but had been found able to aid and assist. Reversed and remanded for new trial.

The defendant had been found, following a third trip to the state hospital, able to aid and assist. The court accepted his waiver of counsel, and he presented an incoherent defense. The Court of Appeals decided that a person could be competent to stand trial but not competent to conduct trial. The Court of Appeals considered, and rejected, remanding the case for the trial court to consider defendant’s competence retrospectively.

State v. Hayne 293 Or App 351 (August 15, 2018) (Lagesen, J.)

APPEALS - Preservation of error

Trial court’s possible error in conducting an omnibus hearing without defendant’s presence was not preserved for appeal. Affirmed.

Defendant did not appear for an omnibus hearing. After the court and counsel discussed the matter, and defense counsel said that defendant’s testimony was necessary to the hearing, defense counsel “withdrew” the request for an omnibus hearing. The Court of Appeals held that defendant did not preserve for review an argument that he was entitled to a hearing and did not waive that right. The Court of Appeals declined to reach the issue as plain error.

State v. Nordholm 293 Or App 369 (August 15, 2018) (DeHoog, J.)

CIVIL COMMITMENT - Sufficiency of evidence

Trial court did not err by committing appellant to the Oregon Health Authority for 180 days. Affirmed.

Appellant stabbed her husband during a severe manic episode. She described auditory hallucinations, and a psychiatrist diagnosed her with bipolar disorder with psychosis. She declined to take medication while hospitalized. Appellant argued that stabbing her husband was an isolated incident and she did not pose a danger to others. The majority disagreed. In dissent, J. Aoyagi argued that, in light of the demanding burden of proof, the evidence did not establish that appellant was dangerous.

State v. TT 293 Or App 314 (August 15, 2018) (DeHoog, J.)

APPEALS - Review of Second Look proceedings

Defendant’s eligibility for a second-look hearing was only appealable from the order setting the hearing. Affirmed.

Defendant was convicted of aggravated murder based on events that occurred when he was 14 years old. Thereafter, the court held a Second Look hearing, ruled that conditional release was appropriate, and issued an order to that effect. The state did not appeal. Thereafter, the court issued an order directing defendant’s release and setting conditions. The state appealed and argued that conditional release was not appropriate. The Court of Appeals declined to reach the issue, explaining that it was only reviewable on appeal from the initial order, which the state did not appeal.

State v. Walraven 293 Or App 406 (August 15, 2018) (Aoyagi, J.)


Post-conviction court correctly granted summary judgment motion; trial counsel was not ineffective in failing to seek merger. S.J. Brewer, dissenting, argued that merger is required by the applicable statutes, and that Oregon Supreme Court decisions on the topic are inconsistent.

‘’Martinez v. Cain’’ 293 Or App 434 (August 15, 2018) (Per curiam)