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Oregon Appellate Court--August 29, 2018

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by: Rankin Johnson IV • September 17, 2018 • no comments

Summarized by Rankin Johnson, OCDLA

TRIAL PROCEDURE - Joinder

Indictments were not properly joined, but error was harmless as to most convictions. One conviction reversed, remanded for resentencing.

Indictment for numerous offenses, including attempted murder, burglary, sex offenses, did not specify a basis to join them. The trial court erred in denying the defendant’s demurrer. Although trial evidence would have been admissible as to most of the individual counts, some trial evidence would not have been admissible at a trial for unlawful use of a weapon. Accordingly, the error in joining that offense was warranted reversal of that conviction.

State v. Parks 293 Or App 514 (August 29, 2018) (Armstrong, J.)

EVIDENCE - 403 balancing

In sex-crimes prosecution, trial court erred in failing to conduct OEC 403 balancing as to other-bad-acts against the victim. Reversed and remanded for the trial court to conduct 403 balancing.

State v. Altabef 293 Or App 535 (August 29, 2018) (DeVore, J.)

PCR - Ineffective assistance of counsel

PCR court erred in holding that trial counsel’s failure to object to hearsay evidence was not harmful. Reversed and remanded with direction to grant the petition.

Petitioner had been convicted of the theft of a large copper coil. One piece of evidence was that a witness told a police officer that the witness observed defendant loading a similar coil into his pickup truck. As a result of an unrelated injury, the witness no longer remembered the event, but the police officer testified about the statement. Trial counsel objected, but was ineffective in failing to argue further when the trial court observed that the forgetful witness “had no clue.” The evidence was not admissible as hearsay, and, in light of the trial evidence, its admission was harmful.

‘’Bohnenkamp v. State 293 Or App 551 (August 29, 2018) (Lagesen, J.)

TRIAL PROCEDURE - Mistrials

Trial court abused discretion in denying a mistrial after police officer testified that defendant didn’t want to talk to him without talking to her attorney Reversed and remanded for new trial.

State v. Swanson 293 Or App 562 (August 29, 2018) (DeHoog)

SENTENCING - DNA samples

Trial court erred in including, in judgment of conviction for misdemeanor assault, provision directing defendant to provide blood or buccal samples and thumbprints. Reversed and remanded with direction to delete offending judgment term and destroy any samples.

State v. Maret 293 Or App 596 (August 29, 2018) (Per Curiam)

TRIAL PROCEDURE - Statutes of limitations

Trial court erred in denying motion to dismiss on statute-of-limitations grounds. Reversed and remanded for further proceedings.

Defendant was indicted, and a warrant issued, in 2012 for 2011 traffic offenses, subject to a two-year statute of limitations. In denying defendant’s motion to dismiss, the trial court incorrectly ruled that the prosecution commenced when the warrant was issued. The court did not rule on whether defendant was out of the state and thereby tolled the limitations period.

State v. McMillan 293 Or App 598 (August 29, 2018) (Per Curiam)