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Oregon Appellate Court--December 5, 2018

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by: Rankin Johnson IV • December 14, 2018 • no comments

Summarized by Rankin Johnson, OCDLA

SEARCH AND SEIZURE - Officer safety

Officer had a legitimate basis to extend an investigatory stop to request to frisk defendant for weapons. Affirmed.

During a traffic stop, the stopping officer smelled methamphetamine. He asked about it, and thereafter asked to frisk defendant, leading to the discovery of evidence. Because meth-users can be unpredictable, because defendant became nervous when asked about methamphetamine, and because syringes used by meth-users could be used as weapons, the officer had a reasonable basis to be concerned for his safety.

State v. Toll 295 Or App 277 (December 5, 2018) (Egan) (Marion County, Hart)

EVIDENCE - 403 Balancing

In sex-abuse prosecution, trial court did not abuse its discretion by excluding, on 403 grounds, extrinsic evidence that defendant had been falsely accused of abusing the victim's sisters. Affirmed.

Defendant sought to offer evidence of prior accusations that had resulted in a mistrial, and argued that the prior unproved allegations were false and were connected to the allegations in this case. The court excluded the evidence as confusing and prejudicial.

State v. Perez-Garcia 295 Or App 156 (December 5, 2018) (Ortega) (Marion County, Abar)

POST-CONVICTION - Bases for relief

Post-conviction court erred by dismissing as untimely claims that, petitioner alleged, had been dismissed by his attorney without his knowledge. Reversed and remanded.

Horath v. Nooth 295 Or App 163 (December 5, 2018) (Lagesen) (Malheur County, Sullivan)

EVIDENCE - Hearsay

Trial court erred by admitting hearsay evidence that defendant asked his cell-mate to contact the victim before trial. Reversed and remanded.

The victim testified that she received the call from the roommate and the roommate had said the call was at defendant's request, but the roommate did not testify.

State v. Now 295 Or App 169 (December 5, 2018) (Lagesen) (Deschutes County, Miller)

SENTENCING - Restitution

When two different events could have supported conviction for harassment, jury did not specify which it relied on, and only one caused pecuniary damages, court did not err by imposing restitution. Affirmed.

State v. Andrews 295 Or App 194 (December 5, 2018) (Garrett) (Malheur County, Sullivan)

EXPUNCTION - Expunction of juvenile records

Trial court did not err by declining to expunge a previously set-aside juvenile record establishing delinquency for sodomy. Affirmed.

Youth unsuccessfully argued that, because his adjudication was set aside as part of a diversion-like process, the statute preventing expungement for juveniles found delinquent for some sex offenses did not apply.

State v. P.T. 295 Or App 91 (December 5, 2018) (Armstrong) (Multnomah County, Tennyson)

CIVIL COMMITMENT - Proof of dangerousness

Trial court erred by committing appellant to involuntary mental health treatment. Reversed.

Although appellant was schizophrenic, had delusions he was being pursued by the Mafia, and had a minor history of violence, the evidence was insufficient to prove he was a danger to others. State v. J.P. 295 Or App 228 (December 5, 2018) (Shorr) (Douglas County, Marshall)

INTERFERING WITH A PEACE OFFICER - Interfering with the performance of peace officer's duties

Defendant interfered with peace officer's duties when, during the arrest of another person, he recorded the arrest with a cell phone and moved around, coming within ten feet of the arresting officers, and yelled and swore at the officers. Affirmed.

The Court of Appeals explained that, by approaching the officers, defendant created an officer-safety risk, and the officers told him so before arresting him.

State v. Scheirman 295 Or App 238 (December 5, 2018) (James) (Coos County, Barron)

TRIAL PROCEDURE - Bench trials

In bench trial, court erred by failing to explain its understanding of the elements of the offense. Reversed and remanded.

Defendant submitted jury instructions in a bench trial and asked the court to state whether it agreed with defendant's interpretation of the law. The court declined, preventing defendant from exercising his right to appeal.

State v. Colby 295 Or App 246 (December 5, 2018) (James) (Lane County, Vogt)

SEARCH AND SEIZURE - Basis to stop

Police officer improperly stopped defendant by removing knife from his waistband, placing it on hood of police car, and questioning defendant about drugs. Reversed and remanded.

State v. Bese 295 Or App 254 (December 5, 2018) (Powers) (Yamhill County, Collins)

SENTENCING - Supervision conditions

Sentencing court plainly erred by imposing both prison and PPS conditions. Reversed and remanded.

State v. Lutcavich 295 Or App 263 (December 5, 2018) (Per curiam) (Umatilla County, Brauer)


Refusing to obey police officer's order to leave the airport was passive resistance, and thus not the crime of interfering with a peace officer. Reversed and remanded.

State v. Estabrook 295 Or App 268 (December 5, 2018) (Per curiam) (Multnomah County, Bottomly)

CONTEMPT - Judgment

Trial court erred by issuing judgment of contempt that said defendant was "convicted" of a "misdemeanor." Reversed and remanded.

State v. Shamsud-Din 295 Or App 271 (December 5, 2018) (Per curiam) (Multnomah County, Albrecht)