Oregon Appellate Court--February 6, 2019
by: • March 8, 2019 • no comments
Summarized by Rankin Johnson, OCDLA
CHILD NEGLECT - Meaning of 'unattended.'
Leaving a child in bed with her mother was not leaving the child "unattended" for purposes of child neglect. Reversed.
Defendant, an active methamphetamine user, was charged with second-degree child neglect and recklessly endangering another person after a two-year-old with whom he lived ingested methamphetamine.
Although the court reversed his conviction for child neglect, defendant was properly convicted of reckless endangerment. The record supported an inference that defendant or one of his friends brought methamphetamine into the house and dropped it, and defendant knew about the possibility but failed to find it before it was consumed by the victim.
State v. Walker 296 Or App 1 (February 6, 2019) (Hadlock) (Yamhill County, Stone)
EVIDENCE - Admissibility of child-sex-abuse diagnosis
Trial court plainly erred by admitting evidence of a child-sex-abuse diagnosis when that evidence was not supported by physical findings. Remanded for new trial.
State v. Murillo-Bejar 296 Or App 14 (February 6, 2019) (Hadlock) (Marion County, Geyer)
SENTENCING - Evidence of reasonableness of medical expenses
Trial court erred by declining to impose restitution for medical expenses. Reversed on state's appeal.
The prosecution offered evidence that the costs for medical procedures were paid and reasonable in the market. Defendant argued that no witness testified that the medical procedures performed were reasonable in light of the victim's condition. The court held that, in light of the evidence regarding the bills and the regulatory framework, the charges were reasonable. The court rejected defendant's argument that the medical treatment was not necessary, because defendant had not made that argument in the trial court and because trial evidence supported a contrary inference.
In dissent, James, J., argued that, in light of a substantial body of decisional law regarding medical bills, reasonableness, and necessity, and in light of the practical requirements of litigation, the majority erred in holding that evidence that a bill was paid by an insurer was sufficient to prove reasonableness. He also disputed whether the fact record established reasonableness.
State v. Campbell 296 Or App 22 (February 6, 2019) (DeVore, James dissenting) (Yamhill County, Wiles)
SEARCH AND SEIZURE - Property which may be inventoried
When defendant left her purse in a car to be impounded, police could properly search the purse pursuant to inventory while defendant was nearby. Affirmed.
Police stopped defendant and, upon learning that she had no license or insurance and the car was unregistered, decided to impound the car. Defendant got out of the car on request, taking her cigarettes and cell phone but leaving her purse.
While defendant called for a ride, police inventoried the car, starting with her purse, finding methamphetamine and paraphernalia.
The majority held that it was a straightforward inventory.
In dissent, Egan, J., argued that police should have offered defendant an opportunity to remove her property before inventorying it. He further argued that, although the Supreme Court had held that inventory policies might satisfy constitutional requirements, reviewing courts still had an obligation to rule on individual cases.
State v. Fulmer 296 Or App 61 (February 6, 2019) (Aoyagi, Egan dissenting) (Washington County, Garcia)
