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Oregon Appellate Court--February 7, 2018

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by: Rankin Johnson IV • February 15, 2018 • no comments

Summarized by Rankin Johnson, OCDLA

  • PCR - Ineffective assistance -- Objection to vouching evidence

On facts of this case, neither trial not appellate counsel were ineffective with respect to vouching evidence.

In the underlying criminal trial, the defendant was accused of sex offenses against 16-year-old M and 7-year-old S. Prior to trial, defense counsel moved to exclude evidence of a diagnosis of child sexual abuse. The prosecutor disclaimed an intent to offer such evidence.

Expert child interviewers testified that both M and S might have minimized their reports of the defendant’s conduct M’s concern about the consequences of abuse allegations could have led her to minimize the defendant’s conduct.

Also at the underlying criminal trial, another expert child interviewer testified that S described defendant putting his fingers in her vagina. The expert recommended that S be kept away from defendant to protect her safety.

In post-conviction court, petitioner argued that trial counsel had failed to object to evidence of expert recommendations that the victims be separated from the defendant. In rejecting that argument, the court held that defense counsel had objected to the evidence for related reasons, and that, in light of the developing law at the time of trial, counsel had not been ineffective in failing to make a more specific objection. Similarly, appellate counsel had not been ineffective in failing to raise the issue as plain error.

Sartin v. Taylor 290 Or App 63 (February 7, 2018) (Hadlock, J.)

  • MENTAL STATES - Mental disease or defect - Drug-induced psychosis

In murder trial, trial court did not err in declining to instruct the jury that a drug-induced psychosis is not a mental disease or defect.

The defendant killed his girlfriend during an incident where he perceived her face to become evil and he believed she was a demon. After killing her, he drove to Mississippi, believing that he heard the victim’s voice on the radio and that radio stations were talking to him. In Mississippi, he confessed to the murder.

A defense expert testified at trial that the defendant had “probable amphetamine-induced psychotic disorder with delusions and hallucinations” at the time of the killing. The expert distinguished the diagnosis from drug dependence. The expert said that, when he evaluated the defendant, the defendant did not show signs of psychosis.

The defense expert said that defendant was a heavy user of methamphetamine and had consumed a gram of methamphetamine in the 12 hours leading up to the victim’s death.

A state’s expert opined that the defendant was suffering from “a methamphetamine-induced psychotic disorder based upon his voluntary use of that drug” at the time of the killing but lacked any brain defect, lingering psychosis or long-term mental disorder. The state's expert also said that drug-induced psychosis is transient and only present when the drug is present.

The trial court gave instructions on voluntary intoxication, diminished capacity, and guilty except for insanity. The trial court also instructed the jury that “[d]rug use, drug dependence, and drug-induced psychoses are not mental diseases or defects as the term mental disease or defect is used in these instructions.”

The court considered legislative history to determine that temporary substance-induced psychosis was a “personality disorder” as that term is used in ORS 161.295, and, therefore, it is not a mental disease or defect. Accordingly, the court affirmed the conviction and sentence.

The court reversed the portion of the judgment that required the defendant to pay costs for his extradition. The court reasoned that the trial court had not made findings regarding the defendant’s ability to pay.

State v. Folks 290 Or App 94 (February 7, 2018) (Devore, J.)

  • DEFENSES - Self-defense - relevance of other-bad-acts
  • APPEALS - Preservation of error

In self-defense case, defendant's other-bad-acts are not relevant to whether the defendant acted reasonably. A change in the law between trial and appeal is relevant in determining whether a party preserved an issue on appeal.

Defendant was charged with UUW and Reckless Endangerment after he fired a gun into his apartment wall. He argued that he had been acting in self-defense. The state sought to offer evidence that the defendant had previously called 911, in support of its argument that the defendant was paranoid and therefore he did not act reasonably in self-defense. The trial court admitted the evidence, but the Court of Appeals reversed. An element of a self-defense claim is an objectively-reasonable belief that the use of force is warranted. Because the belief must be objectively reasonable, the defendant’s actual subjective belief and history are not relevant. Therefore the trial court erred in admitting evidence of prior instances when the defendant might have acted unreasonably.

State v. Hollingsworth 290 Or App 121 (February 7, 2018) (Lagesen, J.)

  • JUVENILE LAW -- Reasonable efforts to contact parent

In changing a permanency plan from reunification to adoption, DHS must make a “reasonable” effort to contact a custodial parent who is serving a long prison term. Failure to make a reasonable effort prevents changing the permanency plan.

DHS sought jurisdiction over Z. Mother was a drug addict, and Father was in prison for sex offenses against a minor. When mother died unexpectedly of a drug overdose, DHS sought to change the permanency plan to adoption, and made minimal efforts to contact father before the trial court issued a permanency adoption judgment. The trial court reasoned that, because father was serving a thirty-year prison term, DHS would be unable to take any steps to reunify Z and father. The Court of Appeals reversed, reasoning that “reasonable efforts” to contact father were required by statute, and that, with the assistance of other people, father might have been able to exercise control over Z’s case. The judgment was reversed and the matter remanded for further proceedings.

In dissent, DeVore wrote that DHS had behaved reasonably in light of father’s prison term.

DHS v. L.L.S. 290 Or App 132 (February 7, 2018) (Lagesen, J.)

  • DEFENSES - Self-defense
  • APPEALS - Plain and invited error

When the issue for the jury was whether the defendant was justified in using force in self defense, trial court plainly erred by giving a standard instruction on when a police officer is justified in using force.

Defendant was charged with resisting arrest, second-degree assault, and assault on a public safety officer. He argued that he had been defending himself. The state asked for UCrJI 1116 (Defense-Physical Force-Involving Police Officers) and UCrJI 1227A (Peace Officer Use of Physical Force During an Arrest.) Defendant objected to UCrJI 1116 as an improper comment on the evidence. The trial court disagreed. Defendant objected to UCrJI 1227A as cumulative of UCrJI 1116. The trial court agreed. The state asked that the court give UCrJI 1227A instead of UCrJI 1116, and defendant did not object to that change. The trial court gave UCrJI 1227A and not UCrJI 1116.

The Court of Appeals determined that defendant’s objection to UCrJI 1116 did not apply to UCrJI 1227A, and therefore any objection was unpreserved, but the defendant had not invited the error by failing to object to the court substituting UCrJI 1227A for UCrJI 1116. And, the court determined that giving UCrJI 1227A was plain error; when the defendant’s use of force is at issue, the lawfulness of the victim’s use of force is not relevant. The judgment was reversed and the case remanded for new trial.

State v. Flack 290 Or App 152 (February 7, 2018) (Tookey, J.)

  • STALKING/VROs—Acts constituting violation

Serving legal documents by mail is not a violation of a FAPA order.

Where defendant was entitled, under the terms of FAPA restraining order, to serve documents relating to court proceedings in a manner permitted by law, serving a pro-se legal document by mail was not a violation of the order.


State v. Feyko 290 Or App 159 (February 7, 2018) (Tookey, J.)


  • JUVENILE LAW

Record supported DHS finding asserting jurisdiction over child.

DHS v. J.E.F 290 Or App 164 (February 7, 2018) (James, J.)


  • TRIAL PROCEDURE—Presence of defendant

Trial court erred by entering amended judgment without defendant’s knowledge, presence, or waiver.


State v. Kragt 290 Or App 171 (February 7, 2018) (Per curiam)