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Oregon Appellate Court--January 9, 2019

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by: Rankin Johnson IV • January 16, 2019 • no comments

Summarized by Rankin Johnson, OCDLA

SENTENCING - Marijuana use

Trial court erred by imposing marijuana prohibition without first finding that defendant did not have a medical-marijuana card. Remanded for further proceedings.

State v. Kilgore 295 Or App 602 (January 9, 2019) (Armstrong) (Yamhill County, Collins)

EVIDENCE - Other-bad-acts

Evidence that defendant previously sexually abused the victim's mother when she was fifteen was admissible to show sexual purpose toward the ten-year-old victim. Affirmed.

State v. Moles 295 Or App 606 (January 9, 2019) (DeVore) (Marion County, Prall)

THEFT - Theft by selling

Attempting to return stolen merchandise for a cash refund is not theft by selling. Reversed.

State v. Meyer 295 Or App 632 (January 9, 2019) (Lagesen) (Multnomah County, Rees)

FITNESS FOR TRIAL - Findings of fact

Trial court did not err in believing state's expert and deciding that defendant was fit for trial, notwithstanding evidence that defendant's IQ was between 59 and 65.

The Court of Appeals explained that the trial court had sufficient evidence to conclude that defendant understood the proceedings and could communicate with his counsel and make choices in a meaningful way, and it would not re-weigh the evidence.

The Court of Appeals also decided that an unlawful but fruitless interrogation did not taint an otherwise-lawful interrogation four days later with a proper Miranda waiver.

The Court of Appeals also held that defendant's life-without-parole sentence was lawful.

State v. Ward 295 Or App 636 (January 9, 2019) (Shorr) (Washington County, Knapp)

STALKING ORDERS - Findings relating to firearm possession

Trial court did not err by issuing federal firearms certification in connection with a stalking order. Affirmed.

The order contained a finding that respondent was subject to federal prosecution for possession of firearms because respondent had 'cohabited' with petitioner. On appeal, respondent disputed that he had cohabited with respondent, the basis for the federal firearm prohibition was appropriate. The Court of Appeals declined to consider the issue, because petitioner failed to cite federal law in his briefing.

S.P.Z v. Kirkwood 295 Or App 686 (January 16, 2019) (Lagesen) (Washington County, Fun)

CRIMINAL MISTREATMENT - Duty to provide care

Duty to provide care is not limited to physical care; duty imposed under the statutory requirements for a power of attorney brought defendant’s obligations to victim within ambit of criminal mistreatment statute. Affirmed.

The victim spent ten months in a hospital and a nursing facility. He signed a power of attorney authorizing defendant, his daughter, to manage his financial affairs. She took money from his bank accounts, opened fraudulent credit-card accounts, and bought a car.

The Court of Appeals decided that, although the statute was initially limited to those with a duty to provide physical care, amendments expanded the statute's scope.

State v. Roberts 295 Or App 670 (January 16, 2019) (DeVore) (Clatsop County, Nelson)

MIRANDA - Interrogation following warnings

Defendant re-initiated conversation following Miranda warnings. Affirmed.

When told that his interrogation was being recorded, defendant declined to answer questions and asked for counsel. Detectives said defendant was under arrest for murder and terminated the interview. Defendant asked about his case and whether his girlfriend would be charged. When detectives said that they couldn't talk to defendant after he asked for a lawyer, defendant "unask[ed]" for a lawyer. Defendant clarified that he wanted to talk without a lawyer and made admissions.

State v. Gillespie 295 Or App 702 (January 16, 2019) (James) (Clackamas County, Jones)