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Oregon Appellate Court--July 18, 2018

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by: Rankin Johnson • July 25, 2018 • no comments

Summarized by Rankin Johnson, OCDLA

ATTORNEY FEE AWARDS - Requisite findings

Trial court erred by using defendant’s acknowledgement of the need to pay his debts to find that he was able to pay appointed attorney fees. Offending judgment term reversed.

State v. Villalta 292 Or App 811 (July 18, 2018) (Ortega, J.)

PROBATION CONDITIONS - Medical marijuana

Trial court erred by prohibiting defendant from using medical marijuana as a condition of probation. Reversed and remanded for resentencing.

State v. Bowden 292 Or App 815 (July 18, 2018) (Ortega, J.)

EVIDENCE - 403 balancing

Trial court erred by admitting evidence of defendant’s conduct toward the victim without conducting 403 balancing. Reversed and remanded for further proceedings.

Defendant was charged with sexual abuse for kissing the victim. Defendant moved in limine to exclude evidence that he had previously kissed or touched the victim. The court failed to conduct balancing on the record and denied the motion.

The Court of Appeals remanded for the trial court to apply 403 balancing and, depending on the outcome, to determine whether to order a new trial.

State v. Holt 292 Or App 826 (July 18, 2018) (Lagesen, J.)

JUVENILE DELINQUENCY - Delinquency petition following probation violation

Juvenile was sanctioned for a probation violation and thereafter accused of delinquency based on the same conduct. The Court of Appeals held that, by statute, the delinquency petition was barred by the prior probation violation. Reversed.

State v. S-Q K 292 Or App 836 (July 18, 2018) (Lagesen, J.)

PAROLE BOARD PROCEDURE - Findings of fact Parole Board erred by relying on an incomplete and inaccurate psychological evaluation to deny parole release. Reversed and remanded for further proceedings.

Nevens v. Board of Parole 292 Or App 848 (July 18, 2018) (Lagesen, J.)

CIVIL COMMITMENT - Jurisdiction and venue Court of Appeals accepted state’s concession that civil commitment proceedings had been improperly transferred from one county to another based on a motion with factual inaccuracies and which was not served on appellant. Reversed.

State v. CH 292 Or App 854 (July 18, 2018) (Lagesen, J.)

JURY INSTRUCTIONS - Supplemental instructions

Supplemental jury instruction was proper. Affirmed.

After beginning deliberations, the jury sent a question to the court, which said, contrary to instructions, that the jury’s vote was 8-4 in favor of conviction and asking for further guidance on intent. The trial court directed the jury to consider the prior instructions and provided no further instruction. The Court of Appeals determined that the supplemental instruction was not coercive. The Court of Appeals further held that the jury’s error in revealing its voting posture did not establish that the jury was confused about any substantive issue. J. Edmonds, concurring, would have held that the court's response to the jury's question was not a new instruction and that the court’s action should not be reviewed as a supplemental jury instruction.

State v. Garrett 292 Or App 860 (July 18, 2018) (Garrett, J., Edmonds, J., concurring)

SEARCH AND SEIZURE - Probable cause as to driving uninsured

Police lacked probable cause that defendant was driving uninsured, and, thus, the subsequent impound and inventory search were invalid. Reversed.

When stopped, the defendant produced an insurance card that had her name, the name of an insurance company, her account number, and a 24-hour toll-free number, but did not reference a specific vehicle or an effective date. Defendant also had a valid insurance card for a different vehicle. The police officer declined to call the insurance company. Although the insurance card did not meet statutory requirements and thus defendant had committed the offense of failing to carry proof of insurance, the Court of Appeals held that the police lacked probable cause that defendant actually lacked insurance.

State v. Balabon 292 Or App 870 (July 18, 2018) (James, J.)

SENTENCING-Fines - fees and assessments

Trial court erred by imposing $60 “mandatory state amt.” Offending judgement term reversed; otherwise affirmed.

State v. Snyder 292 Or App 880 (July 18, 2018) (Per curiam)

SENTENCING - Maximum terms

Probation-revocation court plainly erred by imposing concurrent terms of 58 months in prison and 36 months of post-prison supervision on each of three Class C felonies. Reversed and remanded for resentencing.

State v. Jepsen 292 Or App 884 (July 18, 2018) (Per curiam)

JUVENILE LAW - Detention as probation sanction

Juvenile court plainly erred by imposing probation condition of detention at the discretion of the juvenile department; detention can only be imposed following ordinary probation-violation procedures. Reversed and remanded with direction to strike the offending judgment term.

State v. DRM 292 Or App 887 (July 18, 2018) (Per curiam)

CONTEMPT - Terminology in judgment

Trial court erred by entering “conviction” for contempt. Reversed and remanded with direction to enter judgment finding defendant “in contempt of court.”

State v. Clardy 292 Or App 890 (July 18, 2018) (Per curiam)