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Oregon Appellate Court--November 21, 2018

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by: Rankin Johnson IV • November 26, 2018 • no comments

Summarized by Rankin Johnson, OCDLA

APPEALS - Preservation

Objection to jury instructions was not preserved. Affirmed.

At trial, defendant sought and received a self-defense instruction, and the state sought and received an instruction regarding provocation. Defendant took "exception" to the provocation instruction, but did not explain his complaint.

State v. Moles 295 Or App 1 (November 21, 2018) (Hadlock) (Benton County, Donohue)

ROBBERY - Delay between theft and threat of force

Evidence did not show that defendant used force "immediately after" theft. Reversed.

Defendant stole a pair of sunglasses from a store in a shopping mall. Fifteen minutes later and twelve stores away, police arrived and defendant resisted being taken into custody. The court considered text and legislative history to construe the term "immediately after" and concluded that the delay was greater than contemplated by the statute.

State v. Tolbert 295 Or App 6 (November 21, 2018) (DeVore) (Marion County, Penn and Abar)

MIRANDA - Right to counsel on related charges

Police violated defendant's rights by questioning him about murder charges which were related to felon-in-possession charges on which defendant was represented. Reversed and remanded.

While out on bail on four pending FIP charges, defendant shot and killed his neighbor. While questioning defendant about the murder, police realized that the FIP charges were factually related. Although defendant's attorney on the FIP charges had said that he would probably withdraw, he had not filed the withdrawal motion, and thus police should have obtained counsel's permission before continuing.

State v. Craigen 295 Or App 17 (November 21, 2018) (Lagesen) (Umatilla County, West)

SENTENCING - Revocation sentences

The court plainly erred by imposing a prison term following probation revocation that was greater than permitted by the sentencing guidelines. Remanded for resentencing.

Defendant was sentenced to probation on each of two counts. As to each count, the court wrote in the judgment that defendant would receive 18 months in prison on one, and 36 on the other, consecutive, if probation was revoked.

In one proceeding, not at issue on appeal, the court revoked probation on one and sent defendant to prison for eighteen months. The maximum lawful sentence was six months.

In the proceeding on appeal, the court revoked the other sentence and imposed a sentence of 36 months, when the maximum lawful sentence was 18 months. The Court of Appeals exercised its discretion to review and reverse.

Judge Lagesen, concurring, observed that the initial judgment was intended as a lenient probationary term with a substantial prison term, and that defendant urged the court to impose that sentence initially, but agreed that review was appropriate.

State v. Taylor 295 Or App 32 (November 21, 2018) (James, Lagesen concurring) (Columbia County, Callahan)

EVIDENCE - Other-bad-acts

Trial court erred by failing to instruct jury that evidence of acts on one day should not be used to infer guilt on a later day. Remanded for new trial.

Defendant was accused of assault on one day and criminal mischief on the following day, both against a former romantic partner. The state's theory was that the two crimes were logically related because defendant committed crimes when he became angry, and urged the jury to consider the second to provide motive as to the first. The Court of Appeals held that the second offense did not tend to prove motive for the first offense.

State v. Cardona 295 Or App 56 (November 21, 2018) (Aoyagi) (Multnomah County, Kantor)

SENTENCING - Sentence-reduction programs

Trial court erred by denying eligibility for sentence-reduction programs without finding substantial and compelling reasons to do so. Remanded for resentencing.

State v. Grover 295 Or App 80 (November 21, 2018) (Per curiam) (Lincoln County, Sanders)

SENTENCING - Revocation sentences

Trial court plainly erred by directing that defendant perform work-crew service if released from jail early. Remanded for resentencing.

The Court of Appeals explained that the trial court lacked authority to impose a jail sentence and also a probation-like provision.

State v. Zoske 295 Or App 86 (November 21, 2018) (Per curiam) (Lincoln County, Bachart)