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Oregon Appellate Court--November 7, 2018

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by: Rankin Johnson IV • November 8, 2018 • no comments

Summarized by Rankin Johnson, OCDLA

CONTROLLED SUBSTANCES - Sufficiency of the evidence

Evidence that youth possessed a pipe with white residue was not sufficient to prove that youth possessed methamphetamine. Reversed.

Youth was stopped for a traffic infraction. In the car, police found marijuana, not at issue on appeal, and a glass pipe with residue. Although Youth denied familiarity with what police called a “meth pipe,” he admitted that his fingerprints were on it.

At trial, police testified that white residue, such as was in the pipe, was usually methamphetamine. Another officer testified that it was not marijuana residue and the pipe looked like a methamphetamine pipe rather than a marijuana pipe. The Court of Appeals found that the evidence too speculative to support a conviction.

State v. F.R.-S 294 Or App 656 (November 7, 2018) (Egan) (Hood River County, Olson)

BURGLARY - Sufficiency of the evidence

Evidence did not establish intent to commit a crime at the time defendant entered his ex-girlfriend’s home. Reversed and remanded to enter conviction for trespassing.

Defendant broke into his ex-girlfriend’s home, drank beer, injured himself, and damaged property inside. The evidence did not show that he intended a crime at the time he entered.

State v. Henderson 294 Or App 664 (November 7, 2018) (Hadlock) (Multnomah County, Ryan)

DOUBLE JEOPARDY - Judicial actions constituting acquittal

Order adjudicating youth delinquent for third-degree criminal mischief constituted acquittal of second-degree criminal mischief. Reversed.

During trial, court orally found defendant within juvenile court’s jurisdiction for third-degree criminal mischief. During a recess, the judge decided that the evidence was sufficient for a finding on second-degree criminal mischief. The court and counsel discussed that issue, but the court issued a judgment finding youth within jurisdiction for third-degree criminal mischief, intending to revisit it later. The court thereafter amended the judgment to second-degree criminal mischief. The Court of Appeals found that amending the judgment violated double-jeopardy principles.

State v. CCW 294 Or App 701 (November 7, 2018) (DeVore) (Washington County, Rini)


Allegations and supporting evidence were not sufficient to serve as a free-standing, successive, untimely actual-innocence post-conviction claim. Affirmed.

The court considered, but did not decide, whether a freestanding actual-innocence claim was possible under Oregon law. Such a claim, if it exists, would require extraordinarily persuasive evidence of factual innocence.

Reeves v. Nooth 294 Or App 711 (November 7, 2018) (Lagesen) (Malheur County, Hung)


Post-conviction petitioner failed to show that counsel’s failure to object to ‘natural and probable consequences’ instruction was prejudicial. Affirmed.

Drown v. Persson 294 Or App 754 (November 7, 2018) (DeHoog) (Washington County, Bergman)


Trial court’s refusal to strike juror for cause was harmless, because the jury seated was not objectionable. Affirmed.

Defendant used all of his peremptory challenges, but, as far as the record shows, did not object to any of the jurors actually seated.

State v. Wright 294 Or App 772 (November 7, 2018) (James) (Multnomah County, Skye)

CONTEMPT - Sufficiency of the evidence Trial court erred by convicting defendant of contempt where there was no evidence that defendant knew of the underlying order. Reversed.

State v. Pearce 294 Or App 775 (November 7, 2018) (Per Curiam) (Marion County, James)

ASSAULT - Injury

Evidence that defendant pulled the victim’s hair was not sufficient proof of injury to support an assault conviction. Reversed.

State v. Meadows 294 Or App 782 (November 7, 2018) (Per Curiam) (Klamath County, Osborne)

SENTENCING - Special probation conditions

Special probation condition forbidding medical marijuana use was not supported by adequate findings. Remanded for resentencing.

State v. Rhamy 294 Or App 656 (November 7, 2018) (Per Curiam) (Clackamas County, Herndon and Jones)