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Oregon Appellate Court--October 31, 2018

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by: Rankin Johnson IV • October 31, 2018 • no comments

Summarized by Rankin Johnson, OCDLA

SEARCH AND SEIZURE - Officer safety

Police and could lawfully order defendant to submit to being handcuffed because they had reasonable suspicion that he posed a threat to officer safety. Affirmed.

Defendant was loitering in the parking lot of a closed business, and police approached him to investigate. He was uncooperative, and the investigating officer believed he posed a threat of violence. The officer asked defendant to turn around and submit to being handcuffed. Defendant did not, and he was arrested for interfering with a police officer. The Court of Appeals held that, regardless of whether police could properly stop defendant, the order was reasonable under the circumstances.

State v. Kreis 294 Or App 554 (October 31, 2018) (Egan) (Beaverton Municipal, Rink)

PROBATION - Medical-marijuana prohibition

Special probation condition forbidding defendant from seeking an OMMP card was not supported by the record. Remanded for resentencing.

State v. Jersheid 294 Or App 564 (October 31, 2018) (Armstrong) (Douglas County, Marshall)

SENTENCING - Sentences in excess of M11 minima

Trial court erred by ordering that entire 120-month sentence was ineligible for reduction, because M11 only provided for an irreuducible 100-month term. Remanded for resentencing.

Additionally, for the first time on appeal, defendant argued that the entire indictment, rather than a single count, should have been dismissed following a successful demurrer. The Court of Appeals declined to consider that argument as unpreserved.

State v. Dallavis 294 Or App 793 (October 31, 2018) (Tookey) (Lane County, Conover)

SEARCH AND SEIZURE - Failure to carry/present license

Police unlawfully extended stop for failing to carry/present license after verifying defendant’s identify. Remanded for further proceedings.

Police validly stopped defendant, and defendant did not provide her driver’s license, but provided her name, driver’s license number, and other information from memory. The stopping officer verified that information but thereafter improperly extended the stop and asked questions about defendant’s drug use.

State v. Middleton 294 Or App 596 (October 31, 2018) (Garrett) (Washington County, Butterfield)

EVIDENCE - Experts

Trial court erred by admitting expert opinion evidence of a nurse that a person should not drink while taking antiseizure medication. Remanded for new trial.

Defendant was accused of manslaughter and other offenses following an automobile accident. The state’s theory was that defendant was intoxicated; defendant’s theory was that he had a seizure. The Court of Appeals held that the record did not establish that the nurse had the requisite expertise.

State v. Wendt 294 Or App 621 (October 31, 2018) (Shorr) (Linn County, Delsman)

SEARCH AND SEIZURE - Officer safety

Officer-safety exception did not justify search of defendant’s pocket. Remanded for further proceedings.

A single police officer responded to a report of a man and woman fighting in a residence. The officer handcuffed the man, patted him down, and discovered a bulge in the man’s pocket. The officer was concerned that the bulge might be “something heavy to increase the force of a punch.” Inside the pocket, the officer discovered a glass cylinder containing methamphetamine. The record did not contain facts establishing that searching inside the pocket would reduce any threat of harm posed by the defendant.

State v. Leach 294 Or App 636 (October 31, 2018) (Powers) (Jefferson County, Williams)

APPEAL AND REVIEW - Preservation

Defendant’s argument was not preserved. Affirmed.

At trial, the state called witnesses to authenticate a CARES video, dismissed the witnesses, and then offered the video. Defendant objected to the foundation. The state argued that defendant should have objected before the witnesses were dismissed. Defense counsel apologized and made no further argument. The Court of Appeals declined to consider whether the foundation laid by the state was sufficient.

State v. Smoot 294 Or App 651 (October 31, 2018) (Per Curiam) (Washington County, Letourneau)