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Oregon Court of Appeals 03-31-10

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by: Abassos • March 30, 2010 • no comments

Read the full article for details about the following new cases:

  • Prosecutorial Misconduct - Mistrial and Double Jeopardy
  • DUII Diversion - Fines
  • Sex Abuse - Doctor's diagnosis
  • Sex Abuse - Medical Expert's Diagnosis
  • Stop - Extension
  • Search Warrant - Stale Facts
  • Stop - Unlawful Extension
  • Stop - Free to Leave
  • Restitution - Future Treatmentll


Prosecutorial Misconduct - Mistrial - Double Jeopardy

The trial court erred in barring a retrial on double jeopardy grounds after prosecutorial misconduct caused a mistrial. In order to bar a retrial, the misconduct must have been so prejudicial that it could not be cured short of a mistrial. But here, where the state made an argument that could be interpreted as referring to evidence that had been suppressed, a curative instruction could have sufficiently minimized the prejudice. State v. Garner

DUII Diversion - Fines

The trial court erred in dismissing defendant's DUII charge after diversion where defendant did not timely pay all his fees. The court found good cause for the defendant not paying his fees but there is, according to the appellate court, no provision which allows a court to except, for good cause, a failure to comply. State v. Rowland

Sex Abuse - Doctor's diagnosis - Southard

It is reversible error for a court to admit a doctor's diagnosis of sex abuse when there is no confirming physical evidence. Here, the doctor testified that the hymen had an unusual appearance due to a couple notches in the hymen. But she also testified that she couldn't "really tell one way or the other" whether there was an injury. Thus, to the extent there was physical evidence it was not confirmatory of sex abuse. 16 counts of sex abuse reversed and remanded. State v. Lovern

Sex Abuse - Medical Expert's Diagnosis - Southard

It is also reversible error to admit a medical expert's opinion, in the absence of physical evidence, that the medical examination was "highly concerning for sexual abuse". "Highly concerning" sounds like a diagnosis to a jury. See Lovern, above. State v. Merrimon

Stop - Extension - Rodgers/Kirkeby

The traffic stop was unlawfully extended when the officer asked defendant about drugs without reasonable suspicion to believe defendant was in possession of drugs. It is no help to the state that there were violations justifying the initial stop of defendant on his bicycle and that there was reasonable suspicion that defendant was in possession of burglars tools. Any inquiry on matters about which an officer does not have reasonable suspicion, unconstitutionally extends the duration of an otherwise lawful stop. State v. Klein

Search Warrant - Stale Facts

A search warrant for videotapes of sex abuse which would be insufficiently stale may be made constitutionally sufficient by the officer's training and experience. In this case, there were statements that 20 years earlier, defendant had molested his daughters and that, more recently, he had molested a child. There was some evidence that at least one of the old incidents had been recorded. This would have been stale except for the officer's statements that, in his training and experience, pedophiles own and often retain deviant movies. The officer's "training and experience" is not a magically curative incantation, but here the officer had many years of experience in investigating child sex cases and many hours of training in such investigation. State v. Daniels

Stop - Unlawful Extension - Ehret/Toevs

Defendant's consent to search his car was invalid where, seconds after he was told he was free to go, the officer asked for consent. A continuous show of police authority constitutes conduct significantly beyond that accepted in ordinary social intercourse and negates an officer's statement that a person is "free to go". Particularly when the show of authority occurs just after a traffic stop. See Rodgers/Kirkeby. State v. Alvarez


The officer stopped defendant on his bicycle, let him go and then when he was a block away, asked casually if he could speak to him again. The client stopped and agreed. There wasn't a continuous show of authority so it wasn't an extended stop. And the casual request to talk to defendant wasn't a stop because it would be perceived as nonoffensive conduct if it occurred between ordinary citizens. State v. Deneen

Restitution - Future Treatment

A court errs in ordering restitution for future treatment unless it is "reasonably predictable and easily measurable". Here there was no evidence regarding future treatment at all. Thus, the court erred in ordering restitution. State v. Powell