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Oregon Appellate Court--March 6, 2019

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by: Rankin Johnson IV • March 12, 2019 • no comments

Summarized by Rankin Johnson, OCDLA

JOINDER AND SEVERANCE - Evidence relevant to one charge and prejudicial to another

Trial court did not err in admitting evidence of prior DUIIs, relevant to reckless driving but irrelevant and prejudicial to DUII. Affirmed.

State v. Schmidt 296 Or App 363 (March 6, 2019) (Egan) (Douglas County, Marshall)

FAPA AND STALKING ORDERS - Imminent danger of abuse

Two instances of "involuntary sex" while petitioner and respondent were married and lived together did not show that petitioner was at risk of further abuse following separation. Reversed.

M.A.B. v. Buell 296 Or App 380 (March 6, 2019) (Hadlock) (Washington County, Thompson)

JOINDER AND SEVERANCE - Necessary allegations

Indictment did not allege basis to join sex offenses and witness tampering. Remanded for further proceedings.

Because the defendant entered a conditional guilty plea, the Court of Appeals did not consider prejudice.

State v. Miller 296 Or App 421 (March 6, 2019) (DeHoog) (Linn County, McHill)

SEARCH AND SEIZURE - Reasonable suspicion of timber offense

Police officer lacked reasonable suspicion that firewood in defendant's truck was being transported unlawfully. Remanded for further proceedings.

A police officer stopped defendant because he had a load of firewood with no visible tag or permit. The Court of Appeals explained that a tag or permit is necessary when transporting wood from the original harvest, but not when transporting from someplace else, and the stopping officer had no basis to believe the transport was from the site of the harvest.

State v. Fuller 296 Or App 425 (March 6, 2019) (DeHoog) (Crook County, Williams)

EVIDENCE - Conduct and demeanor as evidence

Pro-se defendant's conduct and demeanor while acting as counsel was not pertinent to his guilt, and the prosecutor's contrary closing argument was improper. Remanded for new trial.

The Court of Appeals explained that only sworn witness testimony and other things admitted as evidence are evidence. Defendant's conduct while questioning witnesses or otherwise acting as counsel was not sworn testimony, was not admitted, and therefore was not proper for the jury to consider.

State v. Stull 296 Or App 435 (March 6, 2019) (James) (Multnomah County, Roberts)

SENTENCING - Persons entitled to claim restitution

CARES is not a 'victim' entitled to restitution. Remanded for resentencing.

CARES provides counseling and other services to the victims of abuse, and does not seek payment from the victims. The Court of Appeals explained that providers of services such as CARES do not suffer economic damages when those services are necessitated by crime, but the victim who receives the services might.

State v. White 296 Or App 445 (March 6, 2019) (James) (Multnomah County, Hodson)

COMPULSORY PROCESS - Witness asserting privilege

Trial court did not err in declining to order witness who had plea agreement with state to testify and in excluding evidence of the plea agreement. Affirmed.

Defendant was one of multiple people charged with murder and other offenses. One of the others entered into plea agreements which required assertion of a Fifth Amendment privilege if the person was called as a witness by the defendant.

The trial court ruled that the defendant could not call the person as a witness if the person would assert a Fifth Amendment privilege. The trial court did not rule on whether the plea bargain was improper or whether any other evidence was admissible, and the Court of Appeals did not decide any such issue.

The trial court excluded the plea agreement under the evidence code. Defendant did not make any constitutional arguments, or seek to offer a redacted agreement, and accordingly the Court of Appeals did not consider any issue besides the evidence code.

State v. Weaver 296 Or App 453 (March 6, 2019) (Aoyagi) (Clackamas County, Wetzel)

CONTEMPT - Permissible sanctions

Trial court plainly erred by imposing probation and a probation fee for a contempt finding. Remanded for further proceedings.

Braatz v. Braatz 296 Or App 484 (March 6, 2019) (Per curiam) (Union County, West)