Blog:Case Reviews/Oregon Appellate Court, May 6 2020 - Revision history

Rankinjohnsonpdx@gmail.com at 22:39, May 11, 2020

2020-05-11T22:39:41Z

Rankinjohnsonpdx@gmail.com at 22:37, May 11, 2020

2020-05-11T22:37:02Z

Rankinjohnsonpdx@gmail.com: Created page with "

2020-05-11T22:31:09Z

Created page with " <summary hidden> POST-CONVICTION RELIEF - Ineffective assistance of counsel JURY INSTRUCTIONS - Concurrence instructions SENTENCING - Restitution EVIDENCE - Witness credibili..."

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<summary hidden>
POST-CONVICTION RELIEF - Ineffective assistance of counsel
JURY INSTRUCTIONS - Concurrence instructions
SENTENCING - Restitution
EVIDENCE - Witness credibility
CHARGING DOCUMENTS - Traffic citations
THEFT - Sufficiency of the evidence
TRIAL PROCEDURE - Jury waiver
PRE-TRIAL PROCEDURE - Forfeiture of animals
TRIAL PROCEDURE - Continuances and scheduling
</summary>

'''Summarized by Rankin Johnson, OCDLA'''

'''JURY INSTRUCTIONS - Concurrence instructions'''

Trial court plainly erred in failing to instruct that jurors voting to convict had to agree whether defendant acted as a principal or an accomplice. Reversed.

The court rejected the state's argument that, under the facts of the case, any error was harmless. The court also rejected defendant's argument that he was entitled to an instruction that he had been negligent with respect to the value of stolen property.

[https://link.ocdla.org/soll/A165177 State v. Stowell] 304 Or App 1 (May 6, 2020) (Armstrong) (Multnomah County, James)

'''SENTENCING - Restitution'''

By pleading guilty to unlawful use of a vehicle on a specific day, defendant did not preclude restitution based on damage to the vehicle that was not proved to have happened on that day.

[https://link.ocdla.org/soll/A166681 State v. Lobue] 304 Or App 13 (May 6, 2020) (Armstrong) (Lane County, Zennache)

'''EVIDENCE - Witness credibility'''

In sex-offense prosecution, credibility of five-year-old victim was jury question. Affirmed.

Defendant moved in limine to exclude testimony and out-of-court statements. When the court denied the motion, he conditionally pleaded guilty.

[https://link.ocdla.org/soll/A165944 State v. Rhamy] 304 Or App 28 (May 6, 2020) (Lagesen) (Linn County, Navotny)

'''CHARGING DOCUMENTS - Traffic citations'''

Traffic citation was defective because citing officer's name did not appear on it, but defect did not require dismissal. Affirmed.

[https://link.ocdla.org/soll/A166143 State v. Walker] 304 Or App 33 (May 6, 2020) (Lagesen) (Douglas County, Ambrosinsi)

'''THEFT - Sufficiency of the evidence'''

Claiming ownership of stolen tools was 'withholding;' a theory of theft. Affirmed.

Because defendant continued to claim ownership and did not offer to return the tools after being told they belonged to the victim, the trial court did not err by denying a motion for judgment of acquittal.

The court also held that a Washington burglary was a 'comparable offense' at an Oregon sentencing

[https://link.ocdla.org/soll/A144439 State v. Clifton] 304 Or App 39 (May 6, 2020) (Lagesen) (Polk County, Avera)

'''TRIAL PROCEDURE - Jury waiver'''

Trial court erred by refusing jury waiver on the grounds that other counts would still go to the jury. Reversed and remanded.

The Court of Appeals remanded with direction that the trial court consider whether to accept the waiver, considering proper factors. The Court of Appeals also held that the trial court erred by counting a Washington conviction in calculating criminal history.

[https://link.ocdla.org/soll/A165376 State v. Altamirano-Juarez] 304 Or App 47 (May 6, 2020) (Tookey) (Marion County, Bennett)

'''PRE-TRIAL PROCEDURE - Forfeiture of animals'''

Defendant was not entitled to a jury trial before his animals were forfeited. Affirmed.

Defendant's animals were impounded before his criminal trial for animal abuse. Because he did not pay a $75,000 bond for the cost of their care, they were ordered forfeit. In holding that he was not entitled to a jury trial, the Court of Appeals held that a claim for the cost of care by an animal care agency was not a claim that historically would have been tried to a jury. The majority compared it to a lien forfeiture or foreclosure, rather than a true forfeiture, and concluded that defendant had no right to a jury trial.

Shorr, dissenting, believed that it was a true forfeiture and the defendant was entitled to a jury trial.

[https://link.ocdla.org/soll/A166962 State/Klamath County v. Hershey] 304 Or App 56 (May 6, 2020) (Tookey, Shorr dissenting) (Klamath County, Janney)

'''TRIAL PROCEDURE - Continuances and scheduling'''

Trial court erred in setting trial for the following day for a pro-se defendant who was in custody and unable to obtain her file prior to trial. Reversed and remanded.

The matter had been pending for a year at the time of trial, with numerous failures to appear by the pro-se defendant. The defendant was arrested upon appearing for court and had not expected to be arrested. At trial, defendant attacked the chain of custody for the drug evidence at issue, and jury questions indicate that the jury was troubled by that issue. The Court of Appeals observed that a one-day continuance for the defendant to obtain her file might have been sufficient.

[https://link.ocdla.org/soll/A167823 State v. Johnson] 304 Or App 78 (May 6, 2020) (Tookey) (Umatilla County, Lieuallen)
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@@ Line 49: / Line 49: @@
 The court also held that a Washington burglary was a 'comparable offense' for purposes of sentencing.
-[https://link.ocdla.org/soll/A144439 State v. Clifton]  304 Or App 39 (May 6, 2020) (Lagesen) (Polk County, Avera)
+[https://link.ocdla.org/soll/A166439 State v. Clifton]  304 Or App 39 (May 6, 2020) (Lagesen) (Polk County, Avera)
 '''TRIAL PROCEDURE - Jury waiver'''

@@ Line 15: / Line 15: @@
 '''JURY INSTRUCTIONS - Concurrence instructions'''
-Trial court plainly erred in failing to instruct that jurors voting to convict had to agree whether defendant acted as a principal or an accomplice. Reversed.
+Trial court plainly erred in failing to instruct jury that jurors voting to convict had to agree whether defendant acted as a principal or an accomplice. Reversed.
 The court rejected the state's argument that, under the facts of the case, any error was harmless. The court also rejected defendant's argument that he was entitled to an instruction that he had been negligent with respect to the value of stolen property.
@@ Line 23: / Line 23: @@
 '''SENTENCING - Restitution'''
-By pleading guilty to unlawful use of a vehicle on a specific day, defendant did not preclude restitution based on damage to the vehicle that was not proved to have happened on that day.
+Although defendant pleaded guilty to vehicle offense on a specific day, restitution was not limited to  damage to the vehicle occurring on that day.
 [https://link.ocdla.org/soll/A166681 State v. Lobue]  304 Or App 13 (May 6, 2020) (Armstrong) (Lane County, Zennache)
@@ Line 37: / Line 37: @@
 '''CHARGING DOCUMENTS - Traffic citations'''
-Traffic citation was defective because citing officer's name did not appear on it, but defect did not require dismissal. Affirmed.
+Traffic citation was defective because citing officer's name did not appear on it, but defect was one of form and did not require dismissal. Affirmed.
 [https://link.ocdla.org/soll/A166143 State v. Walker]  304 Or App 33 (May 6, 2020) (Lagesen) (Douglas County, Ambrosinsi)
@@ Line 43: / Line 43: @@
 '''THEFT - Sufficiency of the evidence'''
-Claiming ownership of stolen tools was 'withholding;' a theory of theft. Affirmed.
+Claiming ownership of stolen tools was 'withholding;' a valid theory of theft. Affirmed.
 Because defendant continued to claim ownership and did not offer to return the tools after being told they belonged to the victim, the trial court did not err by denying a motion for judgment of acquittal.
-The court also held that a Washington burglary was a 'comparable offense' at an Oregon sentencing
+The court also held that a Washington burglary was a 'comparable offense' for purposes of sentencing.
 [https://link.ocdla.org/soll/A144439 State v. Clifton]  304 Or App 39 (May 6, 2020) (Lagesen) (Polk County, Avera)
@@ Line 73: / Line 73: @@
 Trial court erred in setting trial for the following day for a pro-se defendant who was in custody and unable to obtain her file prior to trial. Reversed and remanded.
-The matter had been pending for a year at the time of trial, with numerous failures to appear by the pro-se defendant. The defendant was arrested upon appearing for court and had not expected to be arrested. At trial, defendant attacked the chain of custody for the drug evidence at issue, and jury questions indicate that the jury was troubled by that issue. The Court of Appeals observed that a one-day continuance for the defendant to obtain her file might have been sufficient.
+The matter had been pending for a year at the time of trial, with numerous failures to appear. The defendant was arrested upon appearing for court. At trial, defendant attacked the chain of custody for the drug evidence at issue, and jury questions indicate that the jury was troubled by that issue. The Court of Appeals observed that a one-day continuance for the defendant to obtain her file might have been sufficient.
 [https://link.ocdla.org/soll/A167823 State v. Johnson]  304 Or App 78 (May 6, 2020) (Tookey) (Umatilla County, Lieuallen)
 {{wl-publish: 2020-05-11 15:31:09 -0700 | Rankinjohnsonpdx@gmail.com:Rankin  Johnson IV }}

Blog:Case Reviews/Oregon Appellate Court, May 6 2020 - Revision history

Rankinjohnsonpdx@gmail.com at 22:39, May 11, 2020

Rankinjohnsonpdx@gmail.com at 22:37, May 11, 2020

Rankinjohnsonpdx@gmail.com: Created page with " POST-CONVICTION RELIEF - Ineffective assistance of counsel JURY INSTRUCTIONS - Concurrence instructions SENTENCING - Restitution EVIDENCE - Witness credibili..."

Rankinjohnsonpdx@gmail.com: Created page with "