Oregon Appellate Ct - Oct 26, 2016

Revision as of 14:25, October 29, 2016

State v. Donathan, 281 Or App 781 (2016) (Armstrong, P.J.)

State v. G.A.K., 281 Or App 815 (2016) (Sercombe, P.J.)

State v. Netzler, 281 Or App 822 (2016) (Sercombe, P.J.)

State v. Henley, 281 Or App 825 (2016) (Egan, J.)

Indictments - Indictment Subject to Heightened Pleading Requirements for ORICO Offenses

In charging under ORICO, ORS 166.720(6) requires the state to allege the individual thefts that defendant was accused of conspiring to commit with particularity and therefore the trial court erred when it denied defendant’s demurrer and motion in arrest of judgment. Note, this case has the same holding as State v. Stout, 281 Or App 263 (2016). Defendant and Stout were co-defendants accused of conspiring to steal farm equipment.

State v. Holloway, 281 Or App 837 (2016) (Tookey, J.)

First-Degree Burglary - Defendant's Own Unlawful Overnight Use of Building Not Sufficient to Render the Building a Dwelling

The court reverses defendant first-degree burglary conviction and holds that defendant’s own overnight occupancy of a boat was not sufficient to show that the boat was a “dwelling.” Police responded to a report that defendant was breaking into boats docked at a marina. Police found defendant in a boat called the “Amy M.” As he was being arrested, defendant told police that he had stayed overnight in that boat on several occasions. At trial, the trial court denied defendant’s MJOA, agreeing with the state’s contention that defendant’s use of the boat as overnight lodging made that boat a dwelling.

The court conducts a statutory analysis and concludes that defendant’s own use of the boat is not alone sufficient to make that boat a dwelling. Although the text of the statute is ambiguous, the context and legislative history show that “the legislature did not intend for a defendant’s own prior, unlawful habitation in a building to convert that building into a dwelling[.]”

State v. Davis, 281 Or App 855 (2016) (Shorr, J.)

Juvenile Dependency - Lack of Service of Dependency Petition

The juvenile court erred when it entered a combined jurisdictional and dispositional judgment at a hearing where mother did not appear and had not been properly served with the summons and dependency petition. DHS concedes that the juvenile court erred in proceeding with the case in her absence and the court reverses both the jurisdictional and dispositional judgment for both mother and father.

DHS v. C.M.R., 281 Or App 886 (2016) (per curiam)