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Go here to see a list of:

2021 Case Summaries by Topic

2020 Case Summaries by Topic

2019 Case Summaries by Topic

2018 Case Summaries by Topic

2017 Case Summaries by Topic

2016 Case Summaries by Topic

2015 Case Summaries by Topic


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Oregon Appellate Court - February 27, 2013

by: Jevans and Abassos • February 27, 2013 • no comments

  • 'The State Only Has to Return Seized Weed If the Case Is Dismissed on the Merits
  • Speedy Trial—Time Spent By the Defense Pursuing Contempt Charges is Attributable to the Defense
  • Merger—Animal Abuse 1 and Aggravated Animal Abuse 1
  • Merger—Same Statutory Provision—Animal Abuse 1
  • A Car’s Cracked Windshield Does Not “Endanger” Others
  • Limited Remand Does Not Preclude Pretrial Motions in PCR Case
→ read the full summaries...

Oregon Appellate Court - February 21, 2013

by: Jwestover and Abassos • February 22, 2013 • no comments

  • Encouraging Child Sexual Abuse I—Downloading = Duplicating
  • Circumstantial Evidence to Prove Venue
  • The 90 day technical PPS sanction limitation in former OAR 235-11-004(3) applies to offenders on lifetime PPS
→ read the full summaries...

United States Supreme Court - February 19, 2013

by: Jwestover and Abassos • February 20, 2013 • no comments

  • Police Authority to Detain a Person on a Search Warrant is Limited to Immediate Vicinity of Search
  • SCOTUS Weighs in on the Reliability of Drug Dog Sniff Tests in the Field
→ read the full summaries...

Oregon Appellate Court - February 13, 2013

by: Jevans and Abassos • February 13, 2013 • no comments

  • Automobile Exception Applies Only When the Car is Mobile After Police Suspect It To Be Involved in Crime
  • A Waiver of Trial by Jury Must Be Supported by Evidence that the Waiver is Knowing and Voluntary
  • PCR - Prejudice
  • Vouching Not Admissible – Even in Support of a Medical Diagnosis
  • Evidence Admitted Despite Objection is not Cumulative when Re-Admitted on Cross Examination
  • Sex Abuse II Can Be Lesser-Included of Sodomy I
→ read the full summaries...

Oregon Supreme Court - February 7, 2013

by: Jwestover and Abassos • February 7, 2013 • no comments

  • Judge Censured for Hostility Toward Defendant
→ read the full summaries...

Oregon Appellate Court - February 6, 2013

by: Jwestover and Abassos • February 6, 2013 • no comments

  • Three Strikes Sex Offense Law (ORS 137.719)—What’s a Prior Sentence?
  • Expungement—A Non-Traffic Violation is a Conviction
  • Warrantless Entry to Land—Absence of a “No Trespassing” Sign
  • Enhancement—Commercial Drug Offenses
  • Uncharged Sexual Conduct Between Defendant and Child Victim
  • If a Witness Waives Privilege, the Protections of OEC 513 are also Waived
  • The Maximum Sentence on any Crime is the Statutory Maximum
  • Merger—Sufficient Pause—Assault
→ read the full summaries...

Oregon Appellate Court - January 30, 2013

by: Jwestover and Abassos • January 31, 2013 • no comments

  • Threat to Bring Gun to School Was Sufficient to Justify Search of Backpack, State v. A.J.C.
  • Denial of Motion for Relief from Default Not Reviewable by Court of Appeals, State v. Nelson
  • PCR Petitions Must be Supported by Documentary Evidence, Ross v. Franke
  • PCR Documents Need only “Tend” to Support Claim, Ogle v. Nooth
→ read the full summaries...

Oregon Appellate Court - January 16, 2013

by: Jwestover and Abassos • January 16, 2013 • no comments

  • Self-Representation May Not Be Denied “In Best Interest of Defendant”
  • Affidavit Insufficient for Warrant to Search Residence
  • No Subject-Matter Limitations on Officer Questions
  • A Statement of Suspicion is Not a Stop
  • Reasonable Suspicion – Drug Trafficking
  • Expungement – Criminally Negligent Homicide Not Eligible
  • “Exhaustion” Constitutes “Illness” For Delaying DMV License Suspension Hearings
→ read the full summaries...

Oregon Supreme Court - January 10, 2013

by: Jwestover and Abassos • January 10, 2013 • no comments

The Hall test is modified. Consent is no longer invalid merely because it occurs during an illegal stop. The consent must now be the product of exploited illegality in the sense that either the consent was involuntary or that officers took advantage of information illegally gained in order to gain consent.

→ read the full summaries...

Oregon Appellate Court - January 9, 2013

by: Jwestover and Abassos • January 9, 2013 • no comments

  • An Order Denying DNA Testing is Not Appealable
  • Statutory Speedy Trial Rights Start with Formal Charges by the District Attorney
  • Dependency - Public Indecency + Failure to Complete Treatment Does Not Equal a Risk of Harm
  • DUII Diversion – Ineligibility for Prior DUII – Ex Post Facto
  • Consent is Involuntary When Induced by a False Promise of Immunity
→ read the full summaries...

Oregon Appellate Court - December 27, 2012

by: Jwestover and Abassos • December 27, 2012 • no comments

  • Sentencing – Murder – The McClain Window
  • Delinquency – Judicial Authority to Dismiss
  • DUII – Request for Independent Blood Test – Reasonable Opportunity
  • Dependency – Findings at Permanency Hearing – Preservation
  • PCR – Motion for Relief from Summary Judgment
  • Remedy – HB 3508 supplemental judgment of Ineligibility
  • Merger – Theft of Car and Theft of the Car’s Parts Merge
  • Merger – UUV and PSV Merge
→ read the full summaries...

Oregon Appellate Court - December 19, 2012

by: Jwestover and Abassos • December 19, 2012 • no comments

  • Is It a Search? - Defendant’s Intent to Exclude General Public From Private Property- State v Roper
  • Consent to Search – Mere Acquiescence- State v Jepson
  • Consent to Search – Not Mere Acquiescence- State v Brock
  • Stop vs Mere Conversation- State v Thompson
  • Contempt is Not a Conviction- State v Karimzadeh
  • Dependency – Change from APPLA to Termination- DHS v CL
  • Dependency – ICWA Active Efforts Not Required When Plan is Adoption- DHS v WHF
→ read the full summaries...

Oregon Supreme Court - December 13, 2012

by: Abassos • December 13, 2012 • no comments

  • Admissions of a Party Opponent - Dependency
→ read the full summaries...

Oregon Appellate Court December 12, 2012

by: Erick Tobias and Abassos • December 12, 2012 • no comments

  • Jury Instructions > Self-Defense Instruction When Defendant Has Not Argued Self-Defense
  • The Federal Copyright Act Preempts ORS 164.865, Unlawful Sound Recording
  • Speedy Trial > Lack of Judicial Resources May Justify Delay When Adequately Explained
  • Appellate Review > Guilty Plea
  • Vertical Proportionality > Felony vs Lesser Included Misdemeanor
  • Speedy Trial > Implicit Consent to Delay
  • PCR > Inadequacy of Counsel - Failure to Argue Merger
→ read the full summaries...

Oregon Appellate Court December 5, 2012

by: Erick Tobias and Abassos • December 5, 2012 • no comments

Appellate Ct Will Remand for a Hearing on Good Cause When a Court Imposes a Restitution Judgment Past 90 days.

When a court imposes a supplemental restitution judgment past 90 days without a finding of good cause, the appropriate appellate disposition is not to reverse the judgment outright but to remand for a determination of whether good cause existed at the time of the order. Here, the court ordered restitution 104 days after entry of the original judgment without ever holding a hearing, and the court remands. State v. Beckham , __ Or App __ (2012).

Other Bad Acts > Evidence of Plan > Concurrence of Common Features

To get a prior bad act in as evidence of plan requires such a concurrence of common features between the prior bad acts and the charged conduct that "the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations." Here, defendant was charged with sexual abuse and the state offered the abuse of the victim's two sisters as evidence of plan. The court holds that sister A's testimony was admissible because both she and the victim viewed defendant as a father, were groomed by defendant with playful physical contact, and were home alone while their mother was at work when victimized. Conversely, Sister S's testimony had insufficient concurrence of common features because S was older, didn't view defendant as a father, and was not groomed by defendant. State v. Febuary , __ Or App __ (2012).

Identity of the Victim is Not Material to the Offense of Identity Theft

An indictment for identity theft need not identify the victim because identity of the victim is not material to the offense. The material element is that the identification has to be personal. Therefore, where the indictment erroneously identified a company, the Oregon Department of Transportation, as the victim but presented evidence at trial that the defendant obtained personal identification of an employee of ODOT, the variance is immaterial. State v. Kowalskij , __ Or App __ (2012).

Some Income is All That is Required to Sentence a Defendant to Pay Attorney Fees

A court may find that a defendant "is or may be able to pay" attorney fees when a defendant indicates that he has "some income." Evidence that the defendant received disability income was sufficient to impose a $400 attorney fee. State v. Eshaia, __ Or App __ (2012).

A Defendant Waives his Right to Speedy Trial at the Commencement of the First Trial

A defendant may not make a speedy trial objection, under ORS 135.747, after defendant's first trial commences. Thus, when the defendant moved for dismissal after a mistrial but before his second trial, he had already waived his right to a speedy trial. State v. Contreras, __ Or App __ (2012).

"Physical Evidence of Abuse" in Sexual Abuse Diagnoses

Fecal matter may constitute "physical evidence of abuse" supporting a diagnosis of sexual abuse that falls outside the holding of State v. Southard, 347 Or 127 (2009), "when (1) the significance of [the fecal matter] is 'the sort of complex factual determination that a lay person cannot make as well as an expert,' (2) the [fecal matter] is corroborative of the type of abuse actually alleged, and (3) the medical expert actually relies on the [fecal matter] in making a diagnosis of sexual abuse." Here, a nurse practitioner diagnosed the child, A, with sexual abuse, relying upon A's statements in an interview and the fact that A's mother had discovered fecal matter on the floor, consistent with the alleged abuse. A's medical evaluations revealed no discernible physical trauma, so the fecal matter "gained heightened significance at trial." State v. Ovendale, __ Or App __ (2012).

Disproving a Choice of Evils Defense - Failure to Perform the Duties of a Driver

Evidence that a defendant attempted to leave the scene of an accident before a threat to his safety materialized, is sufficient to disprove defendant's choice of evils defense. Here, defendant was charged with failure to perform the duties of a driver for hitting a pedicab. The driver of the pedicab refused defendant's offer of $100 to allow him to leave the scene. Defendant nonetheless attempted to leave. As he did so, a third party hit his car several times with a metal object. The timing of his attempt to leave, along with evidence that he smelled of alcohol, appeared intoxicated, and offered the driver $100, showed that defendant was attempting to leave before it became necessary to avoid a threatened and imminent injury. State v. Cespedes-Rodriguez, __ Or App __ (2012).

PCR - Failure to Make an Argument

Trial counsel's performance was deficient where he failed to make the right argument as to why his evidence was admissible. He argued that the child victim's prior allegations of abuse were admissible as prior false allegations. However, his theory could not have been that all prior allegations were false because trial counsel did not contest the physical evidence regarding tearing of the victim's hymen. In fact, the actual defense theory was that prior abuse explained the physical evidence. But he did not argue in liimine that the prior allegations were admissible to explain the physical evidence, as allowed by OEC 412. Thus, the evidence was kept out, defendant was convicted and trial counsel was deficient. Ayer v Coursey

Stop - Extension

The following evidence is insufficient for reasonable suspicion to extend a traffic stop into a drug trafficking investigation:

· Defendant was nervous and evasive

· he did not appear to have any luggage, and

· he was driving a car that he had recently purchased with cash, for which he did not have registration or insurance information.

Nervousness during a traffic stop contributes little weight, if any, to reasonable suspicion. The superficial appearance of no luggage has no weight because there were lots of places the officer didn't look that could have held luggage. Even if there were no luggage it provides little to no evidence of criminal activity. Finally, the recent purchase of the vehicle provides little to no evidence of drug trafficking. Taken separately or together, the officer did not have reasonable suspicion to extend the traffic stop and request consent to search. State v Espinoza-Barragan

Stalking Order > "I will have to confront you" is not a threat of violence

Unwanted contact for the purposes of a stalking protective order must include an unequivocal threat of violence that is "objectively likely to be acted upon." Brown v. Roach, 249 Or 579 (2012). A text message from defendant stating that "I will confront you" is not objectively likely to be followed by violent or unlawful acts. V.A.N. v. Parsons, __ Or App __ (2012).

Stalking Order > Sufficiency of Evidence

Evidence is sufficient to support a stalking protective order (SPO) where defendant twice dry-fired a gun at complainant and later went to complainant's house trying to get him to come outside. Defendant and complainant were both employees of the DEA. Because defendant's intent was to intimidate complainant, the conduct was outside the scope of his "official duties" and therefore the court may consider the incidents. The two incidents constituted unwanted contacts because complainant had previously told defendant he no longer wanted "anything to do with [him]." That complainant showed up at work the following day knowing defendant would be there is irrelevant because the two had no further contact while defendant was employed at the DEA. However, only the first dry-firing incident is a qualifying contact for the purposes of issuing the SPO because only the first caused complainant subjective alarm. At a later date, defendant stopped his motorcycle in front of complainant's house and tried to get him to come outside. While complainant did not testify explicitly that he was alarmed by the contact, he did state that he believed that defendant was armed and trying to get him to come outside for some type of confrontation. Complainant also stated that his wife called 9-1-1. The first dry-firing incident and the contact at complainant's home constituted two actionable contacts sufficient for issuing the SPO. D.A. v. White, __ Or App __ (2012).

Dependency > A history of drug abuse does not "current endangerment" make

When the only evidence of recent drug abuse is dad's confession that he hasn't used in 11 months, there is insufficient evidence to support a finding that the child is currently endangered. Even where there is evidence that dad regularly used meth 2 1/2 yrs prior to the hearing. Dept. of Human Services v. M.Q., __ Or App __ (2012).

Per Curiam:

- Evidence was insufficient to support conviction for fourth-degree assault constituting domestic violence because there is no evidence that defendant and victim (the son of defendant's live-in girlfriend) were family or household members. State v. Sturgeon.

Oregon Supreme Court November 30, 2012

by: Stephanie Clark and Abassos • November 30, 2012 • no comments

A victim does not have the right to withhold records necessary to preserve the trial court record for appeal.

A victim has the right to refuse discovery requests under Article I, section 42. But when a trial court holds that a defendant cannot gain access to a victim's discovery, the victim cannot withhold a sealed copy of the discovery from the record to prevent review. Here, the trial court prohibited defendant's access to a copy of the victim's Google search on the night of the alleged sexual assault. The Court holds that the victim must provide a sealed copy to preserve appeal of the trial court's decision. State v. Bray, __ Or __ (2012).

Oregon Supreme Court November 29, 2012

by: Stephanie Clark and Abassos • November 29, 2012 • no comments

The admissibility of eyewitness identifications is determined by reliability and grounded in the evidence code.

When a defendant moves to exclude an eyewitness identification, the state bears the burden of proving the ID is reliable. The state must do so by establishing the facts necessary for admissibility under the evidence code-i.e. that the eyewitness has personal knowledge of the matters to which he or she will testify and the identification was rationally based on the witness's first-hand impressions and will be helpful to the jury. If the state meets its burden, the defense must show that the probative value of the ID is substantially outweighed by the risk of unfair prejudice. This rule is a revision to the State v. Classen test for admissibility, which required a trial court to first determine whether an identification was made under suggestive circumstances before deciding whether it was independently reliable. Two cases consolidated for the opinion were decided under the new rule today.

In State v. Lawson, Mrs. Hilde identified the defendant as her attacker. However, she only saw the person's profile for a few seconds because he placed a pillow over her face. When questioned initially at the hospital she told police that she could not identify her attacker and she was unable to pick him from a photographic lineup. It was only after Mrs. Hilde first saw the defendant in a newspaper photo that said he was the suspect and then at a preliminary hearing, that she was able to positively ID him. The Court held that the lack of personal observation raised serious concerns that the ID was reliable and not a product of suggestive circumstances. Remanded for retrial.

State v. James on the other hand passes the new test. Two men robbed Safeway, one blocking the exit and fighting off the managers while the other ran away with the booze. The report to police included great detail of the suspects:"a fairly large guy; Indian male six feet to six feet two inches, 220 pounds, wearing baggy blue jeans, white tank top tee shirt"; and a "small Indian male approximately five feet tall, 110 pounds, wearing a black coat with a hood and baggy blue plants, carrying a black back pack." Five hours later a police officer picked up two males matching the description, drove them to Safeway, and the managers identified them as the robbers. The Court held that the ID was based on personal knowledge and up-close personal observation. Although the police just showing up with defendants may have been suggestive, the detailed description provided sufficient evidence that the identification was based on the witnesses' original observation. State v. Lawson/James, __ Or __ (2012).

Scientific Evidence > Physical Abuse Diagnosis That Identifies the Perpetrator

A physician's conclusion that the defendant caused a child physical injuries did not meet the requirements for admissibility as scientific evidence because it did not have sufficient indicia of scientific validity to be helpful to the jury under OEC 702. Here, in a prosecution for child abuse, the trial court admitted the expert testimony of, and a written report by, a CARES physician. The expert diagnosed the child, C, as a victim of child abuse and concluded that "[C] was physically abused by [defendant]." The expert's conclusion was inadmissible as scientific evidence because her testimony did not sufficiently describe the techniques that she had used to identify the perpetrator. To the extent she did describe her techniques, her testimony also failed to demonstrate that those techniques were generally accepted, consistent with recognized safeguards to increase diagnostic accuracy, or supported by literature in the field. State v. Sanchez-Alfonso, __ Or __ (2012).

Oregon Appellate Court November 15, 2012

by: Stephanie Clark and Abassos • November 15, 2012 • no comments

A meth conviction from 4 yrs ago plus personal amount possession now does not create pc for a search warrant

Officers obtained a search warrant for defendant's house based solely on:

1. A four-year-old conviction for possessing a commercial amount of methamphetamine.

2. A recent consent search by defendant's probation officer that found a half gram of meth and a dirty pipe in defendant's house.

Such evidence, without more, did not provide probable cause to believe that defendant would have additional methamphetamine in other parts of his house. State v. Huff, __ Or App __ (2012).

Dependency - Permanency Judgment - Harm vs Severe Harm

"Under the totality of the circumstances as they existed at the time of father's motion, DHS established that there was a reasonable likelihood of harm to M's welfare such that it was not error to continue jurisdiction. M did not meet father until she was eight years old and had been in foster care for more than two years. . . M strongly preferred to continue to live in her foster home and was not aligned with father. Further, there was evidence that a sudden transition from her current placement with her "psychological" grandparents and into father's home could be harmful to M."

However, "the record does not support the juvenile court's determination that placement with father within a reasonable time would cause M severe mental and emotional harm. Although there was evidence that any transition would be very difficult and would require services for M and father, that prospect is not unlike the circumstances in most dependency cases where a change in placement will be difficult for the child." Thus, the plan should have been for reunification, not guardianship. Permanency judgment reversed. DHS v JN, __ Or App __ (2012).

Per Curiams

  • Civil Commitment - The record lacks legally sufficient evidence to support a finding that the defendant was a danger to others as a result of a mental disorder. State v. M.J., __ Or App __ (2012) (per curiam).
  • Unlawful use of a weapon - The court affirms based on State v. Ziska, which held that "'use' in ORS 166.220(1)(a) describes both the actual use of physical force and the threat of immediate use of physical force." State v. Garza, __ Or App __ (2012) (per curiam).

Oregon Supreme Court November 8, 2012

by: Stephanie Clark and Abassos • November 8, 2012 • no comments

Standard for Criminal Negligence

A criminally negligent state of mind does not require "seriously blameworthy" conduct or that a defendant's conduct shows an "indifference to consequences"; it requires only that the risk of a particular result from defendant's conduct be "substantial and unjustifiable" and that failure to be aware of said risk is a "gross deviation" from a reasonable standard of care. Whether conduct exhibits a criminally negligent state of mind is heavily fact-dependent. Here, defendant was guilty of criminally negligent homicide in a vehicle collision where facts showed he was more than "merely inattentive": he was driving in a known "safety corridor" under hazardous conditions, he was a professional driver who should have been aware of these conditions, several witnesses observed him driving unsafely prior to the collision, and the collision was avoidable.

The Oregon Supreme Court also affirmed State v Betts (384 P2d 198, 1963) in noting that evidence of prior conduct logically permits an inference of an ongoing state of mind.

State v Lewis, ___Or___ (2012)

Motion for reconsideration allows minor change in previous ruling for purposes of habeas corpus

Upon petition for reconsideration, the Oregon Supreme Court modified its ruling in State v.Leistiko, 352 Or 172, 282 P3d 857 (2012) to make clear that defendant raised two arguments on his petition for review, although they were not later briefed on the merits, for purposes of subsequent habeas relief. Otherwise the opinion is undisturbed. State v Leistiko ___Or___ (2012)

Oregon Appellate Court November 7, 2012

by: Stephanie Clark and Abassos • November 7, 2012 • no comments

Increase in "Look-Back" Period for DUII Diversion Is Not an Ex Post Facto Violation

The five-year increase in the "look-back" period for DUII diversion eligibility does not result in "greater or additional punishment" for DUII such that the increase is an ex post facto violation. The change in eligibility requirements was not an increase in "punishment" because the primary purpose of the change was to be a procedural alternative to punishment, not to change the crime of or sentence for, DUII. State v. Carroll, __ Or App __ (2012).

Particularity Requirement for Admitting Abuse-Victim Hearsay

The pretrial notice required under OEC 803(18a)(b) for admitting an abuse victim's out-of-court statements must identify the particular statements to be offered. Here, the state violated the rule by only providing copies of reports and stating that the reports "contain the particulars of statements made by [victim] that the state intends to offer." State v. Bradley, __ Or App __ (2012); see also State v. Wood, __ Or App __ (Oct. 24, 2012).

Aiding-and-Abetting After-the-Fact Is Not a Crime

Oregon law does not recognize an aid-and-abet after-the-fact theory of criminal liability because "the aid-and-abet statute plainly applies only to conduct prior to or during the commission of a crime." Here, the trial court erroneously convicted defendant of fraudulent use of a credit card for helping the principal actor escape arrest after defendant learned of the theft and misuse of the credit card. The court exercises its discretion to correct the trial court's unpreserved error and remands for a new trial because defendant "stands convicted of something that is not a crime." State v. Barboe, __ Or App __ (2012).

Merger, Valuation of Stolen Property, and Restitution in Juvenile Proceedings

The court affirms the juvenile court's judgment of jurisdiction for acts that, if committed by an adult, would constitute first-degree arson, aggravated first-degree theft, and two counts of second-degree burglary.

  • The two counts of burglary do not merge because youth had sufficient time to renounce his criminal intent between entering a school building with intent to commit theft and later reentering with intent to commit arson.
  • ORS 164.115(1), governing the valuation of property under the theft statutes, does not bar the court from considering the cost of replacements as a factor in determining fair-market value. Here, the juvenile court properly considered the cost of replacement computers in finding that the stolen property was worth at least $10,000 as required for aggravated first-degree theft.
  • The term "victim" for restitution purposes in juvenile proceedings includes insurance companies. "Victim" is given its definition in the Criminal Code, not the juvenile code.

State v. G.L.D., __ Or App __ (2012).

Stop - Reasonable Suspicion

An order to come out of a house with your hands up is a stop. Here, there was reasonable suspicion for the stop where defendant entered a house occupied by two murder victims, didn't match the description of anyone who lived there, and didn't answer the telephone when officers called the house. Also, officers had probable cause to enter the house since there was probable cause to believe that there was evidence of recent murders inside and that it was at risk of being destroyed. And, for the same reasons, there were exigent circumstances that required the officers to secure the house. The officers gained probable cause to arrest when defendant came out of the house and they noticed blood on his pants. Finally, it was not a violation of Miranda when defendant asked if he needed an attorney and the officers responded that "It's up to you." Defendant's statement was equivocal and officers responded appropriately. State v. Hudson, __ Or App __ (2012).

Dependency > Preservation > Failure to Make Required Findings

Because a dispositional order is required at the conclusion of a dependency hearing, the contesting party must object at that time if a juvenile court fails to include statutorily required findings under ORS 419B.340(2) in order to preserve the issue for appeal. DHS v. C.C.

Dependency > Subject Matter Jurisdiction

In a custody case involving multiple jurisdictions, ORS 109.741(1)(b) confers jurisdiction to Oregon when no other state has jurisdiction under paragraph (1)(a) and both subparagraphs (1)(b)(A) and (1)(b)(B) apply. Here, mother had "a significant connection" with Oregon because she:

  • had belongings in Oregon
  • had lived in the state for four years
  • received prenatal care in Oregon
  • applied for and collected public assistance in the state.

Furthermore, mother's contacts with health care institutions and professionals, her interactions with DHS, and her erratic conduct constituted relevant evidence "concerning the child's care, protection, training and personal relationships" in Oregon under ORS109.741(1)(b)(B). Therefore, the Oregon court had jurisdiction. DHS v. S.C.S

Dependency > Continued Jurisdiction

A court may not base an order for continued jurisdiction on unalleged facts unless the underlying petition provided sufficient notice of what the parent must do to prevent continued jurisdiction. Here, the petition stated that the mother had alcohol problems and pleaded guilty to assault and strangulation. Thus, mother had sufficient notice that her anger problems were at issue. DHS v. M.M.B.

Failure to Demand a Speedy Trial

Where a defendant is in prison and knowingly fails to demand trial, the delay is attributable to the state, but it is otherwise reasonable under ORS 135.747. Here, defendant failed to appear for two separate court dates for a misdemeanor DUII. He was arrested on a bench warrant, and shortly thereafter, his probation on an unrelated charge was revoked. While in the DOC, defendant waited nine months to demand trial. The court holds that because defendant knowingly failed to demand, the nine-month delay was reasonable, and the cumulative delay of 16 months attributed to the state was also reasonable. State v. Bircher.

A Superficial Bruise Does Not Qualify as a Physical Injury

For the purposes of first-degree criminal mistreatment, "physical injury" means "impairment of physical condition or substantial pain." ORS 161.015(7). In turn, "impairment of physical condition" requires "harm to the body that results in a reduction in one's ability to use the body or a bodily organ for less than a protracted period of time." State v. Higgins, 165 Or App 442(2000). Here, defendant admitted to spanking her 16-month-old across his buttocks, which made the child cry and caused a bruise. However, the child's doctor testified that the bruise was 'superficial,' and the child had full range of motion. Thus, there was no evidence that the bruise was a 'physical injury' for purposes of criminal mistreatment.State v. Wright

MJOA - Variance between Indictment and Evidence

Variance between the indictment and the evidence at trial is prejudicial, "[i]f thedefendant would need to develop a different argument to contend with the variance." State v. Boitz, 236 Or App 350, 356 (2010). Here, defendant was charged with hindering prosecution. The indictment alleged that the defendant "did***prevent, by means of deception, the discovery or apprehension of Shane Culp." This differed from the statutory language and jury instruction which states that a person hinders prosecution where he, "[p]revents or obstructs, by means of * * * deception, anyone from performing an act which might aid in the discovery or apprehension ofsuch person[.]" Defendant's argument was that defendant did not prevent sheriffs from apprehending Shane Culp since the sheriffs decided that defendant was lying and ultimately arrested him. Instead, defendant prevented the sheriffs from immediately searching the house which would satisfy the statute but not the indictment. Thus, the variance in this circumstance was prejudicial, and the court reverses. State v. Hansen

DMV Can't Suspend a License Twice for the Same Failure to Pay a Fine

Where the DMV has already suspended a person's license for the maximum statutory period for failure to pay traffic fines, the DMV cannot re-suspend the license because the driver continues not to pay the fine. Here, because defendant had already been suspended for the statutory period, DMV lacked the authority to suspend his license again, and the appropriate remedy is exclusion of the later suspension order. Richardson v. DMV.

Per Curiams

  • State v. Freeman: The automobile exception authorizes a warrantless search of a vehicle but does not extend to body searches of the vehicle's occupants.
  • State v. K.B.G.: Civil commitment: Evidence was insufficient to support a finding that defendant was a danger to others and could not provide for her basic needs.
  • State v. Withnell: The defendant was tried jointly with the defendant in today's case State v. Hansen, and the evidentiary record is identical. Thus, the trial court's denial of defendant's motion for judgment of acquittal is reversed for the reasons stated in Hansen.