Oregon Appellate Court, February 10, 2021

by: Rankin Johnson • February 24, 2021 • no comments

Summarized by Rankin Johnson, OCDLA

FIREARM OFFENSES - Defenses

Defense applicable to felony offense of felon in possession of a firearm, for certain felony convictions more than fifteen years old, does not apply to misdemeanor offense of unlawful possession of a firearm. Affirmed.

State v. Burris 309 Or App 167 (February 10, 2021) (Egan) (Washington County, Roberts)

CAPITAL DEFENSE - Constitutionality of death-penalty statutes

Petitioner could properly be sentenced to death under flawed statute corrected by Oregon Supreme Court after his crime. Affirmed.

The court also rejected several other arguments, including whether summary judgment is available in post-conviction proceedings, whether petitioner had been entitled to a change of venue, and whether prior counsel had been unqualified or inadequate.

McDonnell v. Premo 309 Or App 173 (February 10, 2021) (XXX) (Marion County, Bearden)

FAPA, STALKING, AND RESTRAINING ORDERS - Renewal

Trial court erred by renewing FAPA order, because circumstances had changed since issuance, the parties interacted without incident over parenting time, and no evidence showed that respondent posed a continuing threat to petitioner. Reversed.

J.N.D v. Dehkordi 309 Or App 198 (February 10, 2021) (Armstrong) (Washington County, Raines)

EVIDENCE - Referring to complaining witness as 'victim.'

It it impermissible vouching for witnesses to refer to the complaining witness as the victim. Reversed.

The Court of Appeals held that the prosecutor could use the terms 'victim' and 'disclosure' in opening, but that use of the term 'victim' by police-officer witnesses was improper and harmful. It also reversed convictions based on nonunanimous verdicts.

State v. Avdeyev 309 Or App 205 (February 10, 2021) (Ortega) (Marion County, Abar)

SEARCH AND SEIZURE - Conduct constituting stop

Passenger in stopped car was stopped when deputy directed her to "keep her hands where [he] could see them." Reversed.

The court noted that the deputies' behavior in effecting the stop might have led the occupants of the car to doubt whether the stop was for a traffic offense, and, thus, the rule that passengers in a car stopped for a traffic infraction might not apply, and might not have survived recent changes in the law. The court did not reach that issue.

DeVore, dissenting, would have held that defendant, a passenger, was not stopped, either by the traffic stop or by the request that she keep her hands in view.

State v. Soto-Navarro 309 Or App 218 (February 10, 2021) (Lagesen, DeVore dissenting) (Washington County, Wipper)

DEFENDANTS STATEMENTS - Interrogation

Confronting defendant with evidence of his guilt after he asserted his right to counsel was improper interrogation. Reversed.

State v. Dean 309 Or App 249 (February 10, 2021) (Shorr) (Clatsop County, Brownhill)

JUVENILE DELINQUENCY - Concurrent juvenile and criminal proceedings

Indictment alleging Measure 11 offenses divested juvenile court of jurisdiction over fifteen-year-old. Affirmed.

The Court of Appeals reversed some convictions because the trial court improperly excluded, as vouching, defense expert testimony that CARES Northwest often failed to follow its interviewing guidelines. Expert testimony that helps the fact-finder to evaluate credibility is not vouching.

State v. Smith 309 Or App 268 (February 10, 2021) (Shorr) (Washington County, Menchaca)

RESTITUTION - Qualifying expenses

Lost wages by victim's family members to attend, but not participate in, court proceedings, and to meet with prosecutor, did not support restitution award. Reversed.

The restitution court did not err in imposing restitution for wages lost by family members who gave victim impact statements. The Court of Appeals declined to consider as unpreserved whether lost wages for time spent handling the victim's estate, or food expenses, would support a restitution award.

State v. Skeen 309 Or App 288 (February 10, 2021) (Aoyagi) (Klamath County, Wogan)