https://libraryofdefense.ocdla.org/Blog:Case_ReviewsOCDLA Library of Defense - Blog:Case Reviews [en]2022-01-26T23:53:59ZMediaWikihttps://libraryofdefense.ocdla.org/Blog:Case_Reviews/Oregon_Appellate_Court,_January_5,_2022Oregon Appellate Court, January 5, 2022Rankinjohnsonpdx@gmail.comhttps://libraryofdefense.ocdla.org/User:Rankinjohnsonpdx@gmail.com2022-01-07T18:13:57Z2022-01-07T18:13:58Z<p>EVIDENCE - Child-sexual-abuse hearsay exception
INTERFERENCE WITH MAKING A REPORT - Sufficiency
EVIDENCE - Business-records hearsay exception
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<p><b>Summarized by Rankin Johnson, OCDLA</b>
</p><p><b>EVIDENCE - Child-sexual-abuse hearsay exception</b><br />Importance: 2/5
</p><p>"Child-declarant," for purposes of the child-sexual-abuse hearsay exception, means a person younger than 18 at the time the statement was made - age at the time of trial is unimportant. Affirmed.
</p><p>A prior version of the OEC 403(18a) was more susceptible to defendant's interpretation, but that did not help in construing the current text. The child-declarant testified at trial, so the court's constitutional analysis was minimal.
</p><p>The court also reversed the convictions that were based on nonunanimous verdicts.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A173492">State v. Juarez-Hernandez</a> 316 Or App 741 (January 5, 2022) (Aoyagi) (Washington County, Bailey)
</p><p><b>INTERFERENCE WITH MAKING A REPORT - Sufficiency</b><br />Importance: 1/5
</p><p>A 'report,' for purposes of ORS 165.572(1), includes an ongoing conversation between a 911 caller and the dispatcher. Affirmed.
</p><p>The victim called 911 and gave her name, defendant's name, and the location before defendant took her phone. The court rejected defendant's argument that he did not interfere with the report because it had been made, noting that the dispatcher asked to talk to the victim after defendant took the phone.
</p><p>The court also rejected defendant's argument that the court should have given a special instruction about disorderly conduct, and dismissed a challenge to the revocation of his probation in another case as moot.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A168116">State v. Leers</a> 316 Or App 762 (January 5, 2022) (Powers) (Multnomah County, Immergut)
</p><p><b>EVIDENCE - Business-records hearsay exception - </b><br />Importance: 2/5
</p><p>911 caller's report that he saw defendant leaving a bar is not a business record. Reversed and remanded.
</p><p>Because the trial court did not expressly determine whether the 911 call was admissible "as an excited utterance; for the purpose of identity; [or] to show the effect on the listener," as the state argued, the matter was remanded to resolve those issues.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A171200">State v. Kloeck</a> 316 Or App 804 (January 5, 2022) (Per curiam) (Lincoln County, Benjamin)
</p>https://libraryofdefense.ocdla.org/Blog:Case_Reviews/Oregon_Appellate_Court,_December_29,_2021Oregon Appellate Court, December 29, 2021Rankinjohnsonpdx@gmail.comhttps://libraryofdefense.ocdla.org/User:Rankinjohnsonpdx@gmail.com2022-01-01T01:59:25Z2022-01-01T01:59:47Z<p>ACCUSATORY INSTRUMENTS - Dates
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<p><b>Summarized by Rankin Johnson, OCDLA</b>
</p><p><b>ACCUSATORY INSTRUMENTS - Dates</b><br />Importance: 2/5
</p><p>Specific date of offense is not material element of driving while suspended. Affirmed.
</p><p>The indictment alleged an offense date in January, but the state offered evidence that the offense occurred the preceding December.
Defendant unsuccessfully argued that he needed the precise date to prepare a defense, because a license is suspended for a specific term.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A171056">State v. Arriaga-Mendoza</a> 316 Or App 667 (December 29, 2021) (Mooney) Multnomah County, Roberts)
</p>https://libraryofdefense.ocdla.org/Blog:Case_Reviews/Oregon_Supreme_Court,_December_30,_2021Oregon Supreme Court, December 30, 2021Rankinjohnsonpdx@gmail.comhttps://libraryofdefense.ocdla.org/User:Rankinjohnsonpdx@gmail.com2021-12-31T21:25:24Z2021-12-31T21:30:52Z<p>SEARCH AND SEIZURE - Automobile exception
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<p><b>Summarized by Rankin Johnson, OCDLA</b>
</p><p><b>SEARCH AND SEIZURE - Automobile exception</b><br />Importance: 5/5
</p><p>The Oregon Constitution does not have an automobile exception to the search-warrant requirement. Trial court affirmed, Court of Appeals reversed.
</p><p>The court overturned <i>State v. Brown</i>, which provided that automobiles' mobility created a per-se exigency. In doing so, the court noted that <i>Brown</i> expressly contemplated reconsideration when technological improvements made warrants easier to obtain. The court criticized <i>Brown</i> as relying on federal law, and observed that, although the automobile exception was intended to be easy to administer, it was had not proved to be.
Although the state argued that it would take four to five hours to get a warrant, and the searching officers were not familiar with the telephonic warrant process, the trial court rejected the argument that getting a warrant was impractical. In upholding the trial court's ruling, the Supreme Court expressed concerned about the incentives created by <i>Brown</i>.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/S067608">State v. McCarthy</a> 369 Or 129 (December 30, 2021) (Duncan) (Marion County, Partridge)
</p>https://libraryofdefense.ocdla.org/Blog:Case_Reviews/Oregon_Appellate_Court,_December_22,_2021Oregon Appellate Court, December 22, 2021Rankinjohnsonpdx@gmail.comhttps://libraryofdefense.ocdla.org/User:Rankinjohnsonpdx@gmail.com2021-12-27T18:50:54Z2021-12-27T18:57:07Z<p>SEARCH AND SEIZURE - Conduct constituting a search
SEARCH AND SEIZURE - Scope of consent
TIME LIMITATIONS - Flight
RESTITUTION - Pecuniary damages
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<p><b>Summarized by Rankin Johnson, OCDLA</b>
</p><p><b>SEARCH AND SEIZURE - Conduct constituting a search</b><br />Importance: 3/5
</p><p>Police request that cell-phone service provider 'ping' defendant's phone, revealing location, was a search, but the search was justified by exigency. Affirmed.
</p><p>Police used the ping data to find a motel where defendant was staying and obtain a search warrant. The court rejected the state's cross-assignment of error that defendant lacked a privacy interest, but also rejected defendant's argument that no exigency justified the search.
</p><p>The court also found that defendant's 25-to-life sentence for felony murder was proportionate, notwithstanding mild intellectual disability.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A168045">State v. Hawthorne</a> 316 Or App 487 (December 22, 2021) (DeVore) (Marion County, Hart)
</p><p><b>SEARCH AND SEIZURE - Scope of consent</b><br />Importance: 2/5
</p><p>Record supported trial court's finding that defendant's consent to search applied to large satchel, not just smaller purse within satchel. Affirmed
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A171316">State v. Cross</a> 316 Or App 506 (December 22, 2021) (DeVore) (Douglas County, Simmons)
</p><p><b>TIME LIMITATIONS - Flight</b><br />Importance: 2/5
</p><p>Nine-year delay caused by defendant's flight to Texas did not count against the state in evaluating speedy-trial motion. Reversed on state's appeal.
</p><p>The Court of Appeals disagreed with the trial court's holding that the state could have done more to locate defendant. Further, the record did not show prejudice to the defense beyond faded memories, which "cut both ways."
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A172360">State v. Delatorre</a> 316 Or App 559 (December 22, 2021) (Mooney) (Polk County, Campbell)
</p><p><b>RESTITUTION - Pecuniary damages</b><br />Importance: 2/5
</p><p>Bad checks used to pay pre-existing debt did not support restitution award, because defendant owed the debt regardless of the checks. Reversed.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A174163)">State v. Elder</a> 316 Or App 572 (December 22, 2021) (Per curiam) (Douglas County, Simmons)
</p>https://libraryofdefense.ocdla.org/Blog:Case_Reviews/Oregon_Appellate_Court,_December_15,_2021Oregon Appellate Court, December 15, 2021Rankinjohnsonpdx@gmail.comhttps://libraryofdefense.ocdla.org/User:Rankinjohnsonpdx@gmail.com2021-12-18T00:50:47Z2021-12-18T00:52:29Z<p>SEARCH AND SEIZURE - Investigation connected to stop
JURY INSTRUCTIONS - Comments on evidence
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<p><b>Summarized by Rankin Johnson, OCDLA</b>
</p><p><b>SEARCH AND SEIZURE - Investigation connected to stop</b><br />Importance: 1/5
</p><p>Trial court did not determine whether shining flashlight in defendant's car was reasonably connected to car-theft investigation, for which the officer had probable cause, or drug offenses, for which he didn't. Reversed and remanded.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A171737">State v. Deatley</a> 316 Or App 351 (December 15, 2021) (Tookey) (Multnomah County, Moawad)
</p><p><b>JURY INSTRUCTIONS - Comments on evidence</b><br />Importance: 2/5
</p><p>Trial court erred in instructing jury that slap was offensive physical contact, but the error was harmless. Affirmed.
</p><p>The Court of Appeals reversed a judgment term imposing attorney fees without supporting findings.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A173069">State v. Stewart</a> 316 Or App 450 (December 15, 2021) (Powers) (Washington County, Garcia)
</p>https://libraryofdefense.ocdla.org/Blog:Case_Reviews/Oregon_Appellate_Court,_December_8,_2021Oregon Appellate Court, December 8, 2021Rankinjohnsonpdx@gmail.comhttps://libraryofdefense.ocdla.org/User:Rankinjohnsonpdx@gmail.com2021-12-10T23:08:34Z2021-12-10T23:08:34Z<p>EVIDENCE - Domestic-violence hearsay exception
APPEAL AND REVIEW - Plain error
SENTENCING - Departure based on unadjudicated conduct
SENTENCING - Restitution
TRIAL PROCEDURE - Mistrial
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<p><b>Summarized by Rankin Johnson, OCDLA</b>
</p><p><b>EVIDENCE - Domestic-violence hearsay exception</b><br />Importance: 3/5
</p><p>Hearsay statements by the victim that defendant was controlling, became aggressive when drunk, and refused to go to counseling did not explain events within the 24-hour window required for the domestic-violence hearsay exception. Reversed.
</p><p>The court remanded a harassment conviction for new trial. It reversed a conviction for assault, because the victim's statement that defendant slapped her, causing a 'stingy shock' and pain of "2 out of 10" was not sufficient to prove a physical injury.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A171263)">State v. Curiel</a> 316 Or App 215 (December 8, 2021) (Lagesen) (Lane County, Cascagnette)
</p><p><b>APPEAL AND REVIEW - Plain error</b><br />Importance: 1/5
</p><p>Court declined to review plain error in ordering payment of court-appointed attorney's fees, because defendant did not ask it to do so. Affirmed.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A163483">State v. Laune</a> 316 Or App 225 (December 8, 2021) (Dehoog) (Lincoln County, Bachart)
</p><p><b>SENTENCING - Departure based on unadjudicated conduct</b><br />Importance: 2/5
</p><p>Trial court did not err in finding persistent involvement based on one conviction and one unadjudicated incident that did not lead to a conviction. Affirmed.
</p><p>Although caselaw is inconsistent about whether persistent involvement can be based on unadjudicated conduct, defendant failed to engage with the most recent opinion, which was contrary to his position.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A168781">State v. Summerlyn</a> 316 Or App 230 (December 8, 2021) (DeHoog) (Lane County, Rasmussen)
</p><p><b>SENTENCING - Restitution</b><br />Importance: 2/5
</p><p>When defendant stole the victim's cell phone, preventing him from working for Lyft and causing him to incur fees to Lyft, defendant could be required to pay the fees in restitution. Affirmed.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A172781">State v. Venable</a> 316 Or App 235 (December 8, 2021) (James) (Multnomah County, Roberts)
</p><p><b>TRIAL PROCEDURE - Mistrial</b><br />Importance: 3/5
</p><p>Trial court should have granted mistrial following repeated references to defendant's assertion of his right to remain silent. Reversed.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A171378">State v. Hylton</a> 316 Or App 270 (December 8, 2021) (Per curiam) (Lincoln County, Branford)
</p>https://libraryofdefense.ocdla.org/Blog:Case_Reviews/Oregon_Supreme_Court,_December_9,_2021Oregon Supreme Court, December 9, 2021Rankinjohnsonpdx@gmail.comhttps://libraryofdefense.ocdla.org/User:Rankinjohnsonpdx@gmail.com2021-12-10T17:40:08Z2021-12-10T19:36:27Z<p>SEARCH AND SEIZURE - Coercive questioning
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<p><b>Summarized by Rankin Johnson, OCDLA</b>
</p><p><b>SEARCH AND SEIZURE - Coercive questioning</b><br />Importance: 4/5
</p><p>Police stopped defendant by asking if he had just bought drugs from a man in an alleyway. Trial court and Court of Appeals reversed.
</p><p>The court declined to create a bright-line test to determine when questioning became coercive enough to constitute a stop. In finding that the questioning in this case was coercive, the court reasoned that, by asking defendant if he possessed drugs, and asking for permission to search when he received a denial, the stopping officer conveyed that he was investigating defendant for a crime. Because the stopping officer lacked reasonable suspicion, the stop was unlawful.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/S068223">State v. Reyes-Herrera</a> 369 Or 54 (December 9, 2021) (Walters) (Washington County, Butterfield)
</p>https://libraryofdefense.ocdla.org/Blog:Case_Reviews/Oregon_Appellate_Court,_December_1,_2021Oregon Appellate Court, December 1, 2021Rankinjohnsonpdx@gmail.comhttps://libraryofdefense.ocdla.org/User:Rankinjohnsonpdx@gmail.com2021-12-03T06:24:23Z2021-12-10T18:46:14Z<p>SENTENCING - Sanction units
INEFFECTIVE ASSISTANCE OF COUNSEL - Defendant's competency
RIGHT TO JURY TRIAL - Waiver
INEFFECTIVE ASSISTANCE OF COUNSEL - Filing notice of appeal
RESTITUTION - Good cause to extend deadline
MENTAL HEALTH DEFENSES - Extreme emotional disturbance
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<p><b>Summarized by Rankin Johnson, OCDLA</b>
</p><p><b>SENTENCING - Sanction units</b><br />Importance: 2/5
</p><p>Sentencing court did not plainly err by imposing too many sanction units. Affirmed.
</p><p>Defendant was convicted of promoting prostitution, a felony. The court sentenced defendant to probation with 12 months' jail time. Although that sentence was erroneous, defendant did not object, possibly for tactical reasons, and the state had sought a much longer prison term. Accordingly, the court declined to exercise its discretion to correct the error.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A170421">State v. Wedebrook</a> 316 Or App 1 (December 1, 2021) (Armstrong) (Clackamas County, Van Dyk)
</p><p><b>INEFFECTIVE ASSISTANCE OF COUNSEL - Defendant's competency</b><br />Importance: 3/5
</p><p>Juvenile counsel was ineffective in failing to have youth's competency evaluated before his admission to delinquent acts. Reversed.
</p><p>Applying the same standard as in post-conviction, the court held that counsel had been ineffective in relying on her interactions with youth to evaluate youth's competency. That error affected the outcome of the plea process, and, accordingly, the juvenile court should have set aside the adjudication.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A171787">State v. C. L. E.</a> 316 Or App 5 (December 1, 2021) (Lagesen) (Lane County, Conover)
</p><p><b>RIGHT TO JURY TRIAL - Waiver</b><br />Importance: 1/5
</p><p>Trial court did not plainly err by finding defendant's jury waiver was 'knowing.' Affirmed.
</p><p>Defendant argued that his waiver was not knowing, because he did not know that the US Supreme Court would soon decide that jury verdicts must be unanimous.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A173041">State v. Austin</a> 316 Or App 56 (December 1, 2021) (Aoyagi) (Jackson County, Mejia)
</p><p><b>INEFFECTIVE ASSISTANCE OF COUNSEL - Filing notice of appeal</b><br />Importance: 2/5
</p><p>Post-conviction court erred in denying relief following its finding that petitioner "may" have expressed a "vague wish" to appeal. Reversed and remanded.
</p><p>Even a "vague wish" to appeal must be honored. Accordingly, the Court of Appeals remanded to the post-conviction court to determine whether such a wish was expressed, and to order relief if so.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A168534">Dickerson v. Fhuere</a> 316 Or App 62 (December 1, 2021) (Powers) (Coos County, Pruess)
</p><p><b>RESTITUTION - Good cause to extend deadline</b><br />Importance: 2/5
</p><p>Where victim sent restitution information to the prosecutor's office on the 87th day, and the prosecutor filed the restitution request on the 94th day, trial court erred in finding good cause to extend the 90-day deadline. Reversed.
</p><p>The record did not explain the reason for the 87-day delay.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A172699">State v. Halfmoon</a> 316 Or App 69 (December 1, 2021) (Kamins) (Umatilla County, Hill)
</p><p><b>MENTAL HEALTH DEFENSES - Extreme emotional disturbance</b><br />Importance: 2/5
</p><p>When defendant raised EED defense, evidence that he had been diagnosed with antisocial personality disorder was admissible as rebuttal. Affirmed.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A172468">State v. Courtier</a> 316 Or App 121 (December 1, 2021) (Per curiam) (Multnomah County, Hodson)
</p>https://libraryofdefense.ocdla.org/Blog:Case_Reviews/Oregon_Supreme_Court,_December_2,_2021Oregon Supreme Court, December 2, 2021Rankinjohnsonpdx@gmail.comhttps://libraryofdefense.ocdla.org/User:Rankinjohnsonpdx@gmail.com2021-12-03T03:34:14Z2021-12-10T18:47:17Z<p>HEARSAY AND CONFRONTATION - Proof of unavailability
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<p><b>Summarized by Rankin Johnson, OCDLA</b>
</p><p><b>HEARSAY AND CONFRONTATION - Proof of unavailability</b><br />Importance: 4/5
</p><p>State failed to prove that witness was unavailable and hearsay was thus admissible. Trial court and Court of Appeals reversed, remanded for further proceedings.
</p><p>The state had repeated contact with the witness in the months before trial, but at some point the witness ceased cooperating and asked not to be contacted again. The witness was personally served with a subpoena, but closed the door on the process server and thereafter did not appear at trial.
</p><p>In holding that the witness was not available, the trial court observed that the witness was "refusing to cooperate." The Court of Appeals, in affirming, found that the state had undertaken reasonable efforts in good faith to produce the witness.
</p><p>In reversing, the Supreme Court held that, to demonstrate unavailability, the state must exhaust measures that are reasonably available to produce the witness. That inquiry does not depend on the likelihood of success of a particular measure. Further, a witness's failure to appear in response to a subpoena does not establish unavailability - the state must take further action or establish that any such action would be futile. The state did not attempt to telephone the witness after the witness's failure to appear, and also did not attempt to contact the witness's probation officer.
</p><p>The court further explained that, in objecting to a continuance, defendant did not invite an error regarding hearsay.
</p><p>Balmer, dissenting, would have held that defendant could not argue that the state failed to make sufficient efforts to secure the witness's attendance, because defendant objected to a continuance which would have been necessary for some of those efforts.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/S067922">State v. Belden</a> 369 Or 1 (December 2, 2021) (Flynn, Balmer dissenting) (Multnomah County, Bushong)
</p>https://libraryofdefense.ocdla.org/Blog:Case_Reviews/Oregon_Appellate_Court,_November_24,_2021Oregon Appellate Court, November 24, 2021Rankinjohnsonpdx@gmail.comhttps://libraryofdefense.ocdla.org/User:Rankinjohnsonpdx@gmail.com2021-11-28T01:09:58Z2021-11-28T01:09:58Z<p>SENTENCING - Restitution
SEARCH AND SEIZURE - Voluntariness
ASSAULT - Substantial pain
SEARCH AND SEIZURE - Stop and arrest
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</pre>
<p><b>Summarized by Rankin Johnson, OCDLA</b>
</p><p><b>SENTENCING - Restitution</b><br />Importance: 3/5
</p><p>After defendant was convicted of criminal-mischief for kicking the victim's car, sentencing court did not err in finding that defendant dented the car and imposing restitution accordingly. Affirmed.
</p><p>Defendant admitted that he 'scuffed' the car and denied denting it, and the jury verdict did not distinguish between the two theories.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A169674">State v. Lile</a> 315 Or App 714 (November 24, 2021) (Egan) (Curry County, Margolis)
</p><p><b>SEARCH AND SEIZURE - Voluntariness</b><br />Importance: 2/5
</p><p>Consent to buccal swab was not invalidated by improper coercion after consent but before swab was performed. Affirmed.
</p><p>Defendant was questioned by his caseworker and a detective. The caseworker improperly threatened to interfere with defendant's custody of his son, but the threat did not render defendant's consent involuntary.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A164912">State v. Tate</a> 315 Or App 751 (November 24, 2021) (Ortega) (Linn County, Bispham)
</p><p><b>ASSAULT - Substantial pain</b><br />Importance: 2/5
</p><p>Evidence that defendant punched an 86-year-old dementia sufferer, leaving a deep bruise on her face, was sufficient to prove she suffered substantial pain. Affirmed.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A171255">State v. Sanchez</a> 315 Or App 765 (November 24, 2021) (Tookey) (Lincoln County, Bachart)
</p><p><b>SEARCH AND SEIZURE - Stop and arrest</b><br />Importance: 3/5
</p><p>Taking defendant from a parked car into a house being searched pursuant to a warrant was an arrest, not a stop, and was not supported by probable cause. Reversed.
</p><p>The court noted that defendant had been handcuffed, although the record did not say for how long, and was questioned repeatedly.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A170903)">State v. Madden</a> 315 Or App 787 (November 24, 2021) (Shorr) (Lane County, Holland)
</p>https://libraryofdefense.ocdla.org/Blog:Case_Reviews/Oregon_Supreme_Court,_November_24,_2021Oregon Supreme Court, November 24, 2021Rankinjohnsonpdx@gmail.comhttps://libraryofdefense.ocdla.org/User:Rankinjohnsonpdx@gmail.com2021-11-27T17:35:37Z2021-11-27T17:35:37Z<p>JOINDER, SEVERANCE, AND ELECTION - Timing of election
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<p><b>Summarized by Rankin Johnson, OCDLA</b>
</p><p><b>JOINDER, SEVERANCE, AND ELECTION - Timing of election</b><br />Importance: 3/5
</p><p>Trial counsel was not ineffective in failing to demand that the state elect the prosecution theory before trial. Denial of post-conviction relief affirmed.
</p><p>During trial-court proceedings in 2010, trial counsel demurred and argued that the indictment was too vague to provide double-jeopardy protection. The trial court agreed and ordered the state to elect a prosecution theory at the close of evidence.
</p><p>On direct appeal, the Court of Appeals held that, although the indictment was vague, defendant's failure to seek an election at the beginning of trial prevented review. The Court of Appeals rejected on the merits defendant's argument that the election was an improper amendment.
</p><p>In post-conviction court, defendant, now petitioner, argued that trial counsel's failure to seek an earlier election had been based on a misunderstanding of the law. The post-conviction court agreed and granted relief, but the Court of Appeals reversed, reasoning that, under the state of the law at the time of trial, competent counsel would not necessarily have understood that the court should order an earlier election or that a demurrer was not a suitable mechanism to raise the issue.
</p><p>In affirming the Court of Appeals, the Supreme Court explained that subsequent developments in the law did not establish that counsel was ineffective in failing to anticipate them, but counsel could be ineffective in failing to identify and act on an "obvious" ambiguity in the law.
</p><p>Duncan, concurring, observed that the criminal defendant was unequivocally entitled to notice regarding the charged offenses, and did not receive it, but the vagueness of the law at the time of trial prevented him from obtaining relief.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/S067870">Antoine v. Taylor</a> 368 Or 760 (November 24, 2021) (Nelson, Duncan concurring) (Umatilla County, Pratt)
</p>https://libraryofdefense.ocdla.org/Blog:Case_Reviews/Oregon_Appellate_Court,_November_17,_2021Oregon Appellate Court, November 17, 2021Rankinjohnsonpdx@gmail.comhttps://libraryofdefense.ocdla.org/User:Rankinjohnsonpdx@gmail.com2021-11-19T16:27:19Z2021-11-19T16:28:26Z<p>TRIAL PROCEDURE - Waiver of preliminary hearing
EVIDENCE - Other-bad-acts and plans
FINES, FEES, AND COSTS - Statutory maxima
EVIDENCE - Consciousness of guilt
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<p><b>Summarized by Rankin Johnson, OCDLA</b>
</p><p><b>TRIAL PROCEDURE - Waiver of preliminary hearing</b><br />Importance: 2/5
</p><p>Holding a stip-facts trial following an invalid waiver of preliminary hearing is not plain error. Affirmed.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A163519">State v. Keys</a> 315 Or App 603 (November 17, 2021) (DeHoog) (Marion County, Armstrong)
</p><p><b>EVIDENCE - Other-bad-acts and plans</b><br />Importance: 3/5
</p><p>In sex abuse trial where defendant was accused of touching woman sitting next to him in a library, evidence that defendant sat next to another woman earlier in the day and invaded her personal space, causing her to leave, was admissible to show a 'spurious plan.' Affirmed.
</p><p>The state had a lower burden because the evidence was not offered to prove identity or intent. The two acts in this case were similar enough to support an inference that they were in pursuit of a common plan.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A168298">State v. Taylor</a> 315 Or App 608 (November 17, 2021) (DeHoog) (Multnomah County, Souede)
</p><p><b>FINES, FEES, AND COSTS - Statutory maxima</b><br />Importance: 1/5
</p><p>Trial court erred by imposing compensatory fine and punitive fine which, in combination, exceeded the statutory maximum fine. Reversed.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A171749">State v. Kiemtore</a> 315 Or App 692 (November 17, 2021) (Per curiam) (Umatilla County, Sullivan)
</p><p><b>EVIDENCE - Consciousness of guilt</b><br />Importance: 1/5
</p><p>Evidence of defendant's lack of cooperation with arresting officers, and resulting use of tear gas, was admissible. Affirmed.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A173631">State v. Mott</a> 315 Or App 702 (November 17, 2021) (Per curiam) (Jackson County, Cromwell)
</p>https://libraryofdefense.ocdla.org/Blog:Case_Reviews/Oregon_Supreme_Court,_November_17,_2021Oregon Supreme Court, November 17, 2021Rankinjohnsonpdx@gmail.comhttps://libraryofdefense.ocdla.org/User:Rankinjohnsonpdx@gmail.com2021-11-18T21:42:43Z2021-11-18T21:42:44Z<p>EVIDENCE - Doctrine of chances
</p><pre>
</pre>
<p><b>Summarized by Rankin Johnson, OCDLA</b>
</p><p><b>EVIDENCE - Doctrine of chances</b><br />Importance: 4/5
</p><p>Evidence that defendant's DNA was found at each of four murder scenes was not cross-admissible. Affirmed on state's appeal.
</p><p>Defendant was accused of the murder of four prostitutes. The four cases were severed for trial.
</p><p>The state argued that the presence of defendant's DNA at each of four crime scenes was extremely unlikely to be the result of chance. But, the court explained, the doctrine of chances is not a theory of relevance, and accordingly is not a basis to admit the evidence. Although the state argued that the evidence tended to prove that defendant was present at each crime scene, the court held that such an argument constituted forbidden character evidence. Because the state asserted no non-character purpose for the evidence, the evidence was not relevant.
</p><p>The court rejected defendant's argument that appellate jurisdiction for state's appeals from orders "suppressing" evidence did not include orders excluding evidence, because defendant did not establish that the current meaning of the term "suppression of evidence" was also the meaning when the relevant statute was adopted in 1969.
</p><p>Garrett, concurring, observed that OEC 404(3) forbids the use of "character" evidence, but that the majority's analysis was directed toward "propensity" evidence and did not adequately consider the distinction.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/S067622">State v. Jackson</a> 368 Or 695 (November 17, 2021) (Nakamoto, Garrett concurring) (Multnomah County, Greenlick)
</p>https://libraryofdefense.ocdla.org/Blog:Case_Reviews/Oregon_Supreme_Court,_November_12,_2021Oregon Supreme Court, November 12, 2021Rankinjohnsonpdx@gmail.comhttps://libraryofdefense.ocdla.org/User:Rankinjohnsonpdx@gmail.com2021-11-12T18:19:07Z2021-11-12T18:19:37Z<p>DEATH PENALTY - Retroactivity
</p><pre>
</pre>
<p><b>Summarized by Rankin Johnson, OCDLA</b>
</p><p><b>DEATH PENALTY - Retroactivity</b><br />Importance: 1/5
</p><p>In light of <i>State v. Bartol</i>, 368 Or 598 (2021), a conviction for what was formerly death-penalty-eligible murder no longer carries the death penalty. Reversed.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/S063700">State v. Rogers</a> 368 Or 695 (November 12, 2021) (Nelson) (Clackamas County, Rastetter)
</p>https://libraryofdefense.ocdla.org/Blog:Case_Reviews/Oregon_Appellate_Court,_November_3,_2021Oregon Appellate Court, November 3, 2021Rankinjohnsonpdx@gmail.comhttps://libraryofdefense.ocdla.org/User:Rankinjohnsonpdx@gmail.com2021-11-05T18:50:38Z2021-11-05T18:50:39Z<p>FALSE INFORMATION TO A PEACE OFFICER - Authority to issue citation
MERGER - Defense counsel's obligation
SEARCH AND SEIZURE - Probable cause
</p><pre>
</pre>
<p><b>Summarized by Rankin Johnson, OCDLA</b>
</p><p><b>FALSE INFORMATION TO A PEACE OFFICER - Authority to issue citation</b><br />Importance: 2/5
</p><p>A police officer must have lawful authority to issue citation for defendant to be charged with False Information to a Peace Officer. Reversed.
</p><p>One officer involved was a Tri-Met fare officer, which lacks authority to issue citations, and the other officer did not personally observe conduct warranting a citation and thus lacked authority to cite defendant.
</p><p>Mooney, dissenting, would have interpreted the relevant statutes to encompass a false statement made in connection with issuance of a citation, not reaching the issue of whether the officer could lawfully issue a citation.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A168055">State v. Dickey</a> 315 Or App 501 (November 3, 2021) (DeHoog, Mooney dissenting) (Multnomah County, Lavin)
</p><p><b>MERGER - Defense counsel's obligation</b><br />Importance: 3/5
</p><p>Trial counsel was ineffective in failing to seek merger of two counts of witness tampering, based on the same acts but different theories. Reversed.
</p><p>The court rejected the state's argument that the analysis was so onerous that counsel might reasonably have chosen not to bother. The court also noted that having too many convictions on one's criminal record is always harmful.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A168758">Kurtz v. Cain</a> 315 Or App 518 (November 3, 2021) (DeHoog) (Malheur County, Penn)
</p><p><b>SEARCH AND SEIZURE - Probable cause</b><br />Importance: 3/5
</p><p>Using pliers to work on the inside of the door of a car known to be stolen constituted probable cause for possession of a stolen vehicle. Affirmed.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A170431">State v. McCall</a> 315 Or App 538 (November 3, 2021) (Mooney) (Multnomah County, Souede)
</p>https://libraryofdefense.ocdla.org/Blog:Case_Reviews/Oregon_Supreme_Court,_November_4,_2021Oregon Supreme Court, November 4, 2021Rankinjohnsonpdx@gmail.comhttps://libraryofdefense.ocdla.org/User:Rankinjohnsonpdx@gmail.com2021-11-05T16:18:23Z2021-11-05T16:18:23Z<p>SEARCH AND SEIZURE - Exploitation
</p><pre>
</pre>
<p><b>Summarized by Rankin Johnson, OCDLA</b>
</p><p><b>SEARCH AND SEIZURE - Exploitation</b><br />Importance: 4/5
</p><p>Where evidence obtained through the violation of defendant's rights was included in search-warrant application, state had burden to show warrant was not exploitive, but the state did not carry that burden. Reversed.
</p><p>Police located a witness during an illegal search of defendant's house, and included the witness's statements in a warrant application.
</p><p>The Supreme Court upheld the requirement that a defendant show the connection between a warrant and a prior illegal search before the state is assigned the burden to show that the warrant was not exploitive of the prior search. The court emphasized that the defendant's initial burden is minimal, and it was met in this case.
</p><p>The Court of Appeals had excised the questionable statements from the warrant affidavit and affirmed on the theory that the resulting affidavit still stated probable cause and defendant failed to prove that the unlawful search led to the warranted search. The Supreme Court held that the sufficiency of the warrant was not part of the analysis, and the Court of Appeals had misallocated the burden. The Supreme Court further held that, on this record, the trial court could not properly have held that the state met its burden.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/S06806">State v. DeJong</a> 368 Or 640 (November 4, 2021) (Walters) (Baker County, Baxter)
</p>https://libraryofdefense.ocdla.org/Blog:Case_Reviews/Oregon_Appellate_Court,_October_27,_2021Oregon Appellate Court, October 27, 2021Rankinjohnsonpdx@gmail.comhttps://libraryofdefense.ocdla.org/User:Rankinjohnsonpdx@gmail.com2021-10-29T20:03:02Z2021-10-29T20:03:02Z<p>SENTENCING - Judge and jury findings
RIGHT TO COUNSEL - Admissibility of invocation
WITNESSES - Evidence of bias or interest
BURGLARY - Buildings
ANIMAL ABUSE - Sufficiency
SENTENCING - Special probation conditions
SENTENCING - Enhancement facts
</p><pre>
</pre>
<p><b>Summarized by Rankin Johnson, OCDLA</b>
</p><p><b>SENTENCING - Judge and jury findings</b><br />Importance: 4/5
</p><p>In Jessica's Law case, separate-criminal-episode finding must be made by the jury. Reversed.
</p><p>Although both consecutive-sentence findings and the existence of a prior conviction can be decided by the sentencing court, the statute at issue increased the potential maximum sentence, which implicated the <i>Apprendi</i> rule.
</p><p>The court further found that the error was not harmless, because a jury might have found that multiple rapes against roommates in a single apartment over the course of one evening could have been in furtherance of a single objective.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A167617">State v. Thornsberry</a> 315 Or App 287 (October 27, 2021) (Armstrong) (Lane County, Rigmaiden)
</p><p><b>RIGHT TO COUNSEL - Admissibility of invocation</b><br />Importance: 3/5
</p><p>Testimony about defendant's invocation of his right to counsel required a mistrial. Reversed.
</p><p>The court explained that, under the specific facts, the testimony supported an inference that defendant had something to hide, and a curative instruction would have been insufficient.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A170013">State v. Schumacher</a> 315 Or App 298 (October 27, 2021) (Armstrong) (Washington County, Grensky)
</p><p><b>WITNESSES - Evidence of bias or interest</b><br />Importance: 2/5
</p><p>Defendant was entitled to offer evidence that sex-abuse allegation was fabricated to distract attention from theft victim committed. Reversed.
</p><p>The court noted that, although defendant described the proffered evidence as relating to 'bias,' it would be more accurate to describe it as 'interest.'
</p><p>The trial court excluded the evidence as irrelevant, but, the Court of Appeals explained, a reasonable juror might accept defendant's argument.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A170145">State v. Hassan</a> 315 Or App 324 (October 27, 2021) (Lagesen) (Umatilla County, Lieuallan)
</p><p><b>BURGLARY - Buildings</b><br />Importance: 2/5
</p><p>Jury could properly find that locked metal Conex box, used for storing recyclable cans by a business, was a building for purposes of burglary charge. Affirmed.
</p><p>The Court of Appeals also held that the trial court did not err by failing to act on defendant's lone statement that he wanted to fire his attorney during a contentious hearing.
</p><p>J. James would have held that the trial court could have properly delayed ruling on the new-counsel request until the next hearing, and that defendant's failure to repeat the request waived the issue.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A170301">State v. Fitzgerald</a> 315 Or App 336 (October 27, 2021) (Lagesen, James concurring) (Harney County, Cramer)
</p><p><b>ANIMAL ABUSE - Sufficiency</b><br />Importance: 2/5
</p><p>Evidence that dog yelped while being kicked was sufficient to establish the dog suffered substantial pain. Affirmed.
</p><p>The court also explained that testimony about the incident established that it was not fleeting or momentary.
</p><p>The court erred by imposing $1200 in fines, due in 30 days, while also imposing a prison term but not considering the defendant's ability to pay.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A170402)">State v. Hackett</a> 315 Or App 360 (October 27, 2021) (Tookey) (Coos County, Stone)
</p><p><b>SENTENCING - Special probation conditions</b><br />Importance: 2/5
</p><p>Sentencing court erred in imposing a probation condition that it did not announce in open court. Reversed.
</p><p>The court rejected the state's argument that the condition was mooted by a subsequent judgment finding a probation violation and continuing probation, and, in doing so, overruled a the case on which the state relied.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A172732">State v. Bates</a> 315 Or App 402 (October 27, 2021) (DeHoog) (Washington County, Erwin)
</p><p><b>SENTENCING - Enhancement facts</b><br />Importance: 1/5
</p><p>Sentencing court erred by imposing upward-departure sentence based in part on enhancement fact found by nonunanimous verdict. Reversed.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A173016">State v. Huynh</a> 315 Or App 456 (October 27, 2021) (Aoyagi) (Marion County, James)
</p>https://libraryofdefense.ocdla.org/Blog:Case_Reviews/Oregon_Appellate_Court,_October_20,_2021Oregon Appellate Court, October 20, 2021Rankinjohnsonpdx@gmail.comhttps://libraryofdefense.ocdla.org/User:Rankinjohnsonpdx@gmail.com2021-10-22T00:24:11Z2021-10-22T15:40:18Z<p>WITNESSES - False-in-part instruction
CHILD NEGLECT - Sufficiency
EVIDENCE - Opinion evidence about reacting to accusation
SEARCH AND SEIZURE - Arrest pursuant to warrant
CONFLICTS OF INTEREST - Judicial conflicts and recusal
DELIVERY OF A CONTROLLED SUBSTANCE - Attempted delivery
</p><pre>
</pre>
<p><b>Summarized by Rankin Johnson, OCDLA</b>
</p><p><b>WITNESSES - False-in-part instruction</b><br />Importance: 2/5
</p><p>DV victim's rambling, inconsistent testimony did not require the false-in-part instruction. Affirmed.
</p><p>The court explained that inconsistencies in the testimony could have been mistakes, rather than lies.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A167173">State v. Gocan</a> 315 Or App 222 (October 20, 2021) (Ortega) (Multnomah County, Bergstrom)
</p><p><b>CHILD NEGLECT - Sufficiency</b><br />Importance: 2/5
</p><p>Permitting girlfriend's seven-year-old child to follow her into McDonald's to use the bathroom, and then inadvertently driving away without the child, was not leaving the child 'unattended.' Reversed.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A170563">State v. Montgomery</a> 315 Or App 231 (October 20, 2021) (Ortega) (Lincoln County, Sanders)
</p><p><b>EVIDENCE - Opinion evidence about reacting to accusation</b><br />Importance: 3/5
</p><p>Police officer's statement about how she would react to being accused of indecent exposure was not admissible, although the statement was made in connection with lawful questioning yielding admissible answers. Reversed.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A168481">State v. Carter</a> 315 Or App 246 (October 20, 2021) (DeHoog) (Multnomah County, Bottomly)
</p><p><b>SEARCH AND SEIZURE - Arrest pursuant to warrant</b><br />Importance: 3/5
</p><p>State failed to prove the existence of a warrant to arrest defendant. Reversed.
</p><p>A police officer arrested defendant on the strength of a computer notation that a warrant existed, and discovered evidence on defendant's person. Defendant moved to suppress, arguing that the warrant was not valid. The state offered no evidence about the warrant, and did not argue that the arrest would have been lawful in the absence of a warrant. Accordingly, the state failed to meet its burden of production, and the trial court erred by denying the motion to suppress.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A169186">State v. Perrodin</a> 315 Or App 252 (October 20, 2021) (Shorr) (Lane County, Merten)
</p><p><b>CONFLICTS OF INTEREST - Judicial conflicts and recusal</b><br />Importance: 1/5
</p><p>In murder case, judge's representation of victim in DUII prosecution six years before, of which judge had no current recollection, did not preclude judge from sitting as finder-of-fact. Affirmed.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A168728">State v. Espinal</a> 315 Or App 264 (October 20, 2021) (Per curiam) (Clackamas County, Rastetter and Karabeika)
</p><p><b>DELIVERY OF A CONTROLLED SUBSTANCE - Attempted delivery</b><br />Importance: 2/5
</p><p>Possession of 120 "user amounts" of heroin and methamphetamine did not prove delivery. Reversed.
</p><p>Although the court explained that taking a substantial step toward the crime of DCS but not attempting an actual delivery was the crime of attempted DCS, it vacated the DCS convictions and remanded for resentencing of PCS and unrelated offenses.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A170543">State v. Fischer</a> 315 Or App 267 (October 20, 2021) (Per curiam) (Marion County, Abar)
</p>https://libraryofdefense.ocdla.org/Blog:Case_Reviews/Oregon_Appellate_Court,_October_13,_2021Oregon Appellate Court, October 13, 2021Rankinjohnsonpdx@gmail.comhttps://libraryofdefense.ocdla.org/User:Rankinjohnsonpdx@gmail.com2021-10-16T00:14:16Z2021-10-16T00:22:54Z<p>TRIAL PROCEDURE - Shackles and other restraints
DOUBLE JEOPARDY - Jeopardy created by civil proceedings
THEFT - Mental state
SENTENCING - Life sentences for juveniles
SENTENCING - Restitution
UNLAWFUL USE OF A VEHICLE - Vehicles
PROBATION - Use of hearsay
SEARCH AND SEIZURE - Inevitable discovery
PLEA AGREEMENTS - Enforceability
</p><pre>
</pre>
<p><b>Summarized by Rankin Johnson, OCDLA</b>
</p><p><b>TRIAL PROCEDURE - Shackles and other restraints</b><br />Importance: 3/5
</p><p>Record contained no basis for the court's discretionary order that defendant wear a leg brace. Reversed.
</p><p>Defendant argued that she was unable to wear the clothes she chose for trial because they would have showed the brace, and the Court of Appeals also observed that the order could have affected the defendant's choice not to testify.
</p><p>The Court of Appeals explained that by raising the issue and citing federal law, but not Oregon law, counsel had adequately raised the issue.
</p><p>Finally, the Court of Appeals said it was "deeply troubled" that the trial court employed a "blanket restraint rule" and that the prosecutor supported the rule, which was "manifestly unconstitutional."
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A172692">State v. Osborn</a> 315 Or App 102 (October 13, 2021) (Ortega) (Coos County, Stone)
</p><p><b>DOUBLE JEOPARDY - Jeopardy created by civil proceedings</b><br />Importance: 3/5
</p><p>Contempt sanctions in civil suit did not create jeopardy as to criminal prosecution from the same facts. Affirmed.
</p><p>Defendant forged a prenuptial agreement to gain an advantage in divorce proceedings. As a sanction, the divorce court struck some of his claims and ordered him to pay $750,000 in attorney's fees and costs. The criminal court denied his motion to dismiss on double-jeopardy grounds. The Court of Appeals explained that, although the civil sanctions were intended to punish defendant for his misconduct, they remained civil sanctions that did not trigger double-jeopardy protection.
</p><p>The Court of Appeals also upheld the restitution award for legal fees related to some of the contempt proceedings, noting that the standard of review was deferential and the trial court's findings had been detailed.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A169687">State v. Halvorson</a> 315 Or App 112 (October 13, 2021) (Lagesen) (Multnomah County, Dahlin)
</p><p><b>THEFT - Mental state</b><br />Importance: 2/5
</p><p>Possession of stolen guns was not sufficient to prove that defendant stole the guns or knew they were stolen. Reversed.
</p><p>Defendant's apparent occupation as a drug-dealer, and the use by drug-dealers of stolen guns, did not prove the mental state for theft.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A170329">State v. Buell</a> 315 Or App 124 (October 13, 2021) (Lagesen) (Marion County, Bennett)
</p><p><b>SENTENCING - Life sentences for juveniles</b><br />Importance: 3/5
</p><p>Life sentence for 16-year convicted of murder did not violate the Eighth Amendment, because sentencing court had the option to impose shorter sentence and exercised discretion not to do so, taking into account defendant's age. Affirmed.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A168535">Harned v. Amsberry</a> 315 Or App 146 (October 13, 2021) (Shorr) (Umatilla County, Penn)
</p><p><b>SENTENCING - Restitution</b><br />Importance: 1/5
</p><p>State failed to prove that medical bills were "reasonable," so restitution based on those bills was unwarranted. Reversed.
</p><p>The court rejected defendant's unpreserved argument that his guilty plea to burglary did not warrant restitution for injuries caused during the burglary. The court also rejected defendant's argument that the trial court had erred in denying his motion for substitute counsel.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A171734">State v. Henry</a> 315 Or App 169 (October 13, 2021) (Powers) (Washington County, Garcia)
</p><p><b>UNLAWFUL USE OF A VEHICLE - Vehicles</b><br />Importance: 2/5
</p><p>Jury was correctly instructed on whether a trailer was a 'vehicle' for purposes of Unlawful Use of a Vehicle. Affirmed.
</p><p>The court rejected defendant's arguments that a vehicle was necessarily motorized, and that his own testimony that he did not know the value of the trailer warranted a lesser-included-offense instruction as to theft.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A167826">State v. Phillips</a> 315 Or App 178 (October 13, 2021) (Sercombe) (Coos County, Stone)
</p><p><b>PROBATION - Use of hearsay</b><br />Importance: 2/5
</p><p>Due process prevented using hearsay as central evidence to extend defendant's probation without a showing that providing direct evidence would be difficult or expensive. Reversed.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A172736">State v. Hager</a> 315 Or App 201 (October 13, 2021) (Per curiam) (Lane County, Zennaché)
</p><p><b>SEARCH AND SEIZURE - Inevitable discovery</b><br />Importance: 2/5
</p><p>State failed to prove that police would inevitably have searched defendant, a passenger in a car, after drugs were found in the car. Reversed.
</p><p>The Court of Appeals explained that too many inferences were necessary to make an inevitable-discovery finding.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A168910">State v. Alonso-Vasquez</a> 315 Or App 208 (October 13, 2021) (Per curiam) (Washington County, Raines)
</p><p><b>PLEA AGREEMENTS - Enforceability</b><br />Importance: 3/5
</p><p>Habeas plaintiff was entitled to credit-for-time-served on one conviction for time served for different conviction under terms of plea agreement. Affirmed on state's appeal.
</p><p>The court explained that, even if the credit-for-time-served calculation sought by plaintiff violated statute, due process would require enforcing the plea agreement.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A169395">Fritz v. Amsberry</a> 315 Or App 213 (October 13, 2021) (Per curiam) (Umatilla County, Temple)
</p>https://libraryofdefense.ocdla.org/Blog:Case_Reviews/Oregon_Appellate_Court,_October_6,_2021Oregon Appellate Court, October 6, 2021Rankinjohnsonpdx@gmail.comhttps://libraryofdefense.ocdla.org/User:Rankinjohnsonpdx@gmail.com2021-10-11T18:18:00Z2021-10-11T18:18:00Z<p>DELIVERY OF A CONTROLLED SUBSTANCE - <i>Boyd</i> deliveries
EVIDENCE - Facts outside the record
SEARCH AND SEIZURE - U-turns
DEFENDANT'S STATEMENTS - Threats and voluntariness
SENTENCING - Special probation conditions
</p><pre>
</pre>
<p><b>Summarized by Rankin Johnson, OCDLA</b>
</p><p><b>INADEQUATE ASSISTANCE OF COUNSEL - Prejudice</b><br />Importance: 3/5
</p><p>Petitioner, a Black man, was prejudiced by counsel's failure to interview a neighbor who saw a white man go into the murder victim's house and flee after a struggle. Reversed.
</p><p>The neighbor said that she tried to tell police on the night of the murder, but was ignored, and when she tried to tell a detective about it later, the detective said, “A n***** got murdered, and a n*****’s going to pay for it.” (Brackets added) Her testimony, providing an alternative suspect, would have given the jury a reason to acquit and also have affected trial counsel's tactical choices.
</p><p>In the state's cross-appeal, the Court of Appeals affirmed the trial court's that spending six hours canvassing neighbors was inadequate, in light of evidence that the post-conviction investigator located her without trouble.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A159635">Johnson v. Premo</a> 315 Or App 1 (October 6, 2021) (Armstrong) (Marion County, Reynolds)
</p><p><b>EVIDENCE - Other bad acts</b><br />Importance: 2/5
</p><p>In sex-abuse trial, evidence that defendant previously abused someone else was not admissible. Reversed and remanded.
</p><p>On appeal, the state argued that the evidence was admissible propensity evidence under OEC 404(4), but the trial court had admitted the evidence as nonpropensity evidence under OEC 403(4). The trial court on remand could consider the state's new argument.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A171517">State v. Martinez</a> 315 Or App 48 (October 6, 2021) (Tookey) (Washington County, Sims)
</p><p><b>APPELLATE PROCEDURE - Right for the wrong reason</b><br />Importance: 1/5
</p><p>State did not persuade court to exercise its discretion to affirm judgment as right for the wrong reason. Reversed.
</p><p>The state conceded that the trial court erred in denying defendant's motion to suppress. The Court of Appeals was unpersuaded that the police investigation would have developed the same way lacking the unlawful search, and defendant was deprived of the opportunity to test the state's position.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A170343">State v. Jones</a> 315 Or App 60 (October 6, 2021) (DeHoog) (Clackamas County, Herndon)
</p><p><b>APPELLATE PROCEDURE - Right for the wrong reason</b><br />Importance: 2/5
</p><p>Motion in limine was not sufficient to preserve Confrontation Clause objection, because defendant did not renew and develop objection when the underlying evidence was developed. Affirmed.
</p><p><a rel="nofollow" class="external text" href="https://link.ocdla.org/soll/A167735">State v. Johnson</a> 315 Or App 66 (October 6, 2021) (Per curiam) (Deschutes County, Bagley)
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