Case Reviews
From OCDLA Library of Defense
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Oregon Appellate Ct - Jan 11, 2017
by: Sara Werboff • January 13, 2017 • no comments
- UUV - Overruling Prior Case Interpreting Scope of Unauthorized Use of a Vehicle under ORS 164.135(1)(a) as "Plainly Wrong"
- Appeal and Review - Declining to Exercise Discretion to Review for Plain Error when Error Could Have Been Fixed in the Trial Court
- Termination of Parental Rights - DHS Met Burden of Proof under Indian Child Welfare Act (ICWA)
- Juvenile Dependency - Juvenile Court Must Determine That There Are No Compelling Circumstances to Forego a Change in Permanency Plan
- Per Curiam - Juvenile Dependency - No Evidence that Mother Continued to Have Domestically Violent Relationships
Oregon Appellate Ct - Jan 5, 2017
by: Sara Werboff • January 9, 2017 • no comments
- Juvenile Dependency - Insufficient Evidence that DHS Made Reasonable Efforts to Provide Services to Incarcerated Parent
- Juvenile Dependency - Insufficient Evidence that DHS Made Reasonable Efforts to Provide Services to Incarcerated Parent
- Search & Seizure - No Article I, Section 9, Violation When Police Searched Defendants' Garbage
Oregon Appellate Ct - Dec 29, 2016
by: Sara Werboff • January 2, 2017 • no comments
- "Past Sexual Behavior" Under OEC 412 is Behavior Other Than the Underlying Allegations
- DUII - A Person in a Motorized Wheelchair in a Crosswalk is a Pedestrian and Not a Driver
- DNA Testing - Remand Required When Trial Court Denied Petition for Appointed Counsel on Improper Basis
- Traffic Violations - Court Did Not Abuse Discretion in Limiting Defendant's Evidence in Traffic Proceeding
- Juvenile Dependency - Juvenile Court did Not Make "Child-Centered" Determination in Changing Permanency Plan
- Fines and Fees - Restitution Award Proper for Victim's Attorney Fees but Not for Costs of CARES Evaluation
- Evidence - Johns Test Not Required for Motive Evidence - State Failed to Establish that Prior Act was Relevant Under OES 404(3)
- Post-Conviction Relief - Petitioner was Prejudiced by Trial Counsel's Failure to Provide Timely Notice of Alibi
- Sentencing - Merger Required Because Acts Not Separated by "Sufficient Pause"
- Per Curiam - Civil Commitment - Dismissal Required When Hearing was Untimely
- Per Curiam - Affirming Probation Revocation Sentence Imposed Pursuant to Stipulation in Plea Agreement
Oregon Supreme Ct - Dec 22, 2016
by: Sara Werboff • December 23, 2016 • no comments
- Post-Conviction Relief - Trial Court Erred in Granting Motion for Summary Judgment on Petitioner's Successive PCR Claim Alleging Brady Violation
Oregon Appellate Ct - Dec 21, 2016
by: Sara Werboff • December 23, 2016 • no comments
- Photo-Radar Statutes Did Not Violate Local Laws Prohibition of Oregon Constitution
- Fines and Fees - No Error in Imposing Compensatory Fine for Future Medical Expenses
- Denial of MJOA and Overruling Vouching Objection Was Not Error but Trial Court Plainly Erred in Imposing Attorney Fees'
- Juvenile Court Failed to Make Sufficient Findings in Support of Discretionary Decision
- Reversing Due to Lack of Written Jury Trial Waiver
- Defendant's Evidentiary Claims Were Unpreserved but Trial Court's Failure to Merge Guilty Verdicts Was Plain Error
- Per Curiam - Attorney Fees - Trial Court Plainly Erred in Imposing $634 in Attorney Fees
- Per Curiam - Civil Commitment - State Presented Insufficient Evidence to Support Civil Commitment
Oregon Appellate Ct - Dec 14, 2016
by: Sara Werboff • December 16, 2016 • no comments
- Merger - Sex Abuse Convictions Merged Because There Was No Sufficient Pause Between Acts
- Sentencing - Indeterminate Life Sentence with 25-Year Minimum is the Sentence for Murder
- To Show That Delivery "Is For Consideration" State Need Only Show Delivery with Purpose of Obtaining Something of Value in Return
- Civil Commitment - Appellant Failed to Preserve Argument That, Because He Was in Jail, He Could Meet Basic Needs
- Disorderly Conduct - Insufficient Evidence that Defendant Engaged in Physical Act of Aggression
- Invited Error - Defendant Could Not Obtain Reversal of Trial Court's Denial of DNA Testing Because He Invited the Error
- Preservation - Defendant Failed to Preserve Claim That He Was Entitled to Cross-Examine Victim with Prior False Accusation
- Per Curiam - Post-Conviction Relief - Judgment Did Not Comply with Datt v. Hill
- Per Curiam - Merger - State Concedes Convictions for Third-Degree Assault and Fourth-Degree Assault Should Merge
- Per Curiam - State Could Not Obtain Conviction for Uncharged Misconduct
- Per Curiam - Reversing Attorney Fee Award
- Per Curiam - Trial Court Erred in Imposing Fees It Had Not Announced on the Record During Sentencing
- Per Curiam - Trial Court Erred in Directing Court Clerk to Set Up Fee Payment Schedule
Oregon Appellate Ct - Dec 7, 2016
by: Sara Werboff • December 9, 2016 • no comments
- Appeal and Review - Court Lacked Jurisdiction to Consider Defendant's Appeal from Restitution Order Following a No-Contest Plea
- Jury Instructions - Hindering Prosecution Instruction that Included All Subsections When Only One was Alleged was Harmless Error
- Court Dismisses State's Appeal of Second-Look Hearing As Moot in Light of PCR Judgment
- Trial Court had Jurisdiction to Consider Defendant's Motion for DNA Testing
- Search and Seizure - Officer Lacked Objectively Reasonable Concern for Officer Safety
- Hand Restraint During Trial was Harmless Error - Mills Reversal Not Required Because Venue was Comprehensively Litigated
- Per Curiam - Fines and Fees - Trial Court Erred in Imposing $60 "Mandatory State Amt"
- Per Curiam - State Concedes the Trial Court Erred in Denying Defendant's Suppression Motion
- Per Curiam - Legally Insufficient Evidence of Physical Injury
- Per Curiam - Civil Commitment - Evidence Was Legally Insufficient
- Per Curiam - Civil Commitment - Plain Error Not to Inform Appellant of His Rights
- Per Curiam - Juvenile Dependency - Appeal is Moot
- Per Curiam - Civil Commitment - Reversal Because Appellant Held for More Than Five Days Without Hearing
Oregon Appellate Ct - Nov 30, 2016
by: Sara Werboff • December 5, 2016 • no comments
- Merger - Court Rejects State's Argument that Multiple Acts of Sex Abuse are Not Same Conduct or Criminal Episode - State Failed to Prove Sufficient Pause Between Defendant's Criminal Acts
- Defendant Failed to Preserve Due Process Challenge to Admission of Hearsay Evidence in Probation Revocation Hearing
- Juvenile Dependency - DHS Failed to Prove A Current Risk of Harm to Child
- Juvenile Delinquency - Trial Counsel Did Not Render Inadequate Assistance of Counsel
- Trial Court Did Not Plainly Err in Failing to Strike Comment on Defendant's Credibility
- Termination of Parental Rights - DHS Failed to Prove that Parents' Conduct or Condition was Seriously Detrimental to Children
- Post-Conviction Relief - Petitioner Not Entitled to Relief for Counsel's Failure to Request Concurrence Instruction
- Defendant Entitled to MJOA on Kidnapping When State Failed to Prove Intent to Interfere with Personal Liberty
- Defendant Entitled to MJOA on Multiple Rape Counts When State Proved Only One Act of Sexual Intercourse
- Restitution - Defendant Not Required to Preserve Restitution Challenge When There Was No Practical Opportunity to Object
- Appeal and Review - Probation Revocation Appealable but Not Reviewable
- Search and Seizure - Police Could Not Rely on Emergency Aid Exception to Search Defendant's Bedroom
- Search and Seizure - Police Had Reasonable Suspicion to Detain Defendant Visiting Known Drug House
- Per Curiam - Civil Commitment - Insufficient Evidence
- Per Curiam - Juvenile Dependency - Dependency Proceeding Not a Foster Care Placement for Purposes of ICWA
- Per Curiam - Hearsay Inadmissible as Prior Consistent Statement
Oregon Supreme Ct - Nov 25, 2016
by: Sara Werboff • November 25, 2016 • no comments
- Restitution - Restitution Award Proper When Defendant's Crime Was the But-For Cause of Victim's Attorney Fees and Fees Were a Foreseeable Result
Oregon Appellate Ct - Nov 23, 2016
by: Sara Werboff • November 25, 2016 • no comments
- Right to Silence - State Impermissibly Commented on Defendant's Silence and Reversal Was Required
- Merger - No Merger was Appropriate When There Was a Sufficient Pause Between Crimes
- Burglary - Sufficient Evidence that Defendant Trespassed - Failure to Strike Allegation of "Occupied Dwelling" Was Not Plain Error
Oregon Supreme Ct - Nov 17, 2016
by: Sara Werboff • November 18, 2016 • no comments
- Expert Testimony - Trial Court Did Not Err in Excluding Testimony Concerning Defendant's Adjustment Disorder as Unhelpful to the Jury
Oregon Appellate Ct - Nov 16, 2016
by: Sara Werboff • November 18, 2016 • no comments
- Expert Witness Testimony Properly Excluded - Trial Court Did Not Err in Calculating Criminal History Score
- Parole Board - Board Had Authority to Deny Petitioner Rerelease on Parole
- Evidence - Trial Court Did Not Err in Admitting Officer's Testimony About Victim's Identification and Text Messages
- Sentencing - Appeal and Review - Defendant Entitled to a Resentencing Hearing on Remand
- Evidence - Prior Uncharged Misconduct Evidence Admissible to Prove Motive but Court Erred by Not Conducting 403 Balancing
- Search & Seizure - Officer Unlawfully Extended Stop Without Reasonable Suspicion
- Per Curiam - Disorderly Conduct - Defendant Entitled to Acquittal for Failure to Prove he Created a Public Risk
- Per Curiam - Civil Commitment - Trial Court Failed to Advise Appellant of his Rights
Oregon Appellate Ct - Nov 9, 2016
by: Sara Werboff • November 11, 2016 • no comments
- Burglary - Identity Theft - Defendant Entitled to MJOA for Failure to Prove Trespass for Burglary and State Failed to Prove Venue for ID Theft
- Jury Instructions - Instruction on Forcible Compulsion was Plain Error but Did Not Warrant Reversal
- Vindictive Sentencing - Sentence Vindictive When Trial Court Imposed Harsher Sentence for Exercising Right to Trial
- Appeal and Review - Court Had Jurisdiction Over Appeal But Claim Was Unreviewable
- Post-Conviction Relief - Counsel Not Ineffective for Failing to Let Petitioner Plea to Misdemeanor
- Pro Se Defendant Did Not Validly Waive by Misconduct his Right to Representation
- Vindictive Sentencing - Double Jeopardy - Vouching Issues - Remanding for Resentencing but Otherwise Affirming Convictions
- Vouching - Miranda - Detective's Statements to Defendant During Interrogation Were Not Vouching and No Miranda Violation for Statements Made to DHS
- Civil Commitment - Appellant Was Not a Danger to Others and Could Provide Basic Needs
- Per Curiam - Reversing Attorney Fee Award
- Per Curiam - Evidence Legally Insufficient for Civil Commitment
- Per Curiam - Under Previous Version of Civil Commitment Statute Evidence is Legally Insufficient
- Per Curiam - Juvenile Dependency - Record Below Insufficient to Support Jurisdiction
- Per Curiam - Termination of Parental Rights - Mother's Inadequate Assistance of Counsel Claim Fails
- Per Curiam - Post-Conviction Relief - PCR Court Did Not Make Sufficient Findings In the Judgment
Oregon Appellate Ct - Nov 2, 2016
by: Sara Werboff • November 4, 2016 • no comments
- First-Degree Criminal Mistreatment - "Take" Under Statute Does Not Require Intent to Permanently Deprive
- Sentencing - Court Lacked Authority to Impose No-Contact Order for Incarceration and PPS Sentence
- Juvenile Dependency - Insufficient Evidence of Risk of Harm to Children's Welfare
- Appeal and Review - Order Determining that Defendant's Statements are Confessions is Not Appealable
- Evidence - Reversal Required Because Record Did Not Establish that Court Conducted 403 Balancing
- Contempt - Evidence Did Not Show that Defendant "Willfully" Violated Restraining Order
- Per Curiam - Reversing "Mandatory State Amt"
- Per Curiam - Reversing Compensatory Fine
- Per Curiam - Reversing Attorney Fees
- Per Curiam - Civil Commitment - Insufficient Proof for Civil Commitment
Oregon Appellate Ct - Oct 26, 2016
by: Sara Werboff • October 28, 2016 • no comments
- DUII - Judgment of Conviction Not Required to Prove Predicate DUII if there is a Finding of Guilt
- Civil Commitment - Failure to Prove Appellant was a Danger to Others
- DNA Testing - Defendant Entitled to Court-Appointed Counsel
- Expert Testimony - CARES Interviewer was Expert on Grooming and her Testimony was Not Scientific Evidence
- Indictments - Indictment Subject to Heightened Pleading Requirements for ORICO Offenses
- First-Degree Burglary - Defendant's Own Unlawful Overnight Use of Building Not Sufficient to Render the Building a Dwelling
- Juvenile Dependency - Lack of Service of Dependency Petition
Oregon Supreme Ct - Oct 20, 2016
by: Sara Werboff • October 21, 2016 • no comments
- State Habeas Corpus - An Inmate Transferred Out of State has the Right to Challenge Conditions of Confinement in Oregon
Oregon Appellate Ct - Oct 19, 2016
by: Sara Werboff • October 21, 2016 • no comments
- Vindictive Sentencing - Trial Court Imposed Vindictive Sentence for Relying on Conduct in Crimes Reversed on Appeal
- Burglary - Defendant Not Guilty of Burglary Because He Had Authorization to be In Coworker's Office
- Fines and Fees - Trial Court Lacked Authority to Impose a Compensatory Fine
- Denial of Continuance - Trial Court Did Not Abuse Discretion in Denying Continuance for Pro Se Defendant to Subpoena Police
- Plea Agreements - State Breached Plea Agreement by Seeking Restitution
- Civil Commitment - Record Legally Insufficient to Support Civil Commitment
- Juvenile Dependency - Appeal Dismissed as Moot
- Search & Seizure - Search Incident to Arrest was Lawful
- Juvenile Delinquency - Court is Required to Make Specific Findings Why Out-of-Home Placement is Necessary
- Per Curiam - Error to Impose Restitution and Suspend SNAP Benefits
- Per Curiam - Sentence Exceeded Statutory Maximum
- Per Curiam - Reversing Mandatory State Amt and Affirming Attorney Fee Judgment
- Per Curiam - Reversing Attorney Fee Judgment
- Per Curiam - Reversing Attorney Fee Judgment
Oregon Supreme Ct - Oct 13, 2016
by: Sara Werboff • October 14, 2016 • no comments
- Administrative Subpoena for Bank Records Did Not Violate Article I, section 9
Oregon Appellate Ct - Oct 12, 2016
by: Sara Werboff • October 14, 2016 • no comments
- Exculpatory Evidence - Complainant Was Required to Comply with Subpoena Duces Tecum for her Computer
- Interrogation of Represented Defendant was Unlawful and His Confession to Multiple Robberies Should Have Been Suppressed
- State Presented Insufficient Evidence that Defendant "Harbored or Concealed" for Purposes of Hindering Prosecution
- Consecutive Sentences Unwarranted When No Evidence to Show Defendant Intended to Commit Multiple Crimes
- Merger - Third-Degree Rape and Second-Degree Sexual Abuse Counts Should Merge
- Attorney Fees - No Plain Error when Evidence of Defendant's Employability in Record
- Juvenile Dependency - Juvenile Court Lacked Authority to Order DHS to Undo DHS's Administrative Actions
- Juvenile Dependency and Delinquency - Juvenile Court Lacked Authority to Order Youth to OYA Custody
Oregon Supreme Ct - Oct 6, 2016
by: Sara Werboff • October 10, 2016 • no comments
- Search and Seizure - Defendant Has a Possessory Interest in Undelivered Mail and Seizure was Unlawful
