Oregon Appellate Ct - Dec 21, 2016

Revision as of 13:03, December 24, 2016

State v. Dickas, 283 Or App 59 (2016) (Sercombe, P.J.)

State v. Grismore, 283 Or App 71 (2016) (Egan, J.)

Denial of MJOA and Overruling Vouching Objection Was Not Error but Trial Court Plainly Erred in Imposing Attorney Fees

The court reverses as plain error a $16,000 attorney fee award, but affirms defendant's other assignments of error: a vouching objection when the state elicited a staged emotional statement from the victim, and an MJOA on a second count of first-degree rape. The victim in this case accused defendant, her uncle, of various sex offenses that had occurred several years prior. During trial, the victim testified that defendant had penetrated her vagina with his penis on one occasion but she had told police and the forensic interviewer that it had happened twice. Defendant moved for an MJOA and the state asserted that it intended to argue to the jury to convict of only one rape because it had not produced sufficient evidence of the second rape. The trial court denied the MJOA. The state did so argue, but acknowledged that there was other evidence that the jury could consider. On appeal, the court affirms the denial of the MJOA because there was evidence that the victim had been penetrated twice, even if she testified differently. The prosecutor's argument that he did not think he could prove the second rape was not "evidence."

During the victim's testimony, the prosecutor asked her to look at defendant and tell him that she was telling the truth. Defendant objected, arguing that the state was asking the victim to vouch for herself. The court concludes that the victim's staged comment was not vouching because vouching is improper when one witness vouches for the credibility of another witness.

Finally, the court reverses the attorney fee award. Defendant received a 600-month prison sentence and there was no evidence that he had any assets to pay the $16,000 sum.

State v. Valdez, 283 Or App 77 (2016) (Tookey, J.)

DHS v. A.I.W., 283 Or App 89 (2016) (Flynn, J.)

State v. Herrington, 283 Or App 93 (2016) (Shorr, J.)

Defendant's Evidentiary Claims Were Unpreserved but Trial Court's Failure to Merge Guilty Verdicts Was Plain Error

The court reverses defendant's convictions for first-degree assault with a firearm and UUW with a firearm with instructions to merge the guilty verdicts and enter a single conviction for first-degree assault with a firearm. The court rejects defendant's remaining claims as unpreserved. Defendant shot her domestic partner, T, in the chest. At trial, defendant contended that T was abusive and she had armed herself in self-defense and the gun accidentally discharged in a struggle. Defendant sought to introduce evidence that T had been abusive toward his ex-wife. On appeal, defendant argued that the evidence was relevant to establish a plan by T to commit and get away with acts of violence. However, defendant did not make that argument below, instead arguing it was relevant to show a pattern of behavior. Because defendant raises a qualitatively different ground of admissibility, the claim of error is unpreserved. Defendant also argued that she was entitled to cross-examine T with allegations he had made in a restraining order against his ex-wife. On appeal, defendant invokes the LeClair methodology. However, because she failed to do so below, this claim of error also is unpreserved. Finally, the court concludes that the trial court plainly erred in failing to merge the guilty verdicts for assault and UUW. The court rejects the state's counterargument that defendant invited the error because defendant did not address the issue below and therefore was not instrumental in bringing the error about.

State v. Bond, 283 Or App 101 (2016) (Haselton, S.J.)

Per Curiam - Attorney Fees - Trial Court Plainly Erred in Imposing $634 in Attorney Fees

The court accepts the state's concession that the trial court plainly erred in imposing $634 in attorney fees and exercises its discretion to correct the error in light of the amount of fees ordered, defendant's 50-month prison term, and the lack of evidence of defendant's ability to pay the fees.

State v. Ruiz, 283 Or App 110 (2016) (per curiam)

Per Curiam - Civil Commitment - State Presented Insufficient Evidence to Support Civil Commitment

The court accepts the state's concession that it failed to present legally sufficient evidence to support appellant's involuntary commitment.

State v. M.C.R. 283 Or App 112 (2016) (per curiam)