Oregon Appellate Ct - March 1, 2017

Revision as of 13:56, March 5, 2017

Jackson v. Franke, 284 Or App 1 (2017) (Hadlock, C.J.)

State v. J.T.C., 284 Or App 38 (2017) (Hadlock, C.J.) (Egan, J., dissenting)

Tiner v. Premo, 284 Or App 59 (2017) (Armstrong, P.J.)

State v. Watts, 284 Or App 146 (2017) (Tookey, J.)

Sufficiency of Evidence - Reconsideration - Acknowledging Factual Mistake but Adhering to Original Opinion

On reconsideration, the court adheres to its original decision as modified but corrects a misstatement of fact. Specifically, defendant moved for reconsideration contending that when the court upheld the trial court's denial of a judgment of acquittal on a second count of first-degree rape, it improperly construed the victim's testimony to conclude she was referring to penetration by defendant's penis when she was actually referring to penetration by defendant's hands. The court acknowledges this mistake but concludes that there was sufficient other evidence in the record to support the conclusion that there were two rapes.

State v. Valdez, 284 Or App 153 (2017) (Tookey, J.)

Sentencing - Trial Court has Authority Under ORS 137.750 to Find Defendant Ineligible for a Reduction in Sentence

The court rejects defendant's argument that the trial court lacked authority to deny defendant eligibility for a "reduction in sentence" under ORS 137.750(1). Defendant did not challenge the sufficiency of the trial court's findings that there were substantial and compelling reasons to deny him eligibility for any form of temporary leave from custody, work release, or program of conditional or supervised release. But, defendant argued that the trial court's authority only extends to those programs, and it does not have authority to preclude any "reduction in sentence." Defendant's argument is premised on the structure of ORS 137.750(1) which provides that the trial court shall find the defendant eligible, "unless the court finds * * * substantial and compelling reasons to order that the defendant not be considered for such leave, release or program." The court concludes that the doctrine of the last antecedent applies and by using "such" in the unless clause, the legislature intended to refer to "reduction in sentence" as well as to the other forms of "leave, release, or program." Further, the court points to case law that implicitly rejects defendant's argument that the trial court lacks authority to find a defendant ineligible for a reduction in sentence.

State v. Berger, 284 Or App 156 (2017) (Tookey, J.)

Juvenile Dependency - Record Legally Sufficient to Support Juvenile Court Jurisdiction

The court rejects parents' challenge to the juvenile court's denial of their motion to dismiss jurisdiction. The juvenile court took jurisdiction over child on the grounds that both parents have limited cognitive abilities that interfere with their ability to safely parent. Parents both made progress in a parenting program, and argued that the underlying basis of jurisdiction was no longer present. The court concludes that there was evidence that parents' cognitive impairments persist. Further there was evidence that parents' cognitive limitations interfered with their ability to recognize hazardous situations for their toddler-aged child. Finally, there was evidence that parents will not seek parenting assistance unless required to do so by DHS.

DHS v. A.F., 284 Or App 162 (2017) (Flynn, J.)

Post-Conviction Relief - PCR Court Erred in Granting Summary Judgment for State

The court reverses the post-conviction court's grant of summary judgment on two alternative grounds, concluding that the first basis was incorrect as a matter of law and that petitioner presented sufficient evidence to create a material issue of fact on the second basis. Petitioner was originally tried in 2004 for committing several offenses jointly with five co-defendants. The trial court, without objection, gave the "natural and probable consequences" accomplice liability jury instruction that was later disapproved in Lopez-Minjarez. Lopez-Minjarez was decided about two years after petitioner initiated this PCR action. Petitioner then filed an amended petition, contending that trial counsel was ineffective for failing to object to the jury instruction.

The state moved for summary judgment and the post-conviction court granted that motion. On appeal, the court concludes that the post-conviction erred when it concluded that petitioner was required to proffer evidence that all reasonable defense attorneys were objecting to the jury instruction in 2004. That is because petitioner presented evidence that the state of the law in 2004 indicated that an objection to the jury instruction would have had merit and that trial counsel's failure to do so was unreasonable. The court further concludes that the post-conviction court erred in concluding that petitioner presented insufficient evidence of prejudice to create an issue of fact.

Lizarraga-Regalado v. Premo, 284 Or App 176 (2017) (Haselton, S.J.)

Per Curiam - Sex Abuse Guilty Verdicts Merged

The court accepts the state's concession that the trial court erred when it failed to merge defendant's two guilty verdicts for first-degree sex abuse.

State v. Vandeberg, 284 Or App 190 (2017) (per curiam)

Per Curiam - Insufficient Evidence of Witness Tampering

The court accepts the state's concession that there was insufficient evidence to convict defendant of witness tampering.

State v. Horn, 284 Or App 192 (2017) (per curiam)

Per Curiam - Sex Abuse Guilty Verdicts Merged

The court concludes that defendant's guilty verdicts for three counts of first-degree sex abuse should merge because they were part of the same conduct or criminal episode and they were not separated by a sufficient pause.

State v. Williams, 284 Or App 194 (2017) (per curiam)