Oregon Appellate Ct - Oct 5, 2016

Revision as of 08:10, October 11, 2016

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State v. Bray, 281 Or App 235 (2016) (Haselton, S.J.)

Jury Concurrence - Concurrence Instruction Required when Evidence of Both Principal and Aider and Abettor Theory

In this case, where the jury was instructed that it could find defendant guilty of identity theft and theft charges as either a principal or an aider/abettor, the trial court erred when it failed to instruct the jury that it must concur in the theory of liability. Defendant and his girlfriend obtained customer account information from 10 customers from a Pizza Caboose restaurant. At trial, defendant's girlfriend described defendant's role in the scheme as more limited. A reasonable juror could find defendant guilty as an aider or abettor or principal, thus, without a concurrence instruction, there was no assurance that the required number of jurors agreed as to the theory of guilt.

State v. Wright, 281 Or App 399 (Devore, J.)

Juvenile Dependency - Juvenile Court Erred in Finding Jurisdiction

The court reverses a wardship determination. Father, who resided in Arizona, sought custody of his two children from Oregon. Arizona, however, had declined to approve father as a placement for the children under the Interstate Compact for the Placement of Children (ICPC). The juvenile court relied on that negative ICPC determination in finding jurisdiction over the children. The court holds that ICPC determination applies only after jurisdiction is found, and itself cannot be a basis for jurisdiction. Because there was insufficient evidence of a specific risk to the children, the juvenile court erred in finding jurisdiction.

DHS v. Z.E.W., 281 Or App 394 (2016) (Duncan, P.J.)

Per Curiam - "Right to Apply for Driving Privileges" is Different than Right to Seek Restoration of Driving Privileges

The court affirms a judgment that provided, in part, that defendant's driving privileges were permanently revoked following his third conviction for DUII and that defendant's "right to apply for driving privileges" was also permanently revoked. Defendant argued that the judgment was overbroad because a defendant can seek restoration of driving privileges after 10 years. The court clarifies that the right to apply for driving privileges concerns only a person's right to seek a license from the DMV and does not apply to a person's ability to seek restoration of driving privileges from the circuit court under ORS 809.235(2).

State v. Gonzales-Acevedo, 281 Or App 449 (2016) (per curiam)

Per Curiam - Attorney Fees

The court reverses the trial court's imposition of $634 in court-appointed attorney fees. Imposition of attorney fees was plain error and the court exercises its discretion to correct the error because in light of defendant's circumstances, the attorney fee judgment is substantial.

State v. Cloman, 281 Or App 452 (2016) (per curiam)

Per Curiam - Remanding for Resentencing Due to Discrepancy between Court's Pronouncements and Judgment

The court remands for resentencing because defendant's judgment stated he was ineligible for any form of sentence reduction, but the trial court announced that he would be eligible for "credit for time served as well as good time and work time." The state conceded that the discrepancy between the trial court's oral pronouncements and the written judgment required the court to remand the entire case for resentencing.

State v. Pauley, 281 Or App 454 (2016) (per curiam)

Per Curiam - Civil Commitment - Sufficiency of Evidence

The court accepts the state's concession that the evidence was legally insufficient to show that appellant was a person with mental illness.

State v. J.S., 281 Or App 457 (2016) (per curiam)