Oregon Appellate Ct - Sept 21, 2016

Revision as of 16:02, September 22, 2016

State v. Krause, 281 Or App 143 (2016) (Hadlock, C.J.) (Egan, J., dissenting)

State v. Werner, 281 Or App 154 (2016) (Duncan, P.J.)

Jury Concurrence Instruction - Defendant Entitled to Instruction in Fourth-Degree Assault Case

In this fourth-degree assault case, the state alleged one assault but argued that defendant caused two distinct physical injuries, accordingly, the trial court erred when it refused to give a jury concurrence instruction. At defendant's trial, the state presented evidence that defendant had injured his girlfriend by causing her to scrape her knee and by putting his hands around her neck and constricting her breathing. These incidents took place at different points on the same night. The state alleged a single assault. Defendant moved for the state to elect a theory, but the trial court denied that motion. Defendant thereafter requested a jury concurrence, or Boots, instruction which would require the jury to agree to the underlying physical injury. The court holds that where, as here, the state does not elect a theory and the evidence permits the jury to find multiple, separate occurrences of the single crime, a concurrence instruction is required.

State v. Teagues, 281 Or App 182 (2016) (Duncan, P.J.)

State v. Markwell, 281 Or App 196 (2016) (Duncan, P.J.)

State v. Belle, 281 Or App 208 (2016) (Egan, J.)

State v. Stout, 281 Or App 263 (2016) (Shorr, J.)

Probation Revocation - Probationer Does Not Have Due Process Right to Discovery of his Probation File

The court holds that the due process rights afforded to probationers facing revocation proceedings do not include the right to discovery of exculpatory evidence in a probation file, when that file is not used by the state in the revocation proceedings. Here, the state did not use the probation file and instead called defendant's probation officer to testify to the violations. Defendant asserted that he had a Fourteenth Amendment right to review his probation file and was prejudiced by the state's denial of that right. The court notes that a defendant facing revocation proceedings is entitled to fewer due process rights than a defendant facing criminal charges, and the rights previously recognized do not include the right to seek discovery of a probation file that the state does not use as evidence.

State v. Presock, 281 Or App 277 (Shorr, J.)

Dept. of Human Services v. B.P., 281 Or App 218 (2016) (Egan, J.)

Dept. of Human Services v. S.C.T., 281 Or App 246 (2016) (Devore, J.)

Porter v. Board of Parole, 281 Or App 237 (2016) (Devore, J.)