Oregon Court of Appeals

Opinions Filed in January 2015

Davis and Davis

Under ORS 107.105, if the property at issue is a personal injury settlement, the equal contribution presumption is overcome when the injured spouse can prove that the other spouse did not have a part in the settlement and failed to claim damages for consortium.

Area(s) of Law:
  • Family Law

Dowell v. Oregon Mutual Ins. Co.

Under ORS 742.524(1)(a), personal injury protection (PIP) medical benefits do not include a covered individual’s transportation costs incurred when attending medical appointments or obtaining medication.

Area(s) of Law:
  • Insurance Law

State v. J.M.M.

Mere presence during the planning and commission of a crime, or acquiescence alone, is insufficient to find a defendant guilty of aiding and abetting a crime under ORS 161.155(2)(b).

Area(s) of Law:
  • Criminal Law

State v. Velykoretskykh

Notice of suspension, like a return of service, was not testimonial.

Area(s) of Law:
  • Evidence

State v. Young

Even if the officer-safety exception justifies initial seizure, once passengers are seated on the curb and backup has arrived, there’s no plausible reason why safety concerns would require reentry to the vehicle or removal of property.

Area(s) of Law:
  • Criminal Procedure

Neidhart v. Page

Notwithstanding any acceptance of partial payment, even if the right to terminate tenancy is waived based on nonpayment of rent a subsequent default gives new ground to terminate the tenancy.

Area(s) of Law:
  • Landlord Tenant

Smith v. Board of Parole

Neither due process nor Oregon's APA require parole consideration hearings under ORS 144.228 to allow subpoenas for witnesses at the hearing.

Area(s) of Law:
  • Parole and Post-Prison Supervision

Smith v. Mills

There is no Oregon statutory entitlement (under ORS 144.315, ORS 183.413, and ORS 183.445), or Constitutional entitlement (under Oregon Constitution Article 1, section 10, or the 14th Amendment of the US Constitution) to subpoena witnesses for parole consideration hearings.

Area(s) of Law:
  • Post-Conviction Relief

State ex rel Stewart v. City of Salem

Under ORS 34.210(2), a trial court has discretion to award attorney fees to a “prevailing party” and may consider the entirety of the circumstances of the litigation when determining whether to award attorney fees on remand. Additionally, the trial court has discretion to determine the reasonableness of a party’s legal position under ORS 20.075(1)(b) and may consider the totality of the circumstances of litigation under ORS 20.075(1)(e) prior to awarding attorney fees on remand.

Area(s) of Law:
  • Attorney Fees

State v. Baucum

OEC 702, and State v. O’Key require that scientific evidence presented by an expert be generally accepted, peer reviewed, with an acceptable error rate and variability, and retrograde extrapolation satisfies all of these requirements.

Area(s) of Law:
  • Evidence

State v. Heilman

Under Article I, sec. 9, of the Oregon Constitution, facts as perceived by an officer that do not constitute a violation of the law do not give rise to probable cause.

Area(s) of Law:
  • Criminal Procedure

State v. J. C. N.-V.

Under 419C.349(3), a juvenile defendant may be waived into circuit court and tried as an adult when the defendant is aware of the nature, degree of participation, and consequences of the alleged criminal act.

Area(s) of Law:
  • Juvenile Law

State v. Lee

Based on the text, context, and legislative history of the term "tampering," for the purposes of ORS 164.345(1), to "tamper" requires conduct that alters, rearranges, or changes property in a way that has an adverse effect on the property or its use.

Area(s) of Law:
  • Criminal Procedure

State v. Nistler

Under ORS 131.125(8), the statute of limitations for aggravated first-degree theft is three years, unless a theory of continuing criminal action is set forth in the indictment, which may toll the statute of limitations.

Area(s) of Law:
  • Criminal Law

State v. Slatton

ORS 164.055(1)(a) and (d) are not separate statutory provisions for the purposes of merging convictions.

Area(s) of Law:
  • Criminal Law

State v. Sundberg

Under OEC 401, an explanation as to why an alleged victim may have described her anatomy inconsistently is relevant explain her testimony.

Area(s) of Law:
  • Evidence

State v. T.C.

For a court to grant conditional release from an involuntary-commitment order, that the committed person must prove that the conditional release would be in their best interest, and that they would be adequately supervised by an able caretaker.

Area(s) of Law:
  • Civil Commitment

State v. Urbaschak

Erroneously admitted evidence that is not cumulative and relates to a central disputed issue is not harmless error.

Area(s) of Law:
  • Appellate Procedure

Vukanovich v. Kine

In regards to a Judgment Not Withstanding the Verdict, the Court will look to see if there is any evidence to support the jury’s verdict. If there is, the JNOV will not be sustained.

Area(s) of Law:
  • Civil Procedure

State v. Ross Bros. & Co., Inc.

When a party does not file an amended answer to an amended complaint, and fails to raise substantive legal arguments at trial, then they have not preserved those substantive legal arguments for appeal.

Area(s) of Law:
  • Appellate Procedure

Baker v. Premo

Trial counsel agreeing to change the terms of a plea agreement in such a way that increases the total sentence is not enough to prove constitutionally inadequate assistance of counsel if the sentencing court would have imposed the same sentence.

Area(s) of Law:
  • Post-Conviction Relief

Dept. of Human Services v. A.L.

Under ORS 419B.100(1)(c), parents entrusting the primary care of their children with paternal grandparents who do not pose a current threat is not a basis for asserting jurisdiction over children.

Area(s) of Law:
  • Juvenile Law

State v. Baiz

When a car is parked, immobile, and unoccupied at the time of a police encounter, then the car is not “mobile”, as required by the automobile exception to the warrant requirement for a police search.

Area(s) of Law:
  • Criminal Procedure

State v. Gibson

Probable cause has two aspects: the officer must subjectively believe that a crime has been committed, and that belief must be objectively reasonable under the totality of the circumstances. The facts that determine whether there is objective probable cause are the facts known by the arresting officer at the time of the arrest.

Area(s) of Law:
  • Criminal Procedure

State v. Kirkland

A trial court may conduct additional fact-finding relevant to the amount of a restitution during the sentencing phase of trial. However, a defendant can only be required to pay restitution for conduct which he was convicted of or admitted to doing.

Area(s) of Law:
  • Remedies

Wade v. Brockamp

Failure of counsel to object to a faulty jury instruction may prejudice defendant and suffice to prove ineffective assistance of counsel.

Area(s) of Law:
  • Post-Conviction Relief

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