Oregon Court of Appeals

Opinions Filed in April 2021

State v. Harris

A conviction of reckless endangerment of another person requires: (1) the defendant to have carried out an act; (2) the defendant’s actions created a “substantial risk of serious physical injury to another person;” (3) the defendant’s actions were a gross deviation from a sensible standard of care; (4) the defendant was aware of the risk; and (5) the defendant’s actions were a conscious disregard of the risk. State v. Nelson, 224 Or App 398, 402-03, 198 P3d 439 (2008).

Area(s) of Law:
  • Criminal Law

State v. Moore

The reasonable suspicion standard “is met when an officer can point to specific and articulable facts that give rise to a reasonable inference that the defendant committed or was about to commit a specific crime or type of crime.” State v. Maciel-Figueroa, 361 Or 163, 165, 389 P3d 1121 (2017).

Area(s) of Law:
  • Criminal Procedure

State v. Oxford

The scope of the consent defines the scope of the intrusion under Article I, section 9, of the Oregon Constitution. State v. Wyman, 59 Or App 542, 545, 651 P2d 195 (1982). Consent to administer emergency aid does not necessarily give an officer consent to remain or reenter premises once that function has ceased, and consent to enter initially for one purpose does not mean that different officers can enter for a different purpose. See State v. Will, 131 Or App 498, 503, 885 P2d 715 (1994).

Area(s) of Law:
  • Criminal Procedure

Gladd v. Lucarelli

A FAPA restraining order is available upon a showing that (1) the Petitioner has been the victim of abuse committed by the Respondent within the 180 days preceding the filing of the petition, (2) there is an imminent danger of further abuse to the Petitioner, and (3) the Respondent represents a credible threat to the physical safety of the Petitioner or the Petitioner’s child. ORS 107.718(1)

Area(s) of Law:
  • Criminal Procedure

Lincoln Loan Co. v. Estate of George Geppert

Under ORS 88.120(c), foreclosure of a mortgage is allowed if no lien or right of a third party has attached to the property after the expiration of the 10-year period.

Area(s) of Law:
  • Property Law

State v. Etzel

Scientific knowledge cannot assist the trier of fact if it is not 'scientifically valid.' State v. O'Key, 321 Ore. 285, 293, 899 P2d 663 (1995).

Area(s) of Law:
  • Criminal Law

State v. Etzel

Under OEC 702, whenever scientific or other specialized knowledge is used to assist a jury in understanding evidence or determining a fact in issue, a qualified expert witness may testify thereto. However, only scientifically valid knowledge can assist the jury, therefore, when evidence is scientific in nature, the state must “comply with the standards for admission of scientific evidence.” State v. Henley, 363 Or 284, 422 P3d 217 (2018).

Area(s) of Law:
  • Evidence

State v. Henley

When evaluating the scientific validity of testimony under OEC 702, some subject matter may require a more flexible evaluation, utilizing criteria like 1) whether the testimony is generally accepted in the field, 2) whether there is supporting literature for the testimony, and 3) whether the testimony is inordinately novel or subjective. State v. Perry, 347 Or 110, 122, 218 P3d 95 (2009).

Area(s) of Law:
  • Criminal Law

State v. Hooper

“[T]he trial court is required to instruct the jury that, to convict, it must determine that the state has proved beyond a reasonable doubt that [the] defendant acted with a culpable mental state.” State v. Gray, 261 Or App 121, 322 P3d 1094 (2014).

Area(s) of Law:
  • Criminal Procedure

State v. Jasperse

OEC 403 allows relevant evidence to be excluded if its probative value is substantially outweighed by the danger of confusion of the issues or needless presentation of cumulative evidence.

Area(s) of Law:
  • Criminal Law

Bruntz-Ferguson v. Liberty Mutual Ins.

Under the work-connection test, in order to be compensable, an injury must “arise out of” and be “in the course of” employment. Norpac Foods, Inc. v. Gilmore, 318 Or 363, 366, 867 P2d 1373 (1994).

Area(s) of Law:
  • Employment Law

Glenn v. Glenn

Pursuant ORS 105.615, title vests in a cotenant when the cotenant has maintained continuous adverse possession of a property for 20 years and has satisfied all property taxes accrued against the property during that time.

Area(s) of Law:
  • Property Law

Jenkins v. Cain

“For claims of ineffective counsel based on failure to investigate, establishing the performance prong is a fact specific endeavor, which must consider the ‘context of the legal proceeding at issue.’” Snyder v. Amsberry, 306 Or. App. 439, 449-450 (2020).

Area(s) of Law:
  • Civil Procedure

State v. Brass

Pursuant ORS 137.123(5)(b), a court can sentence a person consecutively for an offense if the crime caused or threatened loss, harm, or injury to a different victim than was harmed or threatened by other offenses committed during a single criminal episode.

Area(s) of Law:
  • Criminal Procedure

State v. Payne

A passenger in a traffic stop is lawfully seized when there is "something more” than a mere traffic violation. State v. T.T., 308 Or App 408, 418, 479 P3d 598 (2021). Safety concerns are a legitimate justification for seizure when the totality of circumstances show: (1) there are “specific and articulable facts” that establish a “reasonable suspicion” that the person poses an “immediate threat to the officer’s or another person’s safety,” and (2) the officer’s actions were reasonable. State v. Madden, 363 Or 703, 713, 427 P3d 157 (2018).

Area(s) of Law:
  • Criminal Procedure

State v. Peek

Under State v. Sholedice/Smith, 364 Or 146, 162 (2018), removing “property obstructing a public thoroughfare” outside the owner’s presence does not interfere with the owner’s property rights to constitute a seizure. Under State v. Faulkner, 102 Or App 417, 420-21 (1990), using a flashlight to see what one could otherwise see in daylight does not constitute a search.

Area(s) of Law:
  • Criminal Procedure

Banerjee and Fiorillo

ORS 19.270(1) provides that the Court of Appeals only has jurisdiction to hear a case when appellant meets the time and manner requirements of ORS 19.240, 19.250, and 19.255. Generally, this means the notice of appeal is filed and served on the parties within 30 days of the entry of the judgment appealed.

Area(s) of Law:
  • Appellate Procedure

Burns v. American Family Mutual Ins.

An insurer is liable for arbitration-related attorney fees under ORS 742.061(1) if the insurer refuses to pay the damages awarded during binding arbitration.

Area(s) of Law:
  • Insurance Law

Department of Human Services v. K.S.S.

To change a permanency plan from reunification to adoption, “the proponent of the change must prove that, despite DHS’s reasonable efforts to reunify the parent with his or her child, the parent has not made sufficient progress for the ward to safely return home.” Dept. of Human Services v. C. E., 288 Or App 649, 656, 406 P3d 211 (2017) (internal quotation  marks  omitted); ORS 419B.476(2)(a).

Area(s) of Law:
  • Family Law

Dept. of Human Services v. C. C.

A child’s welfare is at risk, and thus the juvenile court has jurisdiction, if the child is unprotected from circumstances that present a “current threat of serious loss or injury and there is a reasonable likelihood that the threat will be realized.” Dept. of Human Services v. C. J. T., 258 Or App 57, 61, 308 P3d 307 (2013). Whether an issue has been preserved turns on “whether the policies underlying the preservation rule have been adequately met.” State v. Parkins, 346 Or 333, 341, 221 P3d 262 (2009).

Area(s) of Law:
  • Juvenile Law

McCoin v. PSRB

Under ORS 161.341, a person may be discharged from the board’s jurisdiction even if the person has a mental disease or defect, if that person “no longer presents a substantial danger to others.”

Area(s) of Law:
  • Civil Commitment

McMullin v. Amsberry

To establish a violation of adequate counsel it must be shown that counsel “failed to exercise reasonable professional skill and judgement,” and second, that petitioner “suffered prejudice as a result of counsel’s inadequacy.” Johnson v. Premo, 361 Or 688, 699, 399 P3d 431 (2017).

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

Royal Blue Organics v. City of Springfield

In reviewing whether LUBA’s decision was “unlawful in substance,” ORS 197.850(9)(a), we review the pertinent city code provisions to determine whether LUBA interpreted them consistently with the ordinary principles of statutory, or code, construction.

Area(s) of Law:
  • Land Use

State of Oregon v. Phillip Mark Gregg

Non-unanimous jury instructions are plain error. However, when the jury poll is unanimous, the error is considered to be “harmless beyond a reasonable doubt.” State v. Ramos, 367 Or 292, 320 (2020).

Area(s) of Law:
  • Criminal Law

State v. Johns

A court’s acceptance of a nonunanimous verdict is plainly erroneous and a court may use its discretion to correct such error. State v. Ulery, 366 Or 500, 464 P3d 1123 (2020).

Area(s) of Law:
  • Criminal Procedure

State v. Paye

Under ORS 161.067, when a conviction is predicated on an ongoing course of conduct, other charges involving the same conduct in the same period must merge unless otherwise barred by statute.

Area(s) of Law:
  • Criminal Procedure

State v. Pryor

Pursuant ORS 137.172, a trial court retains authority after entry of judgment to modify the judgment in order to remedy any clerical errors or erroneous terms. State v. Johnson, 242 Or App 279, 285, 255 P3d 547, rev den, 350 Or 530 (2011).

Area(s) of Law:
  • Criminal Procedure

State v. Ralston

When determining whether a  defendant was denied a speedy trial under Article I, Section 10 of the Oregon Constitution, courts must consider three factors: (1) the length of the delay; (2) the reasons for the delay; and (3) the prejudice to the defendant. State v. Emery, 318 Or 460, 472, 869 P2d 859 (1994).

Area(s) of Law:
  • Constitutional Law

State v. Tat

An error does not qualify as plain error if the record contains competing inferences that the party may have had a strategic purpose for not objecting to sworn testimony.

Area(s) of Law:
  • Criminal Procedure

State v. Gilbreath

ORS 163.411 provides that a person commits unlawful sexual penetration in the first degree if the person penetrates the vagina, anus, or penis of another with any object other than the penis or mouth no “sexual or injurious intent” is required.

Area(s) of Law:
  • Criminal Law

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