Oregon Court of Appeals

Opinions Filed in May 2021

Ceaser v. Dept. of Human Services

Under ORS 183.310 to 183.690, “[r]eview of a contested case shall be confined to the record, and the court shall not substitute its judgment for that of the agency as to any issue of fact or agency discretion.”

Area(s) of Law:
  • Administrative Law

Much v. Doe

“An application for an order is a motion. Every motion, unless made during trial, shall be in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought.” ORCP 14.

Area(s) of Law:
  • Civil Procedure

State v. Jones

Under ORS 138.105(5)(a) and (b) the appellate court can only review a conviction when (1) “the trial court’s adverse determination of a pretrial motion reserved a conditional plea of guilty or no contest under ORS 135.335” and (2) “[if] the trial court erred by not merging determinations of guilt of two or more offenses, unless the entry of separate convictions results from an agreement between the state and the defendant.”

Area(s) of Law:
  • Appellate Procedure

State v. McIntyre

Police unlawfully expanded the scope of the traffic stop even though they did not unlawfully extend duration, this case is analogous to State v. Hallam, 307 Or App 796 (2020).

Area(s) of Law:
  • Evidence

State v. Miller

When there is no direct evidence of substantial pain, the trial court must decide whether the evidence would allow a rational jury to reasonably conclude that the victim experienced considerable pain and whether the duration of such pain was more than short-lived. State v. Guzman, 276 Or App 208, 215, 366 P3d 816 (2016).

Area(s) of Law:
  • Criminal Law

State v. Payton

The Oregon Supreme Court decided in State v. Henderson that “because the defendant developed the intent to commit an additional crime—and did commit an additional crime—while unlawfully present in the house” the defendant was guilty of first-degree burglary. 366 Or 14, 455 P3d 503, (2019).

Area(s) of Law:
  • Criminal Law

State v. Tharp

“[A]n inference cannot be "supported by mere speculation" but "must be reasonable, based on the record.” See Aguirre-Rodriguez II, 367 Or. at 623

Area(s) of Law:
  • Criminal Law

State v. Vinson

For accomplice liability to attach, the defendant (1) must have the requisite mens rea and (2) must perform the requisite actus reus. The Court determined the evidence presented did not prove either intent or the requisite action needed to establish guilt as an accomplice.

Area(s) of Law:
  • Criminal Law

Ungerman and Ungerman

A parent seeking to change custody must demonstrate that since the original judgment, circumstances relevant to the proper care of the child have changed and that it would be in the child’s best interest to change custody. The relevant circumstances must be material and have “injuriously affected” the child or have “affected the custodial parent’s ‘ability or inclination to care for the child in the best possible manner.’” Botofan-Miller and Miller, 365 Or 504, 520, 446 P3d 1280 (2019) (quoting Boldt and Boldt, 344 Or 1, 9, 176 P3d 388 (2008)).

Area(s) of Law:
  • Family Law

A.J.T v. Croft

Following a contested hearing, under the FAPA, the record must include evidence (1) of past abuse committed by the respondent (within 180 days of filing), (2) that the petitioner reasonably fears for her physical safety, and (3) that the respondent represents a credible threat to the petitioner’s safety or the safety of her child. ORS 107.716(3).

Area(s) of Law:
  • Family Abuse Prevention Act

Appleyard v. Port of Portland

“[A]n invitee’s failure to exercise reasonable care for his or her own safety may be the basis of a comparative-fault defense if the invitee’s negligence relates and contributes to the harm or risk of harm created by the defendant’s negligence.” Appleyard v. Port of Portland, 311 Or App 498 (2021).

Area(s) of Law:
  • Tort Law

Luttropp and Luttropp

“Social Security benefits are not marital property and are not subject to outright division in dissolution actions,” because, “federal law preempts any state law that authorizes the assignment or transfer” of those benefits. Herald and Steadman, 355 Or 104, 112, 322 P3d 546 (2014), cert den, 574 US 1073 (2015).

Area(s) of Law:
  • Family Law

Lyons v. Beeman

The parol evidence rule, ORS 147.740 explains that “a binding, completely integrated, written agreement supersedes or discharges all agreements, written or oral, that were made before the completely integrated agreement, to the extent that the prior agreements are within the scope of the completely integrated agreement.”

Area(s) of Law:
  • Contract Law

State v. Allen

Under OEC 403, although “needless presentation of cumulative evidence” may be excluded if its probative value is substantially outweighed by the threat of prejudice, a defendant’s stipulation to “particular facts does not automatically render all other evidence touching on the same facts cumulative.”

Area(s) of Law:
  • Evidence

State v. Busch

No error exists if there are adequate grounds in the record to support the reliability of statements admitted under the domestic violence hearsay exception. State v. Wilcox, 180 Or App 557, 562, 43 P3d 1182, rev den, 334 Or 632 (2002).

Area(s) of Law:
  • Evidence

State v. McClour

In order to survive an MJOA, evidence must be present so that the factfinder “could reasonably infer that the [stolen item] possessed ‘some value,’ the minimum needed to define it as ‘property’ ” for purposes of third-degree theft.” State v. Waterhouse, 359 Or 351, 361-62, 373 P3d 131 (2016).

Area(s) of Law:
  • Criminal Procedure

State v. Shaw

A defendant’s possession of a methamphetamine pipe, without more, is insufficient to support probable cause for an arrest for possession of methamphetamine. State v. Sunderman, 304 Or App 329, 467 P3d 52 (2020).

Area(s) of Law:
  • Criminal Procedure

State v. Stephens

Because a blood draw is a search for purposes of the Fourth Amendment, a warrantless blood draw may only be conducted if an exception to the warrant requirement applies. An exigency exception exists when BAC evidence is dissipating and some factor creates pressing health, safety, or law enforcement needs that necessarily take priority over a warrant application. Mitchell  v.  Wisconsin, 139  S. Ct.  2525 (2019).

Area(s) of Law:
  • Criminal Procedure

State v. Taplin

Privacy is limited within the context of a jail cell. See State v.  Lien/Wilverding, 364 Or 750, 760, 441 P3d 185 (2019). “[P]rivacy  interests  can  be  recognized  only  by  their  association  with  a private place where the claimant has the right to exclude others.” State v. Cromb, 220 Or App 315, 325, 185 P3d 1120, rev den, 345 Or 381 (2008)

State v. Trenary-Brown

The “failure to give a concurrence instruction is not harmless when, given the evidence and the parties’ theories, jurors could have based their verdicts on different occurrences.” State v. Teagues, 281 Or App 182, 194, 383 P3d 320 (2016).

Area(s) of Law:
  • Appellate Procedure

Anderson v. Sullivan

Although a court may deny fees on fees in connection with unsuccessful aspects of a fee request, it is legally incorrect to say that a party "cannot" recover any fees on fees unless all of the requested fees were awarded.

Area(s) of Law:
  • Landlord Tenant

Box v. Oregon State Police

Under ORS 30.265(6)(f), Apparent Authority Immunity “applies to public actors who, acting without bad faith or malice, rely on their plausible interpretation of laws that turn out to be unconstitutional, invalid, or inapplicable” which does not include “preshooting tactical decisions” and “OSP’s preshooting supervisory decisions.”

Area(s) of Law:
  • Tort Law

E.H. v. Byrne

“A brief period of consensual kissing” does not establish a “sexually intimate relationship” for the purposes of a sexual abuse protective order. Under ORS 163.765(1), whether a person reasonably fears for their personal safety is determined by examining the totality of the circumstances and does not require multiple contacts between the parties.

Area(s) of Law:
  • Civil Law

Housing Land Advocates v. LCDC

Under OAR 660-015-0000(14), the totality of the circumstances may be considered when determining whether a local government has taken steps to “reasonably accommodate” housing needs within an existing urban growth boundary.

Area(s) of Law:
  • Land Use

Purdy v. Deere & Co./Norton

Not all instructional errors mandate reversal.  An erroneous jury instruction is a reversible error only if, considering the record as a whole, it substantially affects a right of the parties by enabling the jury to reach an erroneous result. Wallach v.  Allstate, 344 Or 314, 180 P3d 19 (2008).

Area(s) of Law:
  • Civil Procedure

Reed v. Kelly

To prevail on a post-conviction claim based on the right to adequate assistance of counsel, a petitioner must establish, by a preponderance of the evidence, that counsel failed to exercise reasonable professional skill and judgment, and as a result, the petitioner suffered prejudice because of counsel’s inadequacy. Delgado-Juarez v. Cain, 307 Or App 83, 475 P3d 883 (2020).

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

State v. Berglund

A "court's sentencing authority exists solely by virtue of a statutory grant of power and therefore cannot be exercised in any manner not specifically authorized." State v. Coventry, 290 Or App. 463, 464 (2018). However, a claim is not precluded by this rule when a proceeding for violating a condition of probation is initiated “during the probation period.” State v. Ludwig, 218 Or 483, 492 (1959).

Area(s) of Law:
  • Criminal Procedure

State v. Damper

Receipt of a nonunanimous verdict is plain error that an appellate court should exercise its discretion to review, it is an error that cannot be found harmless.

Area(s) of Law:
  • Criminal Procedure

State v. Phillips

Under OEC 404(3) “evidence of other crimes wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith,” but allows such evidence for reasons such as proof of motive, the proponent bears the burden of showing relevance.

Area(s) of Law:
  • Evidence

State v. Tinoco-Camarena

Under OEC 404(3), “evidence of other crimes wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith,” but allows such evidence for reasons such as proof of intent.

Area(s) of Law:
  • Evidence

Allied Structural v. CCB

“Except as provided in subsections (4) and (5) of this section, any person who violates any provision of this chapter or any rule adopted by the Construction Contractors Board shall  forfeit  and  pay  into  the  General  Fund  of  the  State Treasury a civil penalty in an amount determined by the board of not more than $5,000 for each offense.” ORS 701.992(1).

Area(s) of Law:
  • Administrative Law

Allman v. Allman

ORS 205.460 is “not available against a person lawfully conducting business as [a]n institution, a national bank, an out-of-state bank or an extranational institution . . . a savings bank, a federal savings bank or a subsidiary of an entity described in this paragraph[.]” ORS 205.460(7)(a).

Area(s) of Law:
  • Property Law

Dept. of Human Services v. H. C. W.

A Tribe’s right to define its own membership for Tribal purposes has long been recognized as central to its existence as an independent political community. Santa Clara Pueblo v. Martinez, 436 US 49, 72 n 32, 98 S Ct 1670, 56 L Ed 2d 106 (1978).

Area(s) of Law:
  • Indian Law

Hernandez v. Catholic Health Initiatives

Anyone qualifying as a "person" under ORS 659A.001(9) may be an aider or abettor of an unlawful employment practice in a way that subjects them to liability under ORS 659A.030(1)(g).

Area(s) of Law:
  • Employment Law

State v. Acosta

The identity of a declarant regarding an out-of-court statement is an issue of conditional relevance evaluated under the standards for identity as a condition precedent to admissibility under OEC 901. If the party presenting an out-of-court statement as evidence presents a prima facie case that their opponent is the declarant, the court must admit and instruct the jury to consider that evidence only if the jury determines that the opponent was the declarant. State v. Park, 140 Or App 507, 511, 916 P2d 334, rev den, 323 Or 690 (1996).

Area(s) of Law:
  • Evidence

State v. Bledsoe

The crime of interference with a peace officer under ORS 162.247(1)(b) states that a person commits the crime by knowingly “refus[ing] to obey a lawful order” given by an officer. The exception under ORS 162.247(3)(b) states that passive resistance “does not apply.”

Area(s) of Law:
  • Criminal Law

State v. Escudero

Absent an independent constitutional justification, a drug-detecting dog generally cannot, consistent with Article I, section 9, sniff a car for drugs during a traffic stop. State v. Soto-Navarro, 309 Or. App. 218, 223 (2021).

Area(s) of Law:
  • Constitutional Law

State v. Greinier

“[A] person is justified in using physical force upon another person for self-defense or to defend a third person from what the person reasonably believes to be the use or imminent use of unlawful physical force, and the person may use a degree of force which the person reasonably believes to be necessary for the purpose.” ORS 161.209.

Area(s) of Law:
  • Criminal Law

State v. Johnson

According to ORS 136.425(2), the state must corroborate a confession with “some other proof” that “the jury could draw an inference that tends to prove: (1) the injury or harm specified in the crime occurred and (2) that this injury or harm was caused by someone’s criminal activity.” State v. Moreno, 276 Or App 102, 108, 366 P3d 839, rev den, 359 Or 525, cert den, 137 S Ct 342 (2016). 

Area(s) of Law:
  • Criminal Law

State v. Shevyakov

Asking for consent to search, including requesting that a suspect perform FSTs, constitutes impermissible interrogation unless the law precludes the use of the person’s refusal against that person at trial.

Area(s) of Law:
  • Criminal Law

Angeney v. DMV

Under ORS 813.410(6), a suspension is valid where a person committed a DUII, refused a breath test after being “informed under ORS 813.100 of rights and consequences as described under ORS 813.130,” and the person was given written notice of intent to suspend.

Area(s) of Law:
  • Administrative Law

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