Oregon Court of Appeals

Opinions Filed in June 2021

Dept. of Human Services v. C. W.

To change a permanency plan from reunification to anything else, under ORS 419B.476, DHS must prove by a preponderance of the evidence both: (1) that DHS made "reasonable efforts" to reunify the child with mother; and (2) that, notwithstanding those efforts, mother's progress was not sufficient to allow reunification. Dept. of Human Services v. V. A. R., 301 Ore. App. 565, 567, 456 P3d 681 (2019).

Area(s) of Law:
  • Family Law

Pistol Resources, LLC v. McNeely

The material terms of an easement agreement are explicitly "to obtain the right to use the existing roads and to construct and use roads across lands of the other for forest management purposes and for the purpose of transporting logs and other forest products, agricultural products and minerals" and desired to "grant, one to the other, such rights." Sander v. Nicholson, 306 Ore. App. 167, 174, 473 P3d 1113, rev den, 367 Ore. 290, 476 P.3d 1255 (2020).

Area(s) of Law:
  • Property Law

Pohlman v. Cain

“Preservation principles apply in the context of post-conviction relief and, as a general rule, arguments not made to the post-conviction court in support of a claim will not be considered on appeal.” Hale v. Belleque, 255 Or App 653, 660, 298 P3d 596, adh’d to on recons, 258 Or App 587, 312 P3d 533, rev den, 354 Or 597 (2013).

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

State v. Allen

“In Lawson/James, the court held that the threshold inquiry from Classen—whether there had been suggestive police procedures—was unnecessary as a preliminary and independent inquiry: ‘There is no reason to hinder the analysis of eyewitness reliability with purposeless distinctions between suggestiveness and other sources of unreliability.’” State v. Wesley, 254 Or App 697, 711, 295 P3d 1147, rev den, 354 Or 62 (2013)(quoting  Lawson/James, 352 Or at 747).

Area(s) of Law:
  • Criminal Law

State v. Farris

A probation condition violates the Oregon Constitution if its terms are not sufficiently explicit to inform those subjects to them as to what conduct will render them in violation of the condition.

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

State v. Hollins

Observations by an officer, with articulable, relevant training and experience of a hand-to-hand transaction near a "hot spot" for drug and weapon activity objectively support reasonable suspicion. State v. Walker, 277 Or App. 397, 402, 372 P3d 540, rev den, 360 Or 423 (2016).

Area(s) of Law:
  • Criminal Procedure

State v. Lasheski

Post-opinion dismissal motions are disfavored by the court and will be granted only when the appellant presents a compelling reason for dismissal.

Area(s) of Law:
  • Appellate Procedure

State v. Lora

Evidence found during a warrantless search must be obtained in a reasonable manner and as such, evidence found pursuant to an unlawful seizure is inadmissible.

Area(s) of Law:
  • Criminal Procedure

State v. Perez-Salas

Where a building consists of separate units, including but not limited to, separate apartments, offices, or rented rooms, each unit, in addition to being a part of the same building, is a separate building.

Area(s) of Law:
  • Criminal Law

Charlton v. Ed Staub And Sons Petroleum, Inc.

“Aid-or-abet liability under ORS 659A.030(1)(g) is no limited to employers and employees. 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.” Hernandez v. Catholic Health Initiatives, 311 Or App 70, 80-81 (2021).

Area(s) of Law:
  • Employment Law

Dept. of Human Services v. J. D. R.

"DHS's efforts are not reasonable when they are not sufficiently aimed at alleviating the specific controlling jurisdictional basis." Dept. of Human Services v. L.A.K., 306 Or App 706, 716, 474 P3d 925 (2020).

Area(s) of Law:
  • Juvenile Law

Mahanoy Area Sch. Dist. v. B.L.

Schools have the authority to regulate some off-campus student speech without violating the First Amendment.

Area(s) of Law:
  • Constitutional Law

State v. Postlethwait

ORS 161.067(1) provides, “when the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations.”

Area(s) of Law:
  • Criminal Procedure

State v. Reid

The officer’s testimony that defendant “failed,” when viewed in the context of testimony about standardized tests, would have led the jury to believe that the tests had been scientifically calibrated to detect impairment. State v. Beltran-Chavez, 286 Or App 590 (2017).

Area(s) of Law:
  • Evidence

State v. Tellez-Suarez

"In determining whether there was an invocation [of the right to counsel] at all, and if so, whether it was equivocal or unequivocal, [the court] look[s] to 'the defendant's words, in light of the totality of the circumstances at and preceding the time they were uttered, to ascertain whether a reasonable officer would have understood that the defendant was invoking that right.'" State v. Avila-Nava, 356 Or 600, 609, 341 P3d 714 (2014).

Area(s) of Law:
  • Criminal Procedure

State v. Thomas

ORS 138.105(9) bars review when a "[sentence is] imposed pursuant to agreement [between the defendant and the state], it [is] a specific sentence, and the trial court imposed that agreed-upon specific sentence." State v. Silsby, 282 Or App 104, 110-13, 386 P3d 172 (2016), rev den, 360 Or 752 (2017).

Area(s) of Law:
  • Criminal Procedure

Kelly v. State Farm Fire and Casualty Co.

ORS 742.208 requires that fire insurance policies contain the provision that concealment, misrepresentation, or fraud of material facts by the insured voids the entire policy. A misrepresentation is material if it is “relevant and germane to the insurer’s investigation as it was then proceeding.” Callaway v. Sublimity Ins. Co., 123 Or App 18, 23 (1993). 

Area(s) of Law:
  • Insurance Law

OR-OSHA v. United Parcel Service, Inc.

Under OAR 437-001-0025, OR-OSHA’s only express interpretive constraints are those that OR-OSHA, itself, mandates, but “rules shall be liberally construed to accomplish the preventative purposes expressed in the [OSEA].”

Area(s) of Law:
  • Administrative Law

Sachdev v. Oregon Medical Board

Administrative procedures are reviewed for constitutional violations by balancing the individual and governmental interests. Morrissey v. Brewer, 408 US 471, 481 (1972). When issuing a final order, “the rational connection between the facts and the legal conclusion it draws from them” must be clearly articulable. Ross v. Springfield School Dist. No. 19, 294 Or 357, 370 (1982).

Area(s) of Law:
  • Administrative Law

Schaefer v. Oregon Aviation Board

LUBA has an obligation to adopt findings of compatibility only "when it adopts the final facility plan." OAR 738-130-0055(6). Any previously approved versions of a Master Plan must be part of the record before LUBA. OAR 661-010-0025(1)(b). Whether an airport is a "rural airport" as described by ORS 836.642 is a completely different question than whether the proposed land uses are rural or urban.

Area(s) of Law:
  • Land Use

Senvoy, LLC v. Employment Department

“A party must provide the trial court with an explanation of [its] objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately.” State v. Vanornum, 354 Or 614, 632 (2013).

Area(s) of Law:
  • Civil Procedure

Service Employees Int'l Union Local 503 v. U of O

The Employment Relations Board "must assess the third Colton factor in its own right... without reference to [its] ultimate conclusion that the totality of the circumstances weighs in favor of disclosure under" ORS 243.672(1)(e). Oregon School Employees Association, Chapter 68 v. Colton School District 53, Case No. C-124-81 R 5, 6 PECBR 5027, 5031 (1982).

Area(s) of Law:
  • Labor Law

State v. Dart

ORS 161.200 requires that a defendant’s perception of a threat be reasonable as gauged by an objective “reasonable person” standard and not a subjective, defendant specific standard for the choice of evils defense.

Area(s) of Law:
  • Criminal Procedure

State v. Estrada-Robles

Since the trial court’s decision in 2019, the U.S. Supreme Court ruled on Ramos v. Louisiana, 590 140 S Ct 1390 (2020), which declared non-unanimous verdicts to violate the Sixth Amendment.

Area(s) of Law:
  • Criminal Procedure

State v. Anotta

Pursuant to ORS 137.010, it is error for the court to impose that fee outside the defendant's presence because doing so prevents the defendant from arguing for such a suspension. State v. Baccaro, 300 Or. App. 131, 137 (2019).

Area(s) of Law:
  • Criminal Law

State v. Bilton

It is well settled that a trial court errors when imposing a DUII fee without first announcing it at sentencing.

Area(s) of Law:
  • Criminal Procedure

State v. Coats

A “sufficient pause” for purposes of ORS 161.067(3) means a “temporary or brief cessation of a defendant’s criminal conduct that occurs between repeated violations and is so marked in scope or quality that it affords a defendant the opportunity to renounce his or her criminal intent.” State v. Huffman, 234 Or App 177, 184, 227 P3d 1206 (2010).

Area(s) of Law:
  • Criminal Procedure

State v. Gayman

Operators of motor assisted scooters are not generally subject to the provisions of the vehicle code that apply to motor vehicles and their operators because motor assisted scooters are not physically capable of operating in the same manner as a motor vehicle, and the vehicle code reflects that distinction.

Area(s) of Law:
  • Criminal Law

State v. Macy

“It is error for a trial court to impose a fine or fee as part of a sentence on a misdemeanor conviction in a judgment when that fine or fee was not previously announced in open court at the defendant’s sentencing hearing.” State v. Tison, 292 Or App 369, 374 (2018).

Area(s) of Law:
  • Criminal Procedure

State v. Phillips

Protective measures taken by police officers must be proportionate to the perceived threat, reasonable suspicion would develop if a Defendant took some substantial step towards the end alleged.

Area(s) of Law:
  • Criminal Procedure

State v. Tatman

A person commits the crime of endangering the welfare of a minor when the person subjects a child to prolonged presence in a location where “a principal or substantial use of the place is to facilitate unlawful drug activity.” State v. Gonzalez-Valenzuela, 358 OR 451, 473 (2015).

Area(s) of Law:
  • Criminal Law

Edwards v. Cavenham Forest Industries

Compensation may be recovered for medical services for conditions caused in material part by the original injury or for conditions consequential to the original injury, where the original injury is the major contributing cause of the consequential condition. ORS 656.245(1)(a).

Area(s) of Law:
  • Workers Compensation

Hercenberger v. Hercenberger

ORS 33.105(1) provides several options for a court to impose remedial sanctions. If a trial court has other lawful means to enforce a judgment, such as those provided by ORS 33.105(1)(f), any error in enforcing the judgment in the manner it chose is therefore harmless.

Area(s) of Law:
  • Civil Law

MAT Inc. v. American Tower Asset Sub, LLC.

Evidence of privileged communications pertaining to alleged fraudulent concealment meets the threshold provided by State v. Bray. 281 Or App 584, 616, 383 P3d 883 (2016), aff'd 363 Or 226, 422 P3d 250 (2018).

Area(s) of Law:
  • Contract Law

State v. C. A. M.-D.

Restitution is appropriate when the state presents evidence that the criminal activities have caused economic damages. State v. McClelland, 278 Or App 138, 141, 372 P3d 614, rev den, 360 Or 423 (2016). A causal connection requires that the defendant’s criminal conduct be a “but for” cause of the victim’s damages and that the damages were a reasonably foreseeable result of the defendant’s criminal conduct. State v. Emerine, 308 Or App 211, 216-17, 480 P3d 308 (2020).

Area(s) of Law:
  • Criminal Law

State v. Phillips

Pursuant to ORS 144.791, the trial court must obtain a PSI before sentencing a defendant for a felony sexual offense. State v. Biles, 87 Or 63, 68, 597 P2d 808 (1979).

Area(s) of Law:
  • Criminal Procedure

State v. Sheikhuna

The State needs only to prove that Defendant was aware of the assaultive nature of his conduct and that his conduct in fact caused the injury. State v. Barnes, 329 Or. 327, 337-38 (1999).

Area(s) of Law:
  • Criminal Law

Stewart v. Board of Parole

Under ORS 183.482(8)(c), “substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding.”

Area(s) of Law:
  • Administrative Law

Strand v. Garvin

According to ORS 107.135(1), a party seeking to modify a judgment as to parenting time must serve the notice on the other party in the manner provided under ORCP 7, and within 30 days of service, the served party must file a written response with the court. ORS 107.135(4). An error may arise when a trial court fails to “make a record reflecting an exercise of discretion”, further, the court must "supply . . . enough information to enable appellate courts to engage in meaningful review of the court’s exercise of discretion.” Ray Klein, Inc. v. Wade, 358 Or 374 (2015). 

Area(s) of Law:
  • Civil Procedure

State v. Craigen

Questioning a defendant, outside of counsel, about new criminal conduct is not prohibited by Article I, section 11 when that conduct is: (1) different in nature from pending charges, (2) separated by a substantial amount of time from the pending charges, and (3) investigated by different officers than those that investigated the criminal activity responsible for the pending charges. State v. Craigen, 295 Or App 17, 432 P3d 274 (2018).

Area(s) of Law:
  • Criminal Procedure

State v. Rodriguez-Aquino

Confessions are presumptively involuntary and the burden lies with the interrogator to prove, by a preponderance of the evidence, that a defendant’s will was not overcome by the inducement held out by the interrogator. State v. Vasquez-Santiago, 301 Or App 90, 106, 456 P3d 270 (2019); State v. Powell, 352 Or 210, 222, 282 P3d 845 (2012).

Area(s) of Law:
  • Criminal Procedure

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