Oregon Court of Appeals

Opinions Filed in July 2021

Criminal Justice Reform Clinic v. Board of Parole

OAR 255-032-0005(4) and (5) allow for the consideration of youth as a mitigating factor and, therefore, do not facially violate the Eighth Amendment. ORS 161.620 does not require that the board rules mandate immediate parole eligibility for juveniles. Engweiler v. Board of Parole, 343 Or. 536, 548, 175 P.3d 408 (2007) (Engweiler I).

Area(s) of Law:
  • Criminal Procedure

Dept. of Human Services v. T. H.

Under ORS 19.415(3)(b), "the Court of Appeals, acting in its sole discretion, may try the cause anew upon the record or make one or more factual findings anew upon the record."  Unless there is evidence that would support a different outcome in a juvenile dependency case, under ORS 19.415(3)(b) the Court of Appeals may deny de novo review of factual findings made by the juvenile court. 

Area(s) of Law:
  • Family Law

Keffer v. A. R. M.

In 2003, the legislature altered the provisions of the juvenile dependency code and removed all references to the probate code under ORS 419B.366, thereby making guardianship proceedings under the juvenile dependency code self-contained.

Area(s) of Law:
  • Family Law

Rushton v. Oregon Medical Board

Reports of expert witnesses obtained by health professional regulatory boards in the course of investigation are not disclosed to the licensee or applicant. ORS 676.175(3).

Area(s) of Law:
  • Administrative Law

State v. C.L.

To permit commitment on the basis of dangerousness to others, the state must establish "that actual future violence is highly likely." State v. M. A., 276 Or App at 629. “Past acts, including verbal acts, can justify a finding of dangerousness, if they ‘form a foundation for predicting future dangerousness.’” M. R., 225 Or App at 574.

Area(s) of Law:
  • Appellate Procedure

State v. J.D.J

In order to demonstrate that an individual in incapable of caring for their own wellbeing, the State must "prove that the person 'is unable to provide for his or her basic personal needs in a way that leaves the person at nonspeculative risk of serious physical harm—meaning that the person's safe survival will be compromised—in the near future.'" State v. R. L. M., 309 Or App 545, 548-49(2021) (quoting State v. M. A. E., 299 Or App 231, 240 (2019)).

Area(s) of Law:
  • Civil Commitment

State v. Martin

If cross examination does not increase the reliability of a statement admitted pursuant to a firmly rooted hearsay exception, then, by definition, allowing confrontation would not provide defendant a meaningful opportunity to test the veracity of the evidence for purposes of due process. See Morrissey, 408 U.S. at 484.

Area(s) of Law:
  • Evidence

State v. Porter

ORS 137.123(5) provides the court with discretion to impose consecutive sentences for separate convictions arising out of continuous and uninterrupted conduct so long as there's an indication of willingness to commit more than one criminal offense or the criminal offense caused or created a greater or qualitatively different loss, injury or harm during the conduct.

Area(s) of Law:
  • Criminal Law

State v. Ramirez-Carmona

“In reviewing the voluntariness of a defendant’s consent to a search, we consider whether, under the totality of the circumstances, the consent was given by an act of free will or was the result of coercion, express or implied.” State v. Moore, 354 Or 493, 505 (2013).

Area(s) of Law:
  • Criminal Law

Kalenius v. City of Corvallis

The “firefighter’s presumption” allows a firefighter to establish the compensability of “cardiovascular-renal disease” as an occupational disease without presenting direct evidence of causation by employment.

Area(s) of Law:
  • Employment Law

Peterson Mach. Co. v. May

"Equity has no power to compel a man who changes employers to wipe clean the slate of his memory." Peerless Pattern Co. v. Pictorial Rev. Co., 147 AD 715, 717, 132 NYS 37 (NY App Div 1911).

Area(s) of Law:
  • Employment Law

Springleaf Home Equity, Inc. v. Jones

It is premature for a trial court to deny attorney fees where a defendant has pleaded a claim for attorney fees and was entitled to them as a matter of law.

Area(s) of Law:
  • Civil Procedure

State v. Leinweber

OAR 257-030-0130 requires that a breath test operator “is certain that the subject has not * * * vomited, or regurgitated * * * for at least fifteen minutes before taking the test.”

Area(s) of Law:
  • Criminal Procedure

State v. Witt

Evidence of general wrongdoing or suspicious behavior, standing alone, will not ordinarily be sufficient to permit a reasonable inference that a defendant knew they were using a stolen car.

Area(s) of Law:
  • Criminal Law

Beneficial Oregon, Inc. v. Bivins

ORS 86A.183(1)(c) prohibits mortgage loan originators from failing to account to persons interested in money or property received in connection with a mortgage loan.

Area(s) of Law:
  • Consumer Credit

Bowers v. Betschart

When two or more amendments to a county charter are submitted to the electors of the county at the same election, they shall be so submitted that each amendment shall be voted on separately.

Area(s) of Law:
  • Constitutional Law

Burley v. Clackamas County

ORS 30.272 provides that under the Oregon Torts Claim Act (OTCA), the award against local governments is capped and not to exceed $666,700 for each occurrence. 

Area(s) of Law:
  • Tort Law

J.D.B. v. Muller

To support the issuance of an SPO, a petitioner must establish at least two unwanted contacts which each must cause subjective and objectively reasonable alarm or coercion.

Area(s) of Law:
  • Civil Stalking Protective Order

Kine v. Deschutes County

"When ... a subdivision plat overlays an entire tract of land ... that plat operates on the entirety of the tract, vacating any preexisting plot lines unless the plat says otherwise." Weyerhauser Real Estate Development Co. v. Polk County, 246 Or App 548, 559, 267 P3d 855 (2011).

Area(s) of Law:
  • Land Use

Ortega v. Martin

ORS 105.682 limits an owner's liability for injuries on land if the owner "directly or indirectly permits" the public to use the land for recreational purposes; "an owner can 'directly or indirectly permit' the use of its land for the purpose of the recreational immunity statutes, even if the public already has a right to use the land for that purpose." McCormick v. State Parks and Recreation Dept., 366 Or 452, 473 (2020).

Area(s) of Law:
  • Tort Law

Patton v. Cox

"We must affirm despite trial court error if there is little likelihood that the error affected the verdict." State v. Parkerson, 310 Ore. App. 271, 278, 484 P3d 356 (2021). "To make that determination, the court considers the instructions as a whole and in the context of the evidence and record at trial, including the parties' theories of the case with respect to the various charges and defenses at issue." Id. (internal quotation marks omitted).

Area(s) of Law:
  • Contract Law

State v. Belleque

A defect in an indictment or a defective waiver of an indictment or preliminary hearing does not divest a trial court of subject matter jurisdiction.

Area(s) of Law:
  • Criminal Procedure

State v. Brown

“Preservation rules are 'pragmatic as well as prudential,' and they are intended to promote the administration of justice, not subvert it.” Peeples v. Lampert, 345 Or 209, 220, 191 P3d 637 (2008).

Area(s) of Law:
  • Constitutional Law

State v. Canepa

A defendant's history of drug possession, acknowledgment of recent drug use, and association with a potential criminal associate are not sufficiently specific so as to give rise to reasonable grounds to request the defendant's consent to search their vehicle. State v. Maciel-Figueroa, 361 Or 163, 179, 389 P3d 1121 (2017).

Area(s) of Law:
  • Criminal Procedure

State v. D.A.

A person may be involuntarily committed for mental health treatment for up to 180 days if, after a hearing, the court determines that he or she is a “person with mental illness”, which includes a “person who, because of a mental disorder,” is “[d]dangerous to self or others” by clear and convincing evidence. ORS 426.130(1)(a)(C); ORS 426.005(1)(f)(A). A person’s condition at the time of hearing as well as the context of the person’s history is understood to determine whether a person is a danger to others. See, e.g., State v. L.R., 283 Or App 618, 625 (2017).

Area(s) of Law:
  • Civil Commitment

State v. Evans

The crime of initiating a false report under ORS 162.375 requires that a person “knowingly initiate a false alarm or report that is transmitted to a . . . law enforcement agency . . . that deals with injuries involv[ing] danger to life or property.” However, the statute only prohibits false statements that would initiate an investigation, not any false statements to police. State v. McCrorey, 216 Or App 301, 306 (2007).

Area(s) of Law:
  • Criminal Law

State v. Fox

Restitution is statutorily required when the defendant has been convicted of criminal activity, the victim suffered economic damages, and there exists a causal relationship between the criminal activity and the economic damages. State v. Aguirre-Rodriguez, 367 Or 641, 620 (2020). The burden of proof is on the state to present sufficient evidence that the bills were reasonable and necessary, however, under McClelland, medical bills alone are not sufficient to meet the standard for establishing restitution and the testimony provided regarding medical bills is analogous as they are not medical professionals.

Area(s) of Law:
  • Criminal Law

State v. Sjogren

A building, as defined by ORS 164.205(1), can be a structure that is mostly enclosed and adapted to accommodate business operations.

Area(s) of Law:
  • Civil Law

City of Eugene v. Adams

Neither the Eighth Amendment nor Article I, section 16, prohibit the enforcement of criminal trespass laws against the homeless. "Vague, unspecified, or generalized potential harms are insufficient" to prove that the injury the defendant sought to avoid was imminent; the defendant must show "'that the threat of injury existed at the time that defendant committed his offense.'" State v. Freih, 270 Or App 555, 557, 348 P3d 324 (2015).

Area(s) of Law:
  • Criminal Law

City of Portland v. Building Codes Div.

Under ORS 455.77(2), investigative authority, which is authorized under subsection (1), covers a violation or omission by enforcement of codes when . . . .”

Area(s) of Law:
  • Municipal Law

Moir v. Ozeruga

A notice of appeal must be served and filed within 30 days after the judgment appealed from is entered in the register, the timeline is extended only for corrected portions and portions affected by the correction. There can only be one prevailing party for each claim for the purposes of claiming attorney fees.

Area(s) of Law:
  • Civil Procedure

Pedro v. SAIF

As defined by ORS 656.005(7)(a)(B), a combined condition is one that entails two separate conditions which combine and occur “[i]f an otherwise compensable injury combines at any time with a preexisting condition to cause or prolong disability or a need for treatment,” and injury in this context refers to a medical condition, not an accident. Brown v. SAIF, 361 Or 241, 272 (2017).

Area(s) of Law:
  • Workers Compensation

State v. Camphouse

"Where the evidence permit[s] a finding that defendant committed the charged offense on any one or more of several instances, defendant [is] entitled to an instruction that jurors ha[ve] to agree on which instance [is] the basis for their verdict." State v. Slaviak, 296 Or App 805, 810-11, 440 P3d 114 (2019). However, failure to provide such an instruction is harmless if "there is little likelihood that, if it had been given the concurrence instruction[,] ... the jury would have reached a different result." State v. Ashkins, 357 Or 642, 659, 357 P3d 490 (2015)

Area(s) of Law:
  • Criminal Procedure

State v. Cervantes

ORS 164.245 does not contain a “clarity requirement” for notice of property from which a person is excluded.

Area(s) of Law:
  • Criminal Law

State v. Mull

To be found guilty of theft by receiving, the state must prove that defendant must have known or believed that the property was stolen. Circumstantial evidence may be relied on to make reasonable inferences but, if the conclusion requires too great of an inferential leap, then it will be insufficient.

Area(s) of Law:
  • Criminal Law

State v. Philips

On review of the court’s jury instruction for legal error, “[a] trial court commits reversible error when it incorrectly instructs a jury on a material element . . . And that instructional error allows the jury to reach a legal erroneous outcome,” such as jury unanimity under the due process requirement for conviction. State v. Harper, 296 Or App 125, 126 (2019). 

Area(s) of Law:
  • Criminal Procedure

State v. Reasoner

There is no constitutional requirement that all delegations of legislative power must be accompanied by a statement of standards circumscribing its exercise.’ Warren v. Marion County, 222 Or 307, 313, 353 P2d 257 (1960). Rather, the procedure established for the exercise of that power must furnish adequate safeguards against the arbitrary exercise of the delegated power.

Area(s) of Law:
  • Juvenile Law

State v. Turay

After finding that valid search commands can be severed and assessed independently from invalid search commands, the trial court must hold a hearing so that it "can determine what evidence is admissible pursuant to the valid portions of the warrant and what evidence must be suppressed because it was obtained based on the invalid portion of the warrant." State v. Frischman, 298 Or App 186, 188-89, 445 P3d 946, rev den, 365 Or 721 (2019).

Area(s) of Law:
  • Criminal Procedure

Tokarski v. Wildfang

When a director acted in a way that was clearly prohibited by the governing documents, or failed to take an action that was clearly required by the governing documents, a factfinder could find that the director acted with reckless disregard to the corporation's best interest, as that interest has been defined by the corporation's governing documents, and, thus, with reckless disregard to the attendant breach of fiduciary duty. WSB Investments, LLC v. Pronghorn Devel. Co., LLC, 269 Or App 342, 362 (2015).

Area(s) of Law:
  • Contract Law

Waterfront Pearl Condo. Owners v. Waterfront Pearl

An “injury” is discovered when a plaintiff knows or should have known of the existence of three elements: (1) harm; (2) causation; and (3) tortious conduct. The statute of limitations starts running when the plaintiff knows or should have known facts that would make a reasonable person aware of a substantial possibility that each of the elements exists. The plaintiff must be aware of the conduct and the “tortious nature” of the conduct.

Area(s) of Law:
  • Tort Law

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