Oregon Court of Appeals

2021

January 35 summaries

Jennewein v. MCIMetro Access Transmission Services

"Foreseeability plays a role in at least two overlapping common-law negligence determinations: (1) whether the defendant's conduct unreasonably created a foreseeable risk of harm to a protected interest of the plaintiff such that the defendant may be held liable for that conduct—formerly described in terms of 'duty' and 'breach' as measures of negligent conduct; and (2) whether, because the risk of harm was reasonably foreseeable, the defendant may be held liable to the plaintiff for the particular harm that befell the plaintiff." Piazza v. Kellim, 360 Or 58, 70 (2016).

Area(s) of Law:
  • Tort Law

McNichols v. Dept. of Fish and Wildlife

A plaintiff, unable to establish actual injury, has no standing under either ORS 183.480 or ORS 28.020 factor tests.

Area(s) of Law:
  • Administrative Law

Stanton v. Medellin

Under the ORLTA effective at the time of the landlord/tenant agreement, "neither the ORLTA nor public policy prohibit a landlord from bargaining away the landlord’s ability to terminate a tenancy..."

Area(s) of Law:
  • Landlord Tenant

State v. Buswell

Plaintiffs can recover the value of accrued sick time when they have used that earned employment benefit due to tortious injury and, consequently, are no longer able to avail themselves of that time, which otherwise would have been available for alternate uses. Under Oregon law, a plaintiff in a civil case would be entitled to damages for used sick leave under that same theory of economic loss.

Area(s) of Law:
  • Remedies

State v. M. T.

To establish a mentally ill person “is a danger to herself,” the state must establish that the person is likely to cause life-threatening physical harm to herself in the near future. State v. B. B., 240 Or App 75, 82-83, 245 P3d 697 (2010). Further, the “threat of serious physical harm” must be “particularized” and “highly probable.” State v. M. A., 276 Or App 624, 628-29, 371 P3d 495 (2016).

Area(s) of Law:
  • Civil Commitment

State v. S. A. R.

“A person is ‘dangerous to self’ for [the] purposes [of ORS 426.005(1)(f)(A)] if the person’s mental disorder puts her at a non speculative risk of serious physical harm or death in the near future, absent commitment.” State v. S.E.R., 297 Or App 121, 122, 441 P3d 254 (2019).

Area(s) of Law:
  • Civil Commitment

State v. T. T.

Officers must have reasonable suspicion that a person has committed or is about to commit a “specific type of crime”; reasonable suspicion based on “nonspecific criminal activity” is not sufficient to initiate or extend a stop. State v. Maciel-Figueroa, 361 Or 163, 180-81, 389 P3d 1121 (2017).

Area(s) of Law:
  • Juvenile Law

Davison and Schafer

Under the best-interests analysis of ORS 107.137(1), a court may consider lifestyle choices, such as moves, only if the choices “will or may cause damage to the child.” Miller and Miller, 269 Or App 436, 443, 345 P3d 472 (2015) (emphasis in original). Increased difficulty to the noncustodial parent’s ability to co-parent is “not relevant to the determination of damage.” Id. at 444. If a parent is a full-time student, imputation of full-time income is not appropriate. Bouris and Bouris, 276 Or App 637, 639, 369 P3d 1186 (2016).

Area(s) of Law:
  • Family Law

State v. Bowen

"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…a specific crime...’ State v. Maciel-Figueroa, 361 Or 163, 165, 389 P3d 1121 (2017). The officer must have a subjective belief that is objectively reasonable under the totality of the circumstances. State v. Kreis, 365 Or 659, 665, 451 P3d 954 (2019).”

Area(s) of Law:
  • Criminal Procedure

Stewart v. Albertson's, inc.

“However, we now interpret ORS 646.638 to provide that a violation by the defendant entitles the plaintiff to recover compensatory damages or $200, whichever is greater; the jury can also award punitive damages if it finds deterrence is called for and the defendant's conduct is particularly aggravated.” Crooks v. Payless Drug Stores, 285 Or 481, 490 (1979).

Area(s) of Law:
  • Remedies

Waveseer of Oregon, LLC v. Deschutes County

"ORS 215.416(8)(a) generally does not permit a county to develop land use approval standards and criteria through quasi-adjudicative decision-making; the standards must be reasonably discernible from provisions of the code itself." Zirker v. City of Bend, 233 Or App 601, 610, 227 P3d 1174, rev den, 348 Or 415 (2010).

Area(s) of Law:
  • Land Use

Olson and Olson

The phrase “reasonably incurred” as used in ORS 107.105(1)(j) is intended to qualify only “costs and expenses.” Therefore, an award of attorney fees under that provision is not limited to fees actually incurred.

Area(s) of Law:
  • Attorney Fees

State v. Ceccoi

"[A] proponent may still 'need to establish "unavailability" by showing pursuit of "other reasonable means."' . . . In determining what, if any, further efforts are required, the totality of the circumstances" applies. State v. Iseli, 366 Or 151, 173 (2020)(quoting OEC 804(1)(e)).

Area(s) of Law:
  • Evidence

State v. E. J. J.

In order to commit someone “based on dangerousness to others, there must be a causal connection between” the person’s mental disorder and his allegedly dangerous behavior; the person must be “highly likely to engage” in actual, “future violence towards others.” State v. D. A. H., 241 Or App 391, 398, 250 P3d 423 (2011); State v. S. E. R., 297 Or App 121, 122, 441 P3d 254 (2019). To commit someone based on inability to provide for basic personal needs, the State must show that the inability to provide will place the person in danger of serious physical harm in the near future. State v. M. A. E., 299 Or App 231, 240, 448 P3d 656 (2019).

Area(s) of Law:
  • Civil Commitment

State v. Jordan

“The test for voluntariness is whether, under the totality of the circumstances, the consent was given by an act of a defendant’s free will as opposed to resulting from express or implied coercion.” State v. Jepson, 254 Or App 290, 294, 292 P3d 660 (2012).

Area(s) of Law:
  • Criminal Procedure

State v. Kennedy

Evidence to show the bias of a witness is always relevant. State v. Crum, 287 Or App 541, 551-52, 403 P3d 405 (2017).

Area(s) of Law:
  • Evidence

State v. Meiser

The standard for a “defendant seeking to establish a GEI defense “must show that, at the time of the crime, as a result of a mental disease or defect (which does not include a personality disorder…), the defendant lacked the substantial capacity to appreciate the criminality of his conduct or to conform that conduct to the requirements of law.” State v. Shields, 289 Or App 44, 47, 407 P3d 940 (2017), rev den, 362 Or 794 (2018).

Area(s) of Law:
  • Criminal Law

State v. Mosley

Requiring a party to preserve an issue in the trial court serves several purposes: it permits a trial court to consider and rule on a contention, thereby possibly avoiding an error altogether or correcting one already made and it also “fosters full development of the record, which aids the trial court in making a decision and the appellate court in reviewing it.” Peeples v. Lampert, 345 Or 209, 291-20, 181 P3d 637 (2008).

Area(s) of Law:
  • Appellate Procedure

State v. Smith

It was an error for the trial court to join cases where separate incidents involved different victims, different locations, and more than one month between. The misjoinder was reversible error in one conviction, but harmless in the other conviction had the cases been tried separately.

Area(s) of Law:
  • Criminal Procedure

Vaughn v. Vaughn

“As has long been settled, and as we reaffirm today, a state court may exercise personal jurisdiction over a nonresident defendant only so long as there exist ‘minimum contacts’ between the defendant and the forum State.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).

Area(s) of Law:
  • Civil Procedure

C. R. v. Eugene School Dist. 4J

A special motion to strike under ORS 31.150 must “be filed within 60 days after service of the complaint” or at any later time, in the court’s discretion. ORS 31.152(1). Claims may be stricken if “based on written or oral statements” made during or in connection with a “proceeding authorized by law,” an “issue of public interest,” or in furtherance of “constitutional right of free speech” in connection with an issue of public interest. ORS 31.150(2).

Area(s) of Law:
  • Civil Law

Johnson v. Keiper

“A plaintiff in a medical malpractice case must offer expert testimony that, to a reasonable medical probability, the alleged breach of the standard of care caused the plaintiff’s injuries.” Cleland v. Wilcox, 273 Or 883, 887-88, 543 P2d 1032 (1975). However, certainty of the degree of harm is not by definition required to prove causation. Hansen v. Bussman, 274 Or 757, 759, 549 P2d 1265 (1976).

Area(s) of Law:
  • Tort Law

King v. Board of Parole

The Board of Parole’s order must “articulate[] the reasoning that leads from the facts to the conclusion drawn.” Dixon v. Board of Parole and Post-Prison Supervision, 257 Or App 273, 286, 306 P3d 715 (2013) (quoting Salosha, Inc. v. Lane County, 201 Or App 138, 143, 117 P3d 1047 (2005).

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

Simington Gardens, LLC v. Rock Ridge Farms, LLC

Trespass in ORS 105.815 refers to the unauthorized injury to or severance of timber or produce.

Area(s) of Law:
  • Tort Law

State ex rel Maney v. Hsu

Under the plain wording of the statute, the “trigger” for the requirement of a rehabilitation hearing “is the imposition of a minimum period of confinement.” State ex rel Engweiler v. Felton, 350 Or 592, 260 P3d 448 (2011).

Area(s) of Law:
  • Criminal Procedure

State v. Almahmood

Article I, section 9, of the Oregon Constitution, is not a limit on officer authority to approach individuals and request cooperation or information, as long as officer conduct would not “be reasonably perceived as coercive in the sense that it would cause [that individual] to reasonably believe that the officer is intentionally restraining the [individual’s] liberty or freedom of movement in a significant way—that is, in a way that exceeds the bounds of ordinary social encounters between private citizens.” State v. Backstrand, 354 Or 392, 400 (2013).

Area(s) of Law:
  • Criminal Procedure

State v. Cazee

To establish probable cause, “an officer may consider the facts in light of the officer’s training, knowledge, and experience, but that experience cannot itself supply the facts.” State v. Aguilar, 307 Or App 457, 469, 478 P3d 558 (2020).

Area(s) of Law:
  • Criminal Procedure

State v. Fockler

"[T]his court has not held that a trial court must recite on the record how it evaluated the probative and prejudicial value of evidence and how it balanced the two. Rather, as Turnidge demonstrates, a court will make a sufficient record under Mayfield if the trial court's ruling, considered in light of the parties' arguments, demonstrates that the court balanced the appropriate considerations." State v. Anderson, 363 Or 392, 406 (2018) (discussing State v. Turnidge, 359 Or 364 (2016) and State v. Mayfield, 302 Or 631 (1987)).

Area(s) of Law:
  • Evidence

State v. Goguen

Under the officer safety exception, objectively reasonable is determined by evaluating “‘any of the circumstances confronted by the officer either individually or collectively . . .  that the defendant posed an immediate threat to’” the officer or others. State v. Thomas, 276 Or App 334, 337 (2016) (quoting State v. Bates, 304 Or 519, 525 (1987)). For reasonable suspicion of criminal acts, “the officer must have a subjective belief that the person stopped has committed, or is about to commit, a crime, and that belief must be objectively reasonable under the totality of the circumstances.” State v. Kreis, 365 Or 659, 665 (2019).

Area(s) of Law:
  • Criminal Procedure

State v. Heaston

Enacting SB 302 shows the legislature’s intent that the phrase “controlled substances” generally would not include cannabis, and that the legislature made the purposeful decision to either amend or not amend statutes that previously referenced “controlled substances” but did not reference cannabis.

Area(s) of Law:
  • Criminal Law

State v. Hernandez

When considering whether an affidavit establishes probable cause for a search, reviewing courts look at the “totality of the circumstances presented in the affidavit” and the inferences that an issuing magistrate could reasonably draw from those circumstances. State v. Miser, 303 Or App 347, 352, 463 P3d 599, rev den, 366 Or 827 (2020). The “paramount consideration” of a request for a bench trial is “whether a bench trial will fully protect a defendant’s rights.” State v. Austin, 274 Or App 114, 120, 360 P3d 603 (2015).

Area(s) of Law:
  • Criminal Procedure

State v. Jensen

A criminal defendant is liable in restitution for all the economic damages that “result from” the defendant’s crime. State v. Ramos, 358 Or 581, 587, 368 P3d 446 (2016) (paraphrasing ORS 137.106(1)).

Area(s) of Law:
  • Criminal Law

State v. Moore

“The appellate decision becomes effective when the appellate judgment issues, and that appellate judgment is effective in itself, without any action of the lower court.” International Brotherhood v. Oregon Steel Mills, Inc., 180 Or App 265, 271-271, 44 P3d 600 (2002).

Area(s) of Law:
  • Civil Procedure

State v. Rideout

Under ORS 137.690, a person who has been convicted of more than one “major felony sex crime” is subject to a mandatory minimum term of 25 years. If, pursuant to the Supreme Court’s decision in Ramos, one of the two convictions is reversed, the trial court will no longer have the authority to impose a mandatory minimum sentence of 25 years under ORS 137.690 on the remining conviction.

Area(s) of Law:
  • Sentencing

State v. Thompson

"Oregon's constitutional test for affirmance despite error consists of a single inquiry: Is there little likelihood that the particular error affected the verdict? The correct focus of the inquiry regarding affirmance despite error is on the possible influence of the error on the verdict rendered, not whether this court, sitting as a fact-finder, would regard the evidence of guilt as substantial and compelling." State v. Davis, 336 Or 19, 32 (2003).

Area(s) of Law:
  • Criminal Procedure

February 28 summaries

Ellis v. Kyker

“[A] new development may be considered a legally sufficient change in circumstances only if it is shown that the change has ‘injuriously affected the child’ or affected the custodial parent’s ‘ability or inclination to care for the child in the best possible manner.’” Botofan-Miller, 365 Or 504, 520-21 (2019)(quoting Boldt and Boldt, 344 Or 1,9 (2008)).

Area(s) of Law:
  • Family Law

H.L.P. v. Jones

"To obtain an SPO under Oregon’s civil stalking statute, a petitioner must establish the following elements by a preponderance of the evidence: '(1) That the respondent engaged in "repeated and unwanted contact" with the petitioner; (2) that the petitioner was subjectively alarmed or coerced by the contact and that such alarm or coercion was objectively reasonable; (3) that the petitioner subjectively experienced apprehension about personal safety as a result of the contact and that such apprehension was objectively reasonable; and (4) that the respondent acted with the requisite mental state.'” Retherford v. Wafula, 305 Or App 344, 352, 471 P3d 786 (2020).

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

Kirresh v. Gill

ORS 93.910 provides, “Whenever a contract for transfer or conveyance of an interest in real property provides a forfeiture remedy . . . default under the contract may be enforced only after notice . . . .” In conjunction, ORS 93.930(1) provides, “When a contract for conveyance of real property has been forfeited in accordance with its terms . . . .”

Area(s) of Law:
  • Civil Procedure

State v. Arellano-Sanchez

Area(s) of Law:
  • Criminal Procedure

State v. Barden

Under OEC 901, the proponent must present “some evidence sufficient to support a finding that the matter in question is what its proponent claims so as to admit the evidence to the jury—for the jury remains the ultimate arbiter on authenticity, veracity, and reliability of evidence.”

Area(s) of Law:
  • Evidence

State v. Henderson

ORS 137.540(2) grants a trial court broad discretion in imposing special conditions of probation, but those conditions must be “reasonably related to the crime of conviction or the needs of the probationer for the protection of the public or reformation of the probationer, or both.” State v. Gaskill, 250 Or App 100, 102-03, 279 P3d 275 (2012).

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

State v. Horner

Reversal of unanimous verdicts after a jury instruction allowing nonunanimous verdicts is not required. State v. Ciraulo, 367 Or 350, 353, 478 P3d 502 (2020). In light of Ramos, accepting “nonunanimous guilty verdicts for a nonpetty offense constitutes plain error.” State v. Ulery, 366 Or 500, 464 P3d 1123 (2020).

Area(s) of Law:
  • Criminal Procedure

State v. Merrill

Ramos established that Sixth Amendment requires that all jury verdicts for serious criminal offenses be unanimous. However, error may merit reversal only if the error substantially injured the rights of the petitioner. See State v. Ulery, 366 Or 500, 504 (2020). If an erroneously instructed jury still returns a unanimous verdict, then the error does not merit reversal. State v. Flores Ramos, 367 Or 292, 334 (2020).

Area(s) of Law:
  • Criminal Law

State v. Nelson

Concerns addressed by the instruction are not present when the testimony of accomplice witnesses does not shift blame. State v. Simson, 308 Or. 102, 110 (1989).

Area(s) of Law:
  • Evidence

State v. Peterson

“When legal disputes are encompassed in the arguments for and against a motion for judgment of acquittal, we resolve them as we would any other legal question.” State v. Turnidge, 359 Or. 364, 455 (2016).

Area(s) of Law:
  • Civil Procedure

State v. Pryor

During questioning, a promise may be found to be improper inducement if the questioner “communicates the idea of a temporal benefit or disadvantage… in exchange for a confession,” and that offer is then accepted in order to get the benefit. State v. Chavez-Meza, 301 Or App 373, 387 (2019); State v. Simmons, 302 Or App 133, 139 (2020).

Area(s) of Law:
  • Criminal Procedure

State v. Pusztai

“Generally, we will affirm a judgment, even after concluding that a trial court erred in sentencing, when the record shows that the trial court could have imposed the same total sentence without the error, and we are ‘completely confident’ that the trial court would impose the same sentence if the case were remanded for resentencing.” State v. Ortega-Gonsalez, 287 Or App 526, 530, 404 P3d 1081 (2017) (quoting State v. Calderon-Ortiz, 222 Or App 1, 8, 191 P3d 808 (2008), rev den, 345 Or 618 (2009)).

Area(s) of Law:
  • Criminal Procedure

State v. S. S.

Under ORS 426.005(1)(f)(A), an individual may be involuntarily committed if the individual: (1) engaged in behavior that “caused or risked serious harm” and (2) the behavior is likely to recur. State v. T. Y., 285 Or App 21, 24, 396 P3d 986 (2017); State v. S. R. J., 281 Or App 741, 751, 386 P3d 99 (2016).

Area(s) of Law:
  • Civil Commitment

Thompson v. Portland Adventist Medical Center

“[T]o toll the limitations period, a plaintiff’s mental condition ‘must have been such as to have actually barred her from knowing that [the defendant] had harmed her.’” Gaspar v. Village Missions, 154 Or App 286, 292 (1998) (emphasis in original). The severity of a plaintiff’s mental condition to qualify for such a bar is a factual question. Roberts v. Drew, 105 Or App 251, 255 (1991).

Area(s) of Law:
  • Civil Procedure

Forbus v. Board of Parole

“[S]entencing for aggravated murder is provided for solely by ORS 163.105 and is not covered under the guidelines.” State v. Davilla, 157 Or App 639, 647, 972 P2d 902 (1998), rev den, 334 Or 76 (2002).

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

J.N.D v. Dehkordi

"Any person who has been the victim of abuse within the preceding 180 days may petition the circuit court for relief under ORS 107.700 (Short title) to 107.735 (Duties of State Court Administrator), if the person is in imminent danger of further abuse from the abuser." ORS 107.710(1).

Area(s) of Law:
  • Family Law

McDonnell v. Premo

“Although the Post-Conviction Hearing Act does not explicitly list summary judgment as a procedure available to challenge claims, the Act does not preclude it.”

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

State v. Avdeyev

A witness may not call a complaint witness a victim because it “may undermine the presumption of defendant’s innocence because it assumes defendant’s guilt.” State v. Sperou, 365 Or 121, 133, 442 P3d 581 (2019). However, a prosecutor using the term “victim” in reference to a complaining witness is allowed only in appropriate contexts, or “the trial court has the discretion to fashion an appropriate remedy, ‘subject to the defendant’s right to a fair trial'” if the usage is improper. Id. at 136.

Area(s) of Law:
  • Evidence

State v. Burris

“ORS 166.270(4) states an affirmative defense to the felony offense described in ORS 166.270. That affirmative defense explicitly applies only to the felony offense described in ORS 166.270(1), and there is no similar provision with respect to the misdemeanor offense of unlawful possession of a weapon set forth in ORS 166.250.”

Area(s) of Law:
  • Criminal Procedure

State v. Dean

Under Article I, section 12, of the Oregon Constitution, police may continue speaking with a defendant who has invoked the rights to remain silent or to counsel only to ask questions or make statements that are “normally attendant to arrest and custody.” State v. Schmidtke, 290 Or App 880, 885, 417 P3d 563 (2018). Any statements obtained in violation of those rights must be suppressed.

Area(s) of Law:
  • Constitutional Law

State v. Skeen

"Crime victims are entitled to restitution for ‘economic damages’ caused by defendant’s crime” ORS 137.106. “’[E]conomic damages’ are objectively verifiable out-of-pocket losses that a person could recover against the defendant in a civil action arising out of the defendant’s criminal activities.” State v. Herfurth, 283 Or App 149, 154, 388 P3d 1104 (2016), rev den, 361 Or 350 (2017).

Area(s) of Law:
  • Criminal Law

State v. Smith

“[W]hen a party objects to testimony as improper vouching, a court must determine whether the testimony provides an opinion on truthfulness or, instead, provides a tool that the factfinder could use in assessing credibility. That determination does not necessarily require an assessment of whether that specific tool is permitted under the rules of evidence.” State v. Black (Black II), 364 Or. 579, 593 (2019).

Area(s) of Law:
  • Evidence

State v. Soto-Navarro

"When conducting an investigation during a lawful stop, 'activities' of law enforcement must 'be reasonably related to that investigation and reasonably necessary to effectuate it.'" State v. Arreola-Botello, 365 Or. 695 (2019) (quoting State v. Watson, 353 Or 768, 781 (2013)).

Area(s) of Law:
  • Criminal Procedure

State v. O’Hare

The possession of “tools of the trade” might, in some circumstances, be sufficient to support a conviction for delivery of methamphetamine under ORS 475.890, depending on what those tools were, how many were possessed, and the surrounding context. However, to conclude that so little—mere possession of things that could be used to deliver drugs—could support a delivery conviction would “unlawfully punish a defendant for the status of being a drug dealer rather than for the act of transferring or attempting to transfer controlled substances.”

Area(s) of Law:
  • Criminal Law

State v. Poston

“All convictions for serious offenses that were based on nonunanimous verdicts involved constitutional error - a violation of the defendant’s Sixth Amendment right to jury unanimity.” State v. Flores Ramos, 367 Or. 292, 295 (2020).

Area(s) of Law:
  • Criminal Procedure

Varde v. Run! Day Camp For Dogs, LLC

"An appellate court cannot exercise appellate jurisdiction over an appeal unless a statute authorizes an appeal from the judgment or order that the trial court entered.” Rauda v. Oregon Roses, Inc., 329 Or 265, 268, 986 P2d 1157 (1999). ORS 19.245 outlines when an appeal from a stipulated judgment may occur: when specifically provided by the judgment and when an “appeal presents a justiciable controversy.”

Area(s) of Law:
  • Civil Procedure

State v. Lasheki

Under ORS 161.067(3), “criminal charges based on multiple violations of the same statutory provision will not merge if a ‘sufficient pause’ separates these violations.” Additionally, “a ‘pause’ occurs between two statutory violations only if the defendant’s commission of one violation ends before the second violation begins.” State v. Ortiz-Rico, 303 Or App 78, 85, 462 P3d 741 (2020).

Area(s) of Law:
  • Criminal Law

State v. Benson

To establish that there was a violation of due process, a defendant must show "there was 'substantial, actual prejudice, ' and the focus of that inquiry is on ‘whether the delay violated our society’s fundamental conceptions of justice, fair play, and decency.” State v. Stokes, 350 Or 44, 64, 248 P3d 953 (2011).

Area(s) of Law:
  • Criminal Procedure

March 39 summaries

Bowers v. Board of Parole

The party asserting that a matter has become moot bears the burden of demonstrating that a court’s decision no longer has the required practical effect. State v. K.J.B., 362 Or. 777, 786 (2018). This includes establishing that any collateral effects that have been identified either do not exist or are legally insufficient. State v. K.J.B., 362 Or. 777, 786 (2018).

Area(s) of Law:
  • Civil Procedure

Rohrer v. Oswego Cove, LLC

Under ORS 659.199, a plaintiff may bring a claim if they “reported evidence of unlawful activity and were terminated.” Hall v. State of Oregon, 274 Or App 445, 451, 366 P3d 345 (2015). A common law wrongful termination claim may be brought if ORS 659A.199 does not apply or provide an appropriate remedy.

Area(s) of Law:
  • Employment Law

State v. Arivett

“[T]he smell of marijuana generally no longer has the significance it once had as a basis for reasonable suspicion, in light of decriminalization. A strong odor can signal the presence of marijuana, but not necessarily the presence in a quantity that is illegal for persons 21 and older to lawfully possess.” State v. T.T., 308 Or. App. 408, 437 (2021).

Area(s) of Law:
  • Criminal Procedure

State v. Deshaw

Evidence of uncharged acts can be admitted to establish a timeline of events in appropriate circumstances. State v. Grubb, 279 Or App 458, 460, 468, 379 P3d 715, rev den, 360 Or 423 (2016). Admittance of “highly inflammatory” uncharged-misconduct evidence is not harmless if it affected the verdict. State v. Wright, 283 Or App 160, 178, 387 P3d 405 (2015).

Area(s) of Law:
  • Evidence

State v. K. R. B.

“One circumstance in which we will not and cannot exercise our discretion to correct a plain error is when that error is harmless.” State v. Kerne, 289 Or App 345, 349-50, 410 P3d 369 (2017), rev den, 363 Or 119 (2018).

Area(s) of Law:
  • Criminal Procedure

State v. Morgan

“Although the state necessarily must prove that the person charged with committing a crime is, in fact, the person who committed the crime, that does not mean that the state is required to prove that a particular person sitting at counsel table with defense counsel is the person who is charged with a crime.” See ORS 132.540.

Area(s) of Law:
  • Criminal Law

State v. R.L.M.

Under ORS 426.005(1)(f)(B) and for the purposes of a basic-needs civil commitment, the evidence must establish not only that a person’s inability to attend to a basic need risks the person suffering an adverse medical consequence, but also how soon that adverse consequence is likely to occur.

Area(s) of Law:
  • Evidence

State v. Russell

A trial court must evaluate "the nature of a defendant’s offenses * * * as well as the defendant’s willingness to commit more than a single offense" to decide whether it should impose consecutive sentences under subsection (5)(a). State v. Martinez, 270 Or. App. 423, 429 (2015).

Area(s) of Law:
  • Sentencing

State v. Shelnutt

“‘The restriction on the possession of firearms by a felon has a well-established, historical, and obvious relationship to public safety. Even under intermediate scrutiny, ORS 166.270 is substantially related to an important governmental objective.’” State v. Beeman, 290 Or App 429, 417 P3d 541, rev den, 363 Or 119 (2018).

Area(s) of Law:
  • Constitutional Law

State v. Shields

"Under OAR 213-004-0011(1), prior out-of-state convictions are to be included in a defendant’s criminal history only 'if the elements of the offense would have constituted a felony or Class A misdemeanor under Oregon law.'"

Area(s) of Law:
  • Criminal Law

State v. Zimmerman

The aid-and-abet statute, ORS 161.155, “applies only to conduct prior to or during the commission of a crime”; aid-and-abet theories of criminal liability do not apply after a crime has been committed. State v. Barboe, 253 Or App 367, 375, 290 P3d 833 (2012), rev den, 353 Or 714 (2013). Under ORS 164.015, the theft-by-taking theory requires a defendant to exercise dominion or control and physically move the property of another. State v. Spears, 223 Or App 675, 699, 196 P3d 1037 (2008).

Area(s) of Law:
  • Criminal Law

Hisey v. Patrick

"The presumption of adversity applies where 'the person claiming the easement by prescription is a stranger to the landowner.'" Wels v. Hippe, 360 Or at 579.

Area(s) of Law:
  • Property Law

Johnson and Johnson

The standard for a change of circumstances for the purposes of custody modification is: (1) “the custodial parent is no longer competent to care for the child” or (2) the custodial parent’s continued care and custody is “inimical to the child’s welfare.” Merges v. Merges, 94 Or 246, 254, 186 P 36 (1919). The “primary purpose” of this requirement is “to avoid repeated litigation over custody and to provide a stable environment for children.” Ortiz and Ortiz, 310 Or 644, 649, 801 P2d 767 (1990).

Area(s) of Law:
  • Family Law

State v. Bradley

In State v. Herfurth, 307 Or App 534, 478 P3d 601 (2020), the court allowed the defendant to raise new arguments in his third appeal on the basis of a nonunimaous verdict because the legal landscape in Oregon had changed significantly changed and the defendant raised other claims that were not frivolous in each appeal.

Area(s) of Law:
  • Criminal Procedure

State v. Burris

"Where the trial court fails to elaborate on the meaning of an element of the charged crime, we have held the arguments of the state at trial combined with the instructions as a whole, can operate together to permit the jury to reach a legally erroneous conclusion." State v. Bistrika, 261 Or. App. 710, 729-30 (2014).

Area(s) of Law:
  • Criminal Procedure

State v. Goldberg

“One indication of whether a government action intrudes on a person’s privacy right is whether a private individual would offend social and legal norms of behavior by engaging in the same kind of intrusion.” State v. Portrey, 134 Or App 460, 464, 896 P2d 7 (1995).

Area(s) of Law:
  • Criminal Procedure

State v. Love-Faust

Compelling circumstances are such that viewed as a whole, a reasonable person in defendant’s shoes would feel compelled to reply to an officer’s questions. State v. Dunlap, 215 Or App 46, 57, 168 P3d 295 (2007). The court must ask whether the questioning took place in a “police dominated atmosphere.” State v. Roble-Baker, 340 Or 631, 641, 136 P3d 22 (2006).

Area(s) of Law:
  • Criminal Procedure

State v. Newton

"[A]s to unanimous verdicts, a trial court’s nonunanimous jury instruction [does] not amount to structural error and [is] harmless beyond a reasonable doubt." State v. Flores Ramos, 367 Or. 292, 319, 334, 478 P.3d 515 (2020).

Area(s) of Law:
  • Criminal Procedure

State v. Scott

"[With]... the burden on the beneficiary of the error... before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24 (1967).

Area(s) of Law:
  • Criminal Procedure

Thompson v. Marshall

Under ORS 19.415(2), “the erroneous grant of a directed verdict on a claim does not categorically require reversal; if the verdict on the claims that were submitted to the jury demonstrates that the jury necessarily would have rejected one or more elements of the claim…. then [the court] will not deem the…directed verdict to have substantially affected the plaintiff’s rights.” Yoshida’s Inc. v. Dunn Carney Allen Higgens & Tongue, 272 Or App 436, 458, 356 P3d 121 (2015), rev den, 358 Or 794 (2016).

Area(s) of Law:
  • Property Law

A. K. F. v. Burdette

A person is substantially limited regarding a major life activity if the impairment is restrictive “as compared to most people in the general population.” ORS 659A.104(3).

Area(s) of Law:
  • Elder Law

Sova v. Vital Auto Brokers, LLC

Certification of title to an automobile is prima facie evidence of rightful ownership. ORS 802.240. If title is established, the burden is on the proponent of title to rebut the prima facie evidence. Brunk v. Horton, 280 Or 239, 242, 570 P2d 382 (1977).

Area(s) of Law:
  • Contract Law

State v. Chitwood

“[T]he ease with which any error could have been avoided or corrected should be a significant factor in an appellate court’s decision whether to exercise its discretion to correct a plain, but unpreserved, error.” State v. Inman, 275 Or App 920, 935, 366 P3d 721 (2015).

Area(s) of Law:
  • Criminal Procedure

State v. Gassner

There may be no structural error when a trial court fails to instruct a jury that a nonunanimous verdict is allowable when such error was harmless beyond a reasonable doubt. State v. Flores Ramos, 367 Or 292, 334, 478 P3d 515 (2020).

Area(s) of Law:
  • Civil Procedure

State v. Heaton

For a choice-of-evils instruction to be presented to the jury, a defendant must show: “(1) his conduct was necessary to avoid a threatened injury; (2) the threatened injury was imminent; and (3) it was reasonable for him to believe that the need to avoid that injury was greater than the need to avoid the injury that the statute that he was found to have violated seeks to prevent.” State v. Boldt, 116 Or App 480, 483, 841 P2d 1196 (1992). Under ORS 161.200(1)(a), "necessary" may be established where there is no reasonable alternative but for a defendant to commit the crime. State v. Paul, 289 Or App 408, 409, 410 P3d 378 (2017).

Area(s) of Law:
  • Criminal Law

State v. Heine

When the State elects to provide a defendant with a jury trial, then the jury trial must comport with the Due Process Clause. Evitts v. Lucey, 469 US 387, 105 S Ct 830, 83 L Ed 2d 821 1985).

Area(s) of Law:
  • Criminal Procedure

State v. Lara-Vasquez

A court has no discretion regarding a Measure 11 sentence other than the consideration that a sentence must not be cruel and unusual and must be proportioned to the offense. State v. Rodriguez/Buck, 347 Or 46, 52-57, 217 P3d 659 (2009). A sentence may be cruel and unusual if it “shock[s] the moral sense” of a reasonable person. Id. at 57-58.

Area(s) of Law:
  • Criminal Procedure

State v. Mead

Sexual contact as required for a conviction under ORS 163.427(1)(a)(A) means “any touching of the sexual or other intimate parts of a person or causing such person to touch the sexual or other intimate parts of the actor for the purpose of arousing or gratifying the sexual desire of either party.” ORS 163.305(6).

Area(s) of Law:
  • Criminal Law

State v. Ramirez

The harmless error analysis focuses on “the possible influence of the error on the verdict rendered, not whether this court, sitting as a fact-finder, would regard the evidence of guilt as substantial and compelling.” State v. Davis, 336 Or 19, 32, 32 P3d 1111 (2003).

Area(s) of Law:
  • Evidence

State v. Rashad

An evidentiary error is harmless where the trial court’s verdict clearly establishes unaffected credibility determinations. State v. Reed, 299 Or App 675, 694, 452 P3d 995 (2019), rev den, 366 or 382 (2020).

Area(s) of Law:
  • Evidence

State v. Tennant

“[A]cquiescence occurs when an individual is not given a reasonable opportunity to choose to consent.” State v. Berg, 223 Or App 387, 392, 196 P3d 547 (2008), adh’d to as modified on recons, 28 Or App 754, 208 P3d 1006, rev den, 346 Or 361 (2009). Additionally, acquiescence may be clear when “a search will occur regardless or whether consent is given.” Id.

Area(s) of Law:
  • Constitutional Law

T. W. v. C. L. K.

To “avoid affecting the substantial rights of a parent, a juvenile court cannot base its jurisdictional decision on facts that depart from the petition or jurisdictional judgment when neither the petition nor the jurisdictional judgment would put a reasonable parent on notice of what the parent must do to prevent the state from asserting or continuing jurisdiction over the child.” Dept of Human Services v. J.R.L., 256 Or App 437, 448 (2013).

Area(s) of Law:
  • Juvenile Law

Laux v. Akebono Brake Corp.

"Evidence must be present that asbestos is contained in the defendant’s product, not just the industry as a whole." See, e.g., Austin, v. A.J. Zinda Co., 196 Or App 262, 269-270, 101 P3d 918 (2004), rev den, 338 Or 374 (2005).

Area(s) of Law:
  • Civil Procedure

State v. Cano

OEC 609, which allows the impeachment of a witness by certain criminal convictions, prohibits balancing under OEC 403. See, e.g., State v. Venegas, 124 Or App 253, 256; State v. King, 307 Or 332, 337 (2021); State v. Dick, 91 Or App 294, 298-99 (1988).

Area(s) of Law:
  • Evidence

Dunn v. Board of Parole

"Collateral consequences may prevent a dispute from becoming moot in certain instances." Barnes v. Thompson, 159 Or App 383, 386, 977 P2d 431, rev den, 329 Or 447 (1999).

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

Lobo v. Cain

A post-conviction court must assess whether, the failure to include within the amended petition, petitioner’s additional claims, “counsel has failed to exercise reasonable professional skill and judgment.” Bogle v. State of Oregon, 363 Or 455, 473, 423 P3d 715 (2018).

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

Samson v. Brown

ORS 137.635(1) provides, “The person shall not be eligible for any reduction in sentence pursuant to ORS 421.120 or for any reduction in the term of incarceration pursuant to ORS 421.121.”

Area(s) of Law:
  • Habeas Corpus

State v. Hernandez-Sanchez

A “true Brady violation” occurs when undisclosed evidence is “favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 US 263, 281-82, 119 S Ct 1936, 144 L Ed 2d 286 (1999).

Area(s) of Law:
  • Evidence

State v. Parkerson

“[I]f there is sufficient evidence to charge a witness of the crime with which a defendant is charged, then the trial court ‘may determine, as a matter of law, that the witness is an accomplice.” State v. Torres, 207 Or App 335, 359-60, 142 P3d 99 (2006) (quoting Oatney, 335 Or at 284)).

Area(s) of Law:
  • Evidence

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July 2 summaries

Carrillo v. SAIF

A combined condition involves the combination of two separate conditions. Brown v. SAIF, 361 Or 241, 255-56, 391 P3d 773 (2017); Multifoods Specialty Distribution v. McAtee, 333 Or 629, 634, 43 P3d 1101 (2002).

Area(s) of Law:
  • Workers Compensation

Sky Lakes Medical Center v. Dept. of Human Services

A court must defer to an agency’s interpretation of its own administrative rule if the interpretation is “plausible” and not “inconsistent with the wording of the rule itself, or with the rule’s context, or with any other source of law.” Don’t Waste Oregon Com. v. Energy Facility Siting, 320 Or 132, 142, 881 P2d 119 (1994).

Area(s) of Law:
  • Administrative Law

August 0 summaries


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