State v. Tardie

Search warrant expiration applies to execution, not search completion, and an Officer’s training linked to case facts establishes probable cause for a search warrant. See State v. Monger, 306 Or App 50, 472 P3d 270, rev den, 367 Or 291 (2020); see also State v. Cazee, 308 Or App 748, 482 P3d 140 (2021). Jury is improperly instructed when statutory definition of “knowingly” under ORS 161.085(1) is embellished.

Defendant appealed multiple convictions of fourth-degree assault, coercion, and strangulation committed against an intimate partner. The Court reviewed in detail the trial courts’ jury instruction on strangulation, nonunanimous jury instructions and verdicts, and denials of (2) motions to suppress evidence.The trial court allowed the State to object to Defendant’s jury instruction. Allowing the definition for strangulation to include, “could impede” to clarify that Defendant had “knowingly” impeded normal breathing of their partner. On appeal the Court found that the State’s instruction incorrectly applied ORS 161.085(8). This assignment of error was reversed and remanded.The State conceded Appellant’s nonunanimous jury instructions and verdicts to counts 5, 10, 11, and 14. Verdicts that were unanimous despite a nonunanimous instruction were harmless. The first disputed motion to suppress evidence was whether a search of Defendants hard drive, by an officer was proper if it was not completed within the statutory period. ORS 133.565(3) requires that a search warrant is executed within 5 days, not that it is completed. The second disputed motion to suppress evidence was also affirmed because probable cause existed, leading to the scope of discovery. Convictions on  Counts  5,  7,  10,  11,  12,  14,  and  15  reversed and remanded; remanded for resentencing; other-wise affirmed.