Oregon Court of Appeals

Opinions Filed in August 2015

Bandon Pacific v. Environmental Quality Commission

A department must consider all reasonably available information when reaching a conclusion as to the magnitude classification of violations.

Area(s) of Law:
  • Environmental Law

Borum v. Employment Dept.

For the purposes of overpayment of unemployment compensation, a claimant may be considered “at fault” in bringing about the overpayment, and its repayment cannot be waive if the claimant mistakenly provided inaccurate information on a benefits application. Affirmed.

Area(s) of Law:
  • Employment Law

Conicienne v. Asante

An amended complaint that relates back to the original complaint in that it “arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading” is not barred by the statute of limitations according to ORCP 23 C.

Area(s) of Law:
  • Civil Procedure

Dept. of Human Services v. T.M.S.

In juvenile dependency cases, it is not sufficient for a parent seeking reunification to use cooperation with provided services as basis for reversal of a court's decision to change a permanency plan from reunification to adoption.

Area(s) of Law:
  • Family Law

SAIF v. Traner

Under ORS 656.262(11), if an insurer or self-insured employer unreasonably denies a workers’ compensation claim, and the denial is overturned, then the insurer or self-insured employer is obligated to pay the claimant’s attorney fee, even if no compensation is awarded.

Area(s) of Law:
  • Workers Compensation

State v. Althof

Under OEC 702, a detective will qualify as an expert to give testimony at trial where the detective has extensive background, knowledge and experience in the area of delayed reporting of sexual abuse even though he holds no advanced degree in that area.

Area(s) of Law:
  • Evidence

State v. Brown

Under Article I, section 9, of the Oregon Constitution and the Fourth Amendment, just because a defendant temporarily sets down a piece of property does not mean it is abandoned for purposes of conducting a warrantless search of that property.

Area(s) of Law:
  • Constitutional Law

State v. Hawkins

Under ORS 151.505(3) and ORS 161.665(4), a trial court commits plain error by requiring a criminal defendant to pay court-appointed attorney fees unless the court finds the defendant can or will be able to pay them.

Area(s) of Law:
  • Attorney Fees

State v. Jay

A prosecutor's mention of questions that an arresting officer asked Defendant during the arrest are considered sufficiently incidental to statements made by Defendant. Accordingly, they are properly excluded from evidence.

Area(s) of Law:
  • Evidence

State v. Logan

When objecting to character evidence, an objection must also be made regarding the limiting instruction in order to argue that issue on appeal.

Area(s) of Law:
  • Appellate Procedure

State v. Maciel-Figueroa

An informant’s assertion that a defendant threatened to break the property of another was not enough to establish reasonable suspicion of assault or criminal mischief, and evidence gained pursuant to this information is therefore inadmissible.

Area(s) of Law:
  • Criminal Law

State v. Miles

To satisfy the subjective belief element of first-degree sexual abuse (ORS 164.245) the victim need only consider the area of their body that was touched to be one that is ordinarily to be touched by people who are intimately close to them. For a three year old, this included body parts where her parents would touch her such as her hips and legs.

Area(s) of Law:
  • Criminal Law

State v. Strye

A defendant does not need to admit to harmful acts in order for a jury to consider whether, if the defendant committed the alleged acts, that the defendant did so in self-defense.

Area(s) of Law:
  • Criminal Law

State v. Vanorum

A trial court plainly errs by using ambiguous jury instructions in a criminal trial, particularly where the Oregon Supreme Court has previously ruled that the jury instruction is an improper statement of law. Such an error is sufficiently plain and harmful that the Court of Appeals can exercise its discretion to reverse the conviction and remand for a new trial.

Area(s) of Law:
  • Criminal Procedure

Berg v. Nooth

A prosecutor’s “extrinsic” promises not to prosecute third parties in order to induce a guilty plea was not unconstitutional as a matter of law.

Area(s) of Law:
  • Criminal Law

DeAngeles and DeAngeles

When considering a spousal award for maintenance support, it is "improper to award support for a period of time that is defined by a contingency the occurrence of which is a matter of mere speculation."

Area(s) of Law:
  • Family Law

Dept. of Human Services v. E.N.

Parental rights may be terminated if a parent is determined to be unfit as a parent, if integration of the child into the parent's care is improbable due to conduct or conditions not likely to change, and if termination is in the best interests of the child.

Area(s) of Law:
  • Family Law

Eastern Oregon Mining Association v. DEQ

Under ORS 14.175, when a permit issued by an Oregon agency expires, and a new permit is issued that is the same as the expired permit, a challenge to the expired permit may be dismissed as moot, where the issues are not likely to evade judicial review in a future challenge to the new permit.

Area(s) of Law:
  • Administrative Law

Gattucio v. Averill

For the purpose of determining liability under ORS 124.115, a "person" refers to the defendant entity itself, not to natural persons acting on behalf of the entity.

Area(s) of Law:
  • Tort Law

Hoogendam and Hoogendam

A Stipulated General Judgment of Dissolution of Marriage entered by the trial court is only binding when it (1) accurately reflects the agreed-upon terms of the parties; (2) is signed by both parties; and (3) incorporates documents and terms that are agreed upon by the parties on the record.

Area(s) of Law:
  • Family Law

Hooper v. Division of Medical Assistance Programs

Under ORS 14.175, a case that might otherwise be ruled as moot can still be heard if it meets the three requirements laid out in the statute.

Area(s) of Law:
  • Civil Procedure

Moorehead v. TriMet

In a slip and fall negligence case, absent proof of an owner’s knowledge of a foreign substance on a floor, a plaintiff invitee’s action will fail. Without such proof, whether or not the foreign substance created an unreasonable risk of harm is not relevant.

Area(s) of Law:
  • Tort Law

Ornduff v. Hobbs

An attorney fee statement described in ORCP 68 qualifies as a “motion” or “pleading” under ORCP 15 D, and a court may grant a party permission to file the fee statement after the expiration of the ORCP 68 C(4)(a) filing period.

Area(s) of Law:
  • Civil Procedure

State v, Rabanales-Ramos

A police officer does not have probable cause to perform a traffic stop under ORS 811.507 when that officer has only observed a driver looking at a lighted device intermittently over a period of ten seconds, and the officer does not observe the driver to be pushing buttons, talking, or holding the phone to the ear.

Area(s) of Law:
  • Criminal Procedure

State v. Benning

A violation of a defendant’s rights under Article I, section 9, of the Oregon Constitution requires an analysis using the Unger factors including temporal proximity; mitigating circumstances; intervening circumstances (without using the Dempster/Snyder rule, which is no longer good law); purpose and flagrancy of the unlawful police conduct; and the nature, extent, and severity of the constitutional violation.

Area(s) of Law:
  • Evidence

State v. Fowler

Arguments made on appeal that were not made before the trial court cannot be the basis for the Court’s opinion unless the Court finds that the record would have developed materially the same under the new argument as under the actual argument made to the trial court.

Area(s) of Law:
  • Appellate Procedure

State v. Hendricks

Under ORS 163.160, “physical injury” can be satisfied by impairment of a physical condition depending on three factors: (1) the nature of the affected bodily function or organ; (2) the degree of effect and; (3) its duration.

Area(s) of Law:
  • Criminal Law

State v. Hess

When expert testimony that is proffered has no bearing on the capability of a criminal Defendant to perform a certain act, when that performance is the sole matter in question, it is irrelevant and should be excluded.

Area(s) of Law:
  • Criminal Law

State v. Kawamoto

Under ORS 163.225, a defendant may be found guilty of kidnapping by way of "secret confinement" of a victim in a place where the victim is "unlikely to be found" by individuals who would reasonably be expected to assist the victim, even when the victim's location is known by the defendant's accomplices. Under ORS 163.411, unlawful sexual penetration by way of forcible compulsion is reasonably found when an extended episode of violence, or threats of future violence, precedes the penetration.

Area(s) of Law:
  • Criminal Procedure

State v. Lang

Marijuana smoke smell coming from a defendant’s residence is not enough to establish probable cause of criminal mischief for a search warrant.

Area(s) of Law:
  • Criminal Law

State v. McPhail

The defenses of self-defense and choice of evils require an imminence element to be satisfied. Imminence will be found when the proponent of the defense is faced with a direct threat of immediate injury at the time. Preemptively arming oneself to prevent violence at an unknown point in the future does not satisfy the imminence element.

Area(s) of Law:
  • Criminal Law

State v. Mitchell

Under the Fourth Amendment, whether the causal connection between unlawful seizure of a defendant and the subsequent discovery of evidence is sufficiently attenuated by the intervening discovery of an outstanding warrant so as to purge the taint of the illegality depends on the temporal proximity between the unlawful police conduct and the discovery of the evidence, the presence of intervening circumstances, and the purpose and flagrancy of the unlawful police conduct.

Area(s) of Law:
  • Evidence

State v. Reeves

The law of “case doctrine” states that when a ruling has been made in a particular case by an appellate court, while it may be overruled in other cases, it is binding upon both the inferior court in any further proceedings in the same litigation and upon the appellate court itself in any subsequent appeal.

Area(s) of Law:
  • Appellate Procedure

State v. Thunderbird

A convicted defendant seeking DNA testing pursuant to ORS 138.690 to 138.698 must identify specific evidence to be tested that was gathered during the prosecution process.

Area(s) of Law:
  • Criminal Law

West Hills Development Co. v. Chartic Claims

If an injured claimant can recover under the allegations made in the complaint upon any basis for which the insurer affords coverage, that insurer is obligated to defend the insured. Additionally, even if not specifically alleged, extrinsic evidence proving the insured-insurer relationship existed, can be used.

Area(s) of Law:
  • Insurance Law

Johnson v. State Board of Higher Education

Under the Oregon Tort Claims Act (OTCA), the state is not obligated to defend a public employee against tort claims if, after investigation, the state determines that alleged tort arises from an incident outside of the course and scope of employment and the employee does not raise a question of fact challenging the state's determination.

Area(s) of Law:
  • Tort Law

State v. Blan

Under ORS 163.165, direct physical contact with the dangerous weapon is not required to satisfy the “by means of” prong of third-degree assault.

Area(s) of Law:
  • Criminal Law

State v. Davenport

The officer-safety exception to the warrant requirement of search and seizure does not apply to situations in which a suspect is cooperative and does not cause the officer to reasonably suspect that the suspect poses a serious risk or harm.

Area(s) of Law:
  • Evidence

State v. G.R.M.

Evidence that a complaining witness instigated physical altercations with a criminal defendant is sufficient for a jury to potentially find that witness biased and may be used as evidence for the purpose of impeachment.

Area(s) of Law:
  • Evidence

State v. Harris

Under ORS 138.697(1), a circuit court order granting DNA testing is not “limited” by a condition that a defendant may not collaterally attack his or her convictions if no exculpatory evidence is found.

Area(s) of Law:
  • Evidence

State v. Leahey

Under the Article I, Section 9 of the Oregon Constitution, a passenger of a vehicle is not subject to an unlawful stop when officers request that the defendant wait outside the car during a search. Further, under the same section, a passenger who consents to a patdown search and a search of a duffel bag is not subject to an unlawful search.

Area(s) of Law:
  • Criminal Procedure

State v. Lindemann

Under ORS 153.633(1), a trial court may not impose additional $60 fees upon a defendant if that court has already imposed penalty fees related to the convictions.

Area(s) of Law:
  • Criminal Law

State v. Pierce

When a trial court announces a defendant's sentence on the record and decides what programs they are eligible for under ORS 137.750, the defendant must voice an objection at that point in order to preserve a claim of error that the defendant is eligible for more programs.

Area(s) of Law:
  • Sentencing

State v. Radtke

Under Article I, section 9 of the Oregon Constitution, whether a person has been seized depends on whether a reasonable person would believe an officer intentionally and significantly restricted, interfered with, or otherwise deprived the person of his or her liberty or freedom of movement, which is a fact-specific inquiry dependent on examination of the totality of the circumstances.

Area(s) of Law:
  • Evidence

State v. Tiscornia

A trial court commits plain error by imposing attorney fees on defendant when the court used only work history and no other information regarding whether the defendant “is or may be able” to pay attorney fees.

Area(s) of Law:
  • Criminal Law

State v. Wiggins

A trial court errs by instructing the jury on first-degree criminal mischief when the dollar amount of damaged property does not rise to the necessary level.

Area(s) of Law:
  • Criminal Law

State v. Williams

A motion to sever will only be granted under ORS 132.560(3) if the "defendant is substantially prejudiced by a joinder of offenses."

Area(s) of Law:
  • Criminal Procedure

Weems v. Winn

A trial court must follow the statutory methodology in ORS 107.137 in determining child custody.

Area(s) of Law:
  • Family Law

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