Oregon Court of Appeals

2016

January 28 summaries

DeLashmutt v. Parker Group Investments, LLC

If a term is stated explicitly in a contract, its definition is not in question. If a conflicting term is not stated explicitly in the contract, the explicit term governs.

Area(s) of Law:
  • Contract Law

Foust v. Nooth

In order to state a claim for habeas corpus relief, the petitioner must allege facts sufficient to demonstrate the two elements for habeas corpus and not just legal conclusions.

Area(s) of Law:
  • Habeas Corpus

Gozzi v. Western Culinary Institute, Ltd.

Under Rent-A-Center, West, Inc. v. Jackson, where a party does not challenge a delegation provision specifically, the challenge to the delegation provision must be determined by the arbitrator if the delegation provision requires it.

Area(s) of Law:
  • Arbitration

Harless and Harless

For a monthly spousal award where there has been a substantial change in circumstances, the trial court was required to modify or terminate the support award based on maintaining the relative positions of the parties.

Area(s) of Law:
  • Family Law

Magana-Marquez v. SAIF

Under ORS 656.214 and ORS 656.266, a claimant is entitled to an award of permanent disability benefits in connection with a compensable workplace injury only if the claimant shows that the claimant has a permanent impairment that is “due to” or “results from” the claimant’s compensable workplace injury. To make that showing, the claimant must, at a minimum, demonstrate a causal relationship between the compensable injury and the claimed impairment.

Area(s) of Law:
  • Workers Compensation

Pollard v. Persson

Under the Post-Conviction Hearing Act, relief is available for claims actually alleged in a petition or amended petition; claims not raised in the petition or amended petition are waived unless the petitioner establishes that the claims could not reasonably have been asserted at that time.

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

Robbins v. Dept. of Human Services

ORS 12.160(1), as amended by the 2015 legislature, applies to permit the statute of limitations to toll for a minor's claims under the Oregon Tort Claims Act.

Area(s) of Law:
  • Tort Law

State v. Bell

Under ORS 137.540(2), a trial court may impose special conditions of probation that are reasonably related to the crime of conviction, as long as those conditions are not more restrictive than necessary to achieve the goals of probation.

Area(s) of Law:
  • Sentencing

State v. Hurita

A condition of probation that is not reasonably related to the trial court's goal, which is otherwise achieved by another condition of probation, is unenforceable as overbroad.

Area(s) of Law:
  • Sentencing

AFSCME Council 75 v. City of Portland

If an unfair labor practice complaint is filed under ORS 243.672(1)(b) based on a charge that an employer has “changed the status quo” with regard to the processing of grievances, including the practice of document transmittal, then the Employment Relations Board must review whether the change is a per se mandatory subject of bargaining.

Area(s) of Law:
  • Labor Law

Currier v. Washman, LLC

Plaintiff bicyclist was an implied licensee on Defendant carwash owner’s property at the time of Plaintiff's injury. The jury properly considered evidence regarding circumstances and community norms in determining injured Plaintiff’s status, and the trial court properly denied Defendant’s motion for directed verdict. Affirmed.

Area(s) of Law:
  • Property Law

Dept. of Human Services v. A. A.

When changing a permanency plan for a child, a juvenile court may not take judicial notice of facts within reports prepared by DHS and the Court-Appointed Special Advocate while off the record without giving notice to the parent, along with an opportunity for the parent to respond to the judicially-noticed evidence.

Area(s) of Law:
  • Juvenile Law

Dillard v. Premo

Under ORS 138.525(3), a judgment dismissing a meritless petition is not appealable. A trial court must not expressly state that a petition is meritless; the dispositive issue whether, in fact, the trial court dismissed the petition on that ground.

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

La Manna v. City of Cornelius

A trial court errs in granting summary judgment to a party when another party has raised genuine issues of material fact regarding the claims in question.

Area(s) of Law:
  • Civil Procedure

Spearman v. Progressive Classic Ins. Co.

Under ORS 742.061(3), disputes over individual categories of damages or over some, but not all, alleged injuries are not precluded because these disputes fall under the issue of damages due to plaintiff.

Area(s) of Law:
  • Insurance Law

State v. Downing

Before questioning a suspect, police must give Miranda warnings if that person is in either “full custody or in circumstances that create a setting which judges would and officers should recognize to be compelling. A person has acted with extreme indifference to the value of human life when they act in “a state of mind where an individual cares little about the risk of death of a human being.” If a proper foundation is laid for it, the results of an evidence-gathering technique that is a part of the 12-step DRE protocol is independently admissible.

Area(s) of Law:
  • Criminal Procedure

State v. Guzman

Where a victim does not testify, evidence is sufficient to establish the victim suffered “substantial pain” required by ORS 163.160(1)(a) through inferences made from witness testimony, victim statements to a 9-1-1 dispatcher and photographs of the victim’s injuries.

Area(s) of Law:
  • Evidence

State v. McConnell

A trial court errs by denying a criminal defendant's requested special jury instruction when that instruction correctly states the law related to self-defense, and the criminal defendant had proceeded on a theory of self-defense.

Area(s) of Law:
  • Criminal Law

State v. Moreno

When appealing the denial of a motion for acquittal, a criminal defendant must prove that, based on the undisputed evidence at trial, no reasonable jury could have found, beyond a reasonable doubt, the essential elements of the charged offense.

Area(s) of Law:
  • Criminal Law

State v. Mullens

Under Article I, section 9 of the Oregon Constitution, a police officer may not exploit an otherwise lawful traffic stop in order to question a driver about drugs without reasonable suspicion to do so.

Area(s) of Law:
  • Criminal Law

State v. Pannell

The Court affirmed this case based solely on State v. Barnes, 329 Or 327, 986 P2d 1160 (1999).

Area(s) of Law:
  • Criminal Law

State v. Swan

A criminal defendant's consent to taking a breath test after the defendant's unequivocal invocation of the right to counsel does not violate Article I, section 12 of the Oregon Constitution, even where officers have previously violated the defendant's constitutional rights by asking questions after the defendant's unequivocal invocation. Consequently, the results of the consented-to breath test are not subject to the exclusionary rule.

Area(s) of Law:
  • Criminal Law

Johnson and Johnson

Trial court did not err in using discretion when awarding costs (ORCP 68 B) and deciding not to award an enhanced prevailing party fee (ORS 20.190) to Appellant who prevailed on contested property claim, as both provisions are discretionary. Affirmed.

Area(s) of Law:
  • Civil Procedure

Kinkel v. Persson

ORS 138.550 bars subsequent petitions for post-conviction relief if the grounds on which relief is requested could have been reasonably argued in a previous petition.

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

Sproule v. Coursey

A defendant failed to prove inadequate assistance of counsel after being restrained during trial because he did not prove that the restraint, not visible to the jury, affected the outcome of his trial.

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

State v. Jacobs

For purposes of charging a defendant with tampering with physical evidence under ORS 162.295, a defendant has knowledge that an official proceeding is about to be instituted against him at the time he is placed under arrest.

Area(s) of Law:
  • Evidence

State v. Radtke

The Oregon Court of Appeals may exercise its discretion under ORAP 5.45(1) to reverse a trial court's plain error that imposes court-appointed attorney fees against a convicted criminal defendant when there is no evidence on the record that the court assessed the defendant's ability to pay those fees.

Area(s) of Law:
  • Attorney Fees

State v. Unger

A Court may review an unpreserved error as a plain error if three requirements are satisfied: (1) the error is one “of law”; (2), the error is “apparent,” that is, “the legal point is obvious, not reasonably in dispute”; and (3) the error appears “on the face of the record.” Whether a trial court erred by failing to merge guilty verdicts is a question of law, which is reviewed for errors of law, and review is bound by the trial court’s record.

Area(s) of Law:
  • Criminal Procedure

February 38 summaries

Bank of America, NA v. Wilson

Under former ORS 86.755(6)(b), an interest “voluntarily created” includes any property interest that a grantor voluntarily creates after granting the deed of trust, including an ownership interest.

Area(s) of Law:
  • Landlord Tenant

Central Oregon Landwatch v. Deschutes County

Under ORS 215.283(2)(c), “private parks” means space for low-intensity outdoor recreation and not space intended exclusively for private events that are commercial activity.

Area(s) of Law:
  • Land Use

Dept. of Human Services v. A.W.

To support the court taking jurisdiction over a child, DHS must present evidence that the child’s condition or circumstances expose the child to a current threat of serious loss or injury that is likely to be realized.

Area(s) of Law:
  • Family Law

Hyinx Semiconductor Mfg. America v. EWEB

Under ORS 42.230, when interpreting the terms of a contract, the Oregon Court of Appeals looks to the explicit language of the contract terms, and construes them together as a whole as applied to the issue raised.

Area(s) of Law:
  • Contract Law

Salibello v. Board of Optometry

If the Oregon Administrative Procedure Act provides an adequate and exclusive remedy for an individual, then there is no remedy available in a trial court under the Uniform Declaratory Judgments Act.

Area(s) of Law:
  • Administrative Law

Stanley v. Myers

Hearsay evidence used by a county sheriff to form an opinion on a person's fitness to retain a concealed carry license is admissible to show the state of mind of the sheriff upon making that determination.

Area(s) of Law:
  • Evidence

State v. Barnes

The relevant analysis for alleged violations of the right to a speedy trial involves two steps: (1) determine the total period of delay and calculate the delay that is attributable to the state or the delay the defendant did not request or to which he did not consent; then (2) if the delay is longer than ordinarily would be expected, determine whether the delay is reasonable by examining all the attendant circumstances.

Area(s) of Law:
  • Criminal Procedure

State v. Brown

In a criminal investigation, when a suspect makes an "equivocal request for counsel," police act within the confines of the Fifth and Fourteenth Amendments of the United States Constitution when they continue interrogation without asking clarifying questions.

Area(s) of Law:
  • Criminal Procedure

State v. Dewhitt

Under ORS 132.560(1)(b)(C), charges may be joined for trial where they are connected together because the offenses occurred in the same time and space, the investigation renders evidence for multiple charges, and material witnesses substantially overlap.

Area(s) of Law:
  • Criminal Procedure

State v. Ferguson

A trial court may err if it fails to merge two counts of felon in possession of a firearm where the crimes involve the same statutory provision, a single victim, and are not separated by sufficient time to justify separate convictions.

Area(s) of Law:
  • Criminal Procedure

State v. Gonzalez-Cristin

Under ORS 151.505(3) and ORS 161.665(4), a trial court may not sentence a criminal defendant to pay attorney fees to the court-appointed attorney unless the court finds on the record that the defendant can or will be able to pay those fees.

Area(s) of Law:
  • Attorney Fees

State v. McAuliffe

A rational trier of fact could find that a defendant has the requisite intent under ORS 166.220 (intending to use a firearm as a threat) based on a defendant’s verbal statements.

Area(s) of Law:
  • Criminal Law

State v. Strouse

A trial court may properly join a defendant’s marijuana-related and firearm-related charges where the charges are "connected together or constitute parts of a common scheme or plan" as described in ORS 132.560(1)(b)(C).

Area(s) of Law:
  • Criminal Procedure

State v. Thomas

Under Art. I Section 9, subjective perceptions of "unusual" glances between defendants may not be sufficient to uphold a warrantless search under the "officer safety" exception to the bar on the admission of evidence procured during a warrantless search.

Area(s) of Law:
  • Criminal Procedure

State v. Weigel

Article I, section 9, of the Oregon Constitution does not forbid an officer to take reasonable steps to protect himself or others if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion, based on specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officers or others then present.

Area(s) of Law:
  • Criminal Procedure

Wong v. Gittings

Under ORS 105.137(7), in an FED action, an automatic default judgment of restitution does not result when a defendant files a late answer, where the answer is filed before the plaintiff requests a default or the court renders judgment in the case.

Area(s) of Law:
  • Landlord Tenant

Yes on 24-367 Committee v. Deaton

In the defamation context, a statement expresses an opinion if it cannot reasonably be interpreted as stating actual facts.

Area(s) of Law:
  • Civil Law

Dept. of Human Services v. Z. E. W.

The Court will not review as-of-yet unadjudicated petitions to the juvenile court to assert jurisdiction over minors.

Area(s) of Law:
  • Juvenile Law

J.D.K. v. W.T.F.

Under ORS 30.866, a petitioner for a civil stalking protective order must show that the petitioner has a reasonable fear for their safety as a result of at least two unwelcome contacts by the respondent.

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

Kelley v. State Farm Mutual Auto. Ins. Co.

Under ORS 742.061(1), insurance companies are required to to pay attorney fees to the insured unless the insurance companies actions fall within the attorney fee "safe harbor."

Area(s) of Law:
  • Attorney Fees

Lahn v. Vaisbort

Where a dispute over a transaction involves whether the transaction was a security or a commercial loan between private parties, the four-factor test outlined in Reves v. Ernst & Young, 494 US 56, 63-64 (1990), must weigh in favor of a security in order for the transaction to be governed by Oregon Securities Law under ORS chapter 59. The four-factor test involves analyzing: (1) the motivation for entering the transaction, (2) the plan of distribution, (3) the reasonable expectations of the investing public, and (4) whether there are any risk-reducing factors that would make application of the securities laws unnecessary.

Area(s) of Law:
  • Contract Law

Robertson v. Greater Albany Public School District No. 8J

Affirmed. Nacoste v. Halton Co., 275 Or App 600, ___ P3d ___ (2015).

Area(s) of Law:
  • Workers Compensation

State v. Housego

A trial court may not impose attorney fees when there is no evidence in the record of the imposed's ability to pay those fees.

Area(s) of Law:
  • Attorney Fees

State v. Kelly

Notice that the State planned to introduce hearsay evidence under OEC 803(18a)(b), given prior to first trial, was held to be sufficient, despite lack of renewed notice at retrial.

Area(s) of Law:
  • Criminal Procedure

State v. Pittman

If on reconsideration the court finds that a prior decision erroneously instructed a lower court to enter a judgment for a lesser-included offense, when the elements of that offense were not alleged in the pleadings, the court may reconsider the case and alter its instructions accordingly.

Area(s) of Law:
  • Sentencing

State v. Shupe

Evidence of a license to possess or dispense marijuana in another state may be excluded under OEC 401 and OEC 403 because the evidence is irrelevant and may be confusing to a determination of a defendant’s violation of Oregon laws regarding possession and distribution of marijuana.

Area(s) of Law:
  • Evidence

TriMet v. Amalgamated Transit Union Local

The Oregon Public Meetings Law applies to governing bodies that do not require a quorum to conduct business when that governing body “meets” to make decisions.

Area(s) of Law:
  • Civil Law

Windorf v. Malco

A statute of limitations defense must be raised in a responsive pleading or in a motion before filing the pleading or the defense is waived by the party attempting to assert it.

Area(s) of Law:
  • Civil Procedure

Wolf v. GMAC Mortgage, LLC

A trustee’s sale conducted pursuant to former ORS 86.770(1) (2011) is invalid where the trustee conducting the sale is not a validly appointed trustee as defined in former ORS 86.705(8) (2011). An invalid trustee’s sale due to lack of a validly appointed trustee cannot foreclose a person’s property interests even where the person received actual notice and did not attempt to delay or stop the sale.

Area(s) of Law:
  • Property Law

Renton v. Webber

In order for a court to reconsider a custody determination, a party must file a motion to modify the judgment in light of new information under ORS 107.135. That motion must show that (1) circumstances have changed substantially since the original judgment or last custody order; and (2) it is in the child's best interest to change custody from the legal custodian to the moving party.

Area(s) of Law:
  • Family Law

State v. B. B. S.

If a juvenile court asserts jurisdiction over a youth based on stipulated facts, those facts must be sufficient to prove that the youth would have been convicted of a crime if that youth had been an adult.

Area(s) of Law:
  • Juvenile Law

State v. B. O.

In a civil commitment case, a trial court commits plain, reversible error if it fails to permit the individual to subpoena witnesses pursuant to ORS 426.100(1).

Area(s) of Law:
  • Civil Commitment

State v. Broome

Under ORAP 5.45(1), the Court of Appeals may exercise its discretion to reverse a judgment ordering a defendant to pay attorney fees where the record is silent as to his ability to pay as plain error.

Area(s) of Law:
  • Appellate Procedure

State v. Brown

Though State v. Slatton allows for merger of multiple counts of crimes charged under alternative theories, ORS 161.067(2) should be taken into account to so that where multiple counts are listed, not only under alternative theory but also with different victims, those counts do not merge.

Area(s) of Law:
  • Criminal Procedure

State v. Rios

Under ORS 151.505(3) and ORS 161.665(4), the Court of Appeals may use its discretion to reverse a judgment ordering a defendant to pay court-appointed attorney fees where the trial court failed to determine the defendant’s ability to pay.

Area(s) of Law:
  • Criminal Procedure

State v. Sanderlin

Under Article I, section 16 of the Oregon Constitution, disproportionate sentences are determined by analyzing a variety of factors, including the defendant’s diminished capacity. Consideration of medical history suggesting diminished capacity is appropriate in sentencing decisions.

Area(s) of Law:
  • Sentencing

Twist Architecture & Design, Inc. v. Board of Architect Examiners

Oregon Board of Architect Examiners erred when it: categorized Twist’s preparation of feasibility studies as the “practice of architecture”, determined that Twist violated ORS 671.020 when it used its logos on its feasibility studies, and determined that Twist violated ORS 671.020 and OAR 806-010-0037(7) when it used the phrase “Licensed in the State of Oregon (Pending).” The Board did not err when it modified the ALJ’s findings of fact, or when it determined that Twist violated the statute by advertising Oregon architectural projects on its website. Reversed and Remanded.

Area(s) of Law:
  • Administrative Law

Weitman Excavation, LLC v. CPM Development Corp.

Under ORS 36.715, attorney fees may only be awarded when incurred in a judicial proceeding. Under ORS 20.190(3), in order to award an "enhanced prevailing party fee," the court must show that the opposing party acted in a manner that is not "in good faith" or "objectively reasonable."

Area(s) of Law:
  • Alternative Dispute Resolution

March 54 summaries

State v Osborn

Under ORS 151.505(3) and ORS 161.665(4), it is plain error to require a defendant to pay attorney fees absent any evidence he is able to do so. Under ORAP 5.45(1), a reviewing court may examine the gravity of the error, the prison term length, and the lack of financial resources of the defendant in choosing to exercise its discretion to correct the plain error of a trial court when a defendant did not adequately preserve his objection at trial.

Area(s) of Law:
  • Criminal Procedure

State v. Butcher

Under ORS 151.505(3) and ORS 161.665(4), it is plain error to require a defendant to pay attorney fees in absence of evidence that he is able to do so, and may be reversed if the amount was “substantial” in light of defendant’s circumstances.

Area(s) of Law:
  • Criminal Procedure

State v. Cline

Under ORS 151.505(3) and ORS 161.665(4), it is plain error to require a defendant to pay attorney fees in absence of evidence that he is able to do so.

Area(s) of Law:
  • Criminal Procedure

Bouris and Bouris

If a trial court erroneously imputes facts regarding a party's actual income when determining spousal support or child support, then the Court of Appeals will reverse and remand.

Area(s) of Law:
  • Family Law

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

The legislative intent behind ORS 419B.923(1) is determined to “encompass a parent’s reasonable, good faith mistake as to the time or place of a dependency proceeding” including those good faith mistakes that are careless; however, the party has the burden to establish that their non-appearance was a result of excusable neglect and the juvenile court retains discretion in whether they will allow the motion.

Area(s) of Law:
  • Family Law

DeRoest v. Keystone RV Co.

The Worker’s Compensation Board correctly denied employee’s aggravation claim, based on their interpretation of ORS 656.273, that an aggravation claim requires an “actual worsening” of a condition previously identified in a notice of acceptance.

Area(s) of Law:
  • Workers Compensation

Harvey v. Davis

When mailing notice of default under a land sale contract, notice via mail “shall conclusively be presumed to be correct, and the notice adequate,” unless the recipient of the notice notifies the sender by registered or certified mail that he has a claim to a longer period of time in which to cure the default, where a land sale contract contains a notice provision that provides notice of default by mail shall take effect three days after mailing.

Area(s) of Law:
  • Civil Procedure

Law v. Zemp

A trial court may make additional orders in aid of enforcement of a charging order under ORS 67.205 (involving limited partnerships), but may not make additional orders to enforce a charging order under ORS 70.295 (involving LLCs).

Area(s) of Law:
  • Remedies

State v. Austin

A trial court may not impose punitive sanctions in a remedial contempt proceeding.

Area(s) of Law:
  • Sentencing

State v. Batistia

Under State v. Bailey and State v. Benning, a trial court should analyze attenuation under the totality of the circumstances rather than using the now outdated Dempster rule.

Area(s) of Law:
  • Criminal Law

State v. Courville

Compelling circumstances exist when the circumstances are such that an objectively reasonable person would feel compelled to answer an officer’s questions.

Area(s) of Law:
  • Criminal Procedure

State v. M.A.

Civil commitments require a showing that a person is dangerous to himself or others.

Area(s) of Law:
  • Criminal Law

State v. Williams

During a criminal trial, an audiotape of a defendant’s interrogation that contains statements by an officer that he can “read body language” and he thinks the defendant is lying may not be improper vouching testimony, particularly where the judge instructs the jury to disregard the statements when assessing the defendant’s credibility.

Area(s) of Law:
  • Evidence

State v. Zavala

In sex abuse cases, propensity evidence under OEC 404(4) must be considered in light of prejudicial effect under OEC 403.

Area(s) of Law:
  • Evidence

Dept. of Human Services v. K. M. J.

A trial court may not terminate parental rights under ORS 419B.819(7) and ORS 419B.820 for a parent’s failure to appear at hearing, unless the court complies with the notice requirements of ORS 419B.820.

Area(s) of Law:
  • Juvenile Law

Dept. of Human Services v. K. V.

Jurisdiction was warranted where the father had a history of alcohol abuse and domestic violence in situations involving the child and refused to admit the threat that mother posed to the child.

Area(s) of Law:
  • Family Law

DeShaw and Nahar-DeShaw

In a child support modification proceeding, an accountant's testimony that tax returns may be credible and reliable evidence of income that can meet the "any evidence" standard needed to support a trial court finding.

Area(s) of Law:
  • Family Law

Gordon v. Rosenblum

A permanent injunction preventing the Department of Justice from taking action under the Unlawful Trade Practices Act after an investigation provides probable cause for such action is improper where the investigated party uses deceptive practices and incorrect information to collect from debtors.

Area(s) of Law:
  • Consumer Credit

Hancock v. Pioneer Asphalt, Inc.

Issue preclusion may not be applied to dismiss a claim where, in the prior action, the claim was dismissed without prejudice without being actually litigated and essential to a final decision on the merits.

Area(s) of Law:
  • Civil Procedure

Progressive Party of Oregon v. Atkins

Arguing the possibility of a hypothetical administrative rule that Defendant had no plans to adopt does not make a future dispute “likely” as is required to invoke the Tanner exception (ORS 14.175) to to the mootness doctrine.

Area(s) of Law:
  • Administrative Law

Royer v. Touch of Grey Ranch

A laborer who is injured while remodeling a building used for non-commercial activities not within the trade or business of the employer falls under the “householder” exception of ORS 656.027(2) and is a “non-subject” worker as defined under the Oregon Workers’ Compensation Act.

Area(s) of Law:
  • Workers Compensation

Smith v. Dept. of Corrections

Under ORS 179.360(1)(f), only the superintendent of the Department of Corrections may appoint a chief medical officer. OAR 291-124-0016(2) is invalid. An agency policy is a rule and not an internal management directive if it has a direct effect on people who are not agency employees.

Area(s) of Law:
  • Administrative Law

Springville Corp. v. Stoel Rives LLP

In a legal malpractice action, a plaintiff must establish causation, in that there must be evidence tending to prove that in the case-within-the-case, if the attorney or law firm had not been negligent, the outcome of the case would have been more favorable to the plaintiff; if no evidence of causation is shown, then summary judgment for the defendant(s) is proper.

Area(s) of Law:
  • Tort Law

State v. Baughman

Under OEC 404(4), a trial court may admit evidence of a criminal defendant’s other crimes, wrongs, or acts if “(1) it is relevant under OEC 401, and (2) as required by the Due Process Clause of the Fourteenth Amendment to the United States Constitution, ‘a trial court determines whether the risk of unfair prejudice posed by the evidence outweighs its probative value under OEC 403.’” Therefore, a court must undergo a four part balancing test as required by, State v. Mayfield, 302 OR 631 (1987), to determine if the evidence is to be excluded.

Area(s) of Law:
  • Evidence

State v. Brooke

Simply referencing an attorney does not necessarily constitute an unequivocal invocation of the right to counsel under Article I, section 12, of the Oregon Constitution, but a defendant’s expression of his clear desire to speak with an attorney is an unequivocal invocation of that right.

Area(s) of Law:
  • Constitutional Law

State v. Cavallaro

Under Article I, section 12 of the Oregon Constitution and the Fifth Amendment of the U.S. Constitution, a trial court must suppress incriminating statements made by a criminal defendant after that defendant unequivocally invokes the right to counsel, unless the defendant subsequently waives the right to counsel by evincing a “willingness and a desire for a generalized discussion about the investigation” that would lead a reasonable officer to believe that Defendant had waived his constitutional right to counsel.

Area(s) of Law:
  • Criminal Procedure

State v. Garcia

Under State v. Fair, 353 OR 588 (2013), “a temporary on-the-scene seizure of a likely material witness will be constitutional if: (1) the officer reasonably believes that an offense involving danger of forcible injury to a person recently has been committed nearby; (2) the officer reasonably believes that the person has knowledge that may aid the investigation of the suspected crime; and (3) the detention is reasonably necessary to obtain or verify the identity of the person, or to obtain an account of the crime.” Furthermore, even when temporary on-the-scene detention is legal, continued presence of officers within a home requires either a search warrant or justified exception. This seizure does not create an exception for officer presence within a home without a warrant or other exception.

Area(s) of Law:
  • Criminal Procedure

State v. Mazziotti

“Where a defendant requests that the trial court exclude other acts evidence under OEC 403 because the probative value of the evidence is outweighed by the danger of unfair prejudice, it is error for the court to admit the other acts evidence without first conducting OEC 403 balancing.”

Area(s) of Law:
  • Evidence

State v. Pilgrim

A passenger’s silence as to whether objects located within a vehicle belong to him does not indicate that that passenger has unequivocally manifested an intention in giving up his possessory and privacy interest in said objects.

Area(s) of Law:
  • Criminal Procedure

Dept. of Human Services v. B. P.

Judgment of juvenile court was reviewable by the Court of Appeals as it was a concluding decision on jurisdiction.

Area(s) of Law:
  • Family Law

Dept. of Human Services v. R. W.

While a parent’s failure or unwillingness to participate in reunification services and sign releases necessary for referrals to those services is taken into account by the courts, it does not preclude DHS from making reasonable efforts to engage the parent for reunification with their child.

Area(s) of Law:
  • Family Law

Himebaugh v. Taylor

Under ORS 138.640(1) and Datt v. Hill, a post-conviction judgment to deny relief must (1) identify the claims for relief the court considered and make separate rulings on each claim; (2) declare for each claim whether the denial is based on petitioner’s failure to utilize or follow available state procedures or a failure to establish the merits of the claim; and (3) make the legal bases for denial of relief apparent.

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

Johnson and Johnson

Under ORS 107.105(1)(d)(A) , transitional spousal support is typically awarded for education or training to prepare the supported spouse to enter the job market; because this type of support is awarded for a specific purpose, its duration must correspond to the timeframe of that specific purpose.

Area(s) of Law:
  • Family Law

Lagunas-Garcia v. Taylor

A post-conviction court's form judgment must comply with ORS 138.640.

Area(s) of Law:
  • Criminal Procedure

Rivas v. Board of Parole

Under Oregon’s Public Meetings Law, ORS 192.610-95, a “meeting” is a convening of a governing body for which a quorum is required to in order to make a decision on any matter, and a “convening” is a contemporaneous gathering.

Area(s) of Law:
  • Administrative Law

Robinson v. Tri-County Metropolitan Transportation District of Oregon

Under ORS 742.061(3), sending a "safe harbor" letter, even if it did not include the statutory language that "the only issues are the liability of the uninsured or underinsured and the damages due the insured," satisfies the exemption.

Area(s) of Law:
  • Attorney Fees

State v. B.P.C.

Under ORS 426.130(1)(a)(C), in certain circumstances if a court determines by clear and convincing evidence that a person has a mental illness and is in need of treatment, the court may order commitment of that person.

Area(s) of Law:
  • Civil Commitment

State v. Belen

Under ORS 163.405, to convict a defendant of first-degree sodomy a jury must find that the defendant had a culpable mental state when the defendant subjected the victim to forcible compulsion; failure to instruct the jury that it must find the defendant had a culpable mental state is plain error. However, when there is no evidentiary basis from which the jury could find that the defendant, in engaging in the charged conduct, subjected the victim to forcible compulsion but did not do so knowingly, the error is harmless.

Area(s) of Law:
  • Criminal Law

State v. Eskie

Under ORS 813.135 and 813.136, evidence of a criminal defendant's refusal to comply with a field sobriety test is inadmissible if the arresting officer fails to notify the defendant that evidence of this non-compliance is admissible in trial.

Area(s) of Law:
  • Evidence

State v. Reger

ORS 133.565(2)(c) requires that a search warrant, among other things, must state, or describe with particularity “[t]he things constituting the object of the search and authorized to be seized.”

Area(s) of Law:
  • Evidence

State v. R-Robinson

Under OAR 213-004-0011(1), an out-of-state adult conviction may only be used to classify an offender’s criminal history where the elements of the offense would have constituted a felony or Class A misdemeanor under Oregon law.

Area(s) of Law:
  • Sentencing

Dept. of Human Services v. M. M.

In order for a juvenile court to take jurisdiction over a child under ORS 419B.100(1)(c), the court must prove that a the child’s current conditions and circumstances are such as to endanger the welfare of the child.

Area(s) of Law:
  • Juvenile Law

State v. Richards

Under ORS 137.593(3), a trial court may not revoke a criminal defendant’s probation if the defendant has already completed a structured, intermediate probation sanction for the same conduct. However, if the defendant serves a structured, intermediate imposed for a violation of conditions of post-prison supervision, the court retains authority to revoke the defendant’s probation for that same conduct.

Area(s) of Law:
  • Criminal Law

State v. Richardson

State v. Cantwell concluded that under ORS 166.025(1)(a) (Disorderly conduct where conduct is fighting or violent, tumultuous, or threatening behavior”) the State needs to prove that the defendant “either used physical force or engaged in physical conduct that was immediately likely to produce the use of physical force.” Cantwell further provided that a conviction under that statute could not be based on the defendant’s speech but on the physical force aspect. Subsequent cases showed that incidental physical conduct, such as grabbing a shoulder, which is a “common method of gaining someone’s attention” does not fall under the physical force necessary for a conviction under this statute.

Area(s) of Law:
  • Criminal Law

Dept. of Human Services v. J. V.-G.

A judgment will be affirmed despite evidentiary error if there is little likelihood that the particular error affected the verdict. To determine if there is little likelihood that the error affects an outcome the court must determine whether the improperly admitted evidence could have affected the outcome of the case.

Area(s) of Law:
  • Evidence

Grant v. Coursey

For post-conviction relief based on inadequate assistance of counsel, a petitioner must demonstrate that (1) trial counsel failed to exercise reasonable professional skill and judgment, and (2) petitioner suffered prejudice as a result.

Area(s) of Law:
  • Criminal Procedure

Hughes v. Ephram

The legislature's use of the word "enjoin" in ORS 726.330 is broad enough to include a writ of garnishment.

Area(s) of Law:
  • Property Law

Johnson v. Premo

Under ORS 138.530(1)(a) and Article I, section 11, of the Oregon Constitution, to prevail on a claim of ineffective assistance of counsel, a petitioner in a post-conviction relief matter must prove by a preponderance of the evidence that his or her attorney failed to exercise reasonable professional skill and judgment, and consequently the petitioner suffered prejudice.

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

State v. Anderson-Brown

A Defendant bears the burden of framing the issues in a motion to suppress in a way that informs a trial court of what the defendant is asking the court to do, and that notifies the state of the contentions it must respond to. To sufficiently preserve error on appeal, a defendant must frame the issues in a way that makes the defendant’s contention sufficiently clear to the state and the trial court to give them the opportunity to understand the contention and fairly respond to it.

Area(s) of Law:
  • Evidence

State v. Berg

Under ORS 151.505(3), and 161.665(4), it is plain error for a trial court to require a defendant to pay attorney fees in the absence of evidence he is able to do so. Under plain error analysis, competing inferences must be “plausible,” not speculative.

Area(s) of Law:
  • Attorney Fees

State v. Dawson

Under ORS 809.235(1)(b), the Sixth Amendment to the United States Constitution does not bar the use of a prior uncounseled conviction to revoke a defendant’s driving privileges where the prior conviction is not used to support the defendant’s guilt or to enhance punishment.

Area(s) of Law:
  • Sentencing

State v. Kindler

Forcing defense counsel to go to conduct a spontaneous evidence suppression hearing and then to go to trial within a month unfairly prejudices the defendant.

Area(s) of Law:
  • Criminal Procedure

State v. Miller

Under Article I, section 9 of the Oregon Constitution, questioning an otherwise cooperative driver about weapons based solely on that driver’s license to carry a concealed firearm permit where there are no other circumstances indicating that the driver poses a threat to the officer, may constitute an unlawful extension of a traffic stop, and any statements obtained because of the officer’s questioning should be suppressed.

Area(s) of Law:
  • Criminal Procedure

State v. Poston

“ORS 132.560 requires that a charging instrument that charges multiple crimes to allege the basis for joinder or facts that would permit the court to determine the basis for joinder.” This means that, to withstand demurrer, a charging instrument on its face should allege that the acts which resulted in separate charges occurred by the same person, “are of the same or similar character, are based on the the same act or transaction, or that two or more acts or transactions connect together or constitute parts of a common scheme or plan.”

Area(s) of Law:
  • Civil Procedure

April 50 summaries

Dept. of Human Services v. F.B.

A case is moot when it involves a matter that no longer is a controversy between the parties.

Area(s) of Law:
  • Civil Procedure

Gozzi v. Western Culinary Institute

The Court allowed reconsideration to clarify language in their previous opinion about the assignments of error they rejected.

Area(s) of Law:
  • Civil Procedure

Guill v. M. Squared Transportation, Inc.

Under ORS 656.005(7), “truly unexplained” injuries are considered arising out of employment as a matter of law.

Area(s) of Law:
  • Workers Compensation

State v. Deslaurier

ORS 137.106 does not violate the Sixth Amendment of the U.S. Constitution because a restitution award is not a sentence beyond the statutory maximum and therefore a jury determination of the underlying facts is not necessary.

Area(s) of Law:
  • Sentencing

State v. Harryman

The questioning of a suspect by the police does not inherently create a compelling circumstance that requires Miranda warnings. The trial court is not required to allow modified jury instructions when the substance of the modified instruction is not necessary or the substance is covered fully by other instructions.

Area(s) of Law:
  • Criminal Law

State v. M.L.N.

Under ORS 426.130(1)(a), in order to civilly commit a person, the State must prove by clear and convincing evidence that the person is mentally ill.

Area(s) of Law:
  • Civil Commitment

State v. Martine

The State has not met its burden of showing legally sufficient proof that physical evidence was discarded if a jury has to use impermissible speculation to agree with the State.

Area(s) of Law:
  • Criminal Law

State v. Rosenstiel

ORS 161.067 requires merger of multiple guilty verdicts into a single conviction when the defendant violates "only one statutory provision" and when the conduct arises "from the same conduct or criminal episode."

Area(s) of Law:
  • Sentencing

State v. Smith

Under the officer safety exception to warranties searches of Article 1, section 9 of the Oregon Constitution, the state must show that the officer had an objectively reasonable concern for safety based on facts specific to the particular person searched.

Area(s) of Law:
  • Criminal Procedure

State v. T.W.

Failure to inform an allegedly mentally ill individual of the possible results of a hearing and of the individual’s right to subpoena witnesses is plain error.

Area(s) of Law:
  • Civil Commitment

Utility Reform Project v. Oregon Public Utility Commission

Under ORS 757.355, recovery of administrative costs for issuing a consumer refund is not considered obtaining profit.

Area(s) of Law:
  • Administrative Law

Walraven v. Premo

Under the standard announced in Wade v. Brockamp, trial counsel's failure to object to the "natural and probable consequences" jury instruction as to a defendant's aggravated murder charge equates to constitutionally inadequate counsel.

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

Elsea v. Liberty Mutual, Ins.

Under ORS 656.206, If a worker is so disabled that he or she cannot work, efforts to seek work would be futile. Even if efforts would be futile, to establish permanent total disability, the worker must prove that, but for the compensable injury, the worker is or would be willing to seek regular gainful employment.

Area(s) of Law:
  • Workers Compensation

Medi-Tech International Corp. v. Kwiecinski

Under ORS 656.126(1), workers injured out of state are covered “if Oregon is the place of their permanent employment and if their presence out of state is incidental to that employment.” Employees of Oregon employers who are injured while working permanently outside of Oregon are not covered.

Area(s) of Law:
  • Workers Compensation

Multnomah County Sheriff’s Office v. Edwards

Under ORS 408.230 (the veterans’ preference law), a public employer’s application process for hiring and promotion decisions must utilize a coherent, stable method for giving special consideration to disabled veterans.

Area(s) of Law:
  • Administrative Law

Padrick v. Lyons

Under the discovery rule for breaches of fiduciary duty, ORS 12.110(1), the statutory period begins to run from the earlier of (1) the date the plaintiff actually discovers the injury or (2) the date when the plaintiff, exercising reasonable care, should have discovered the injury, including learning facts that an inquiry would have disclosed. A plaintiff discovers an "injury" when he knew, or reasonably should have known, of the existence of three elements: (1) harm, (2) causation, and (3) tortious conduct.

Area(s) of Law:
  • Tort Law

State v. Couch

A defendant filing a motion seeking DNA testing and the appointment of counsel under ORS 138.690 (2011) and 138.694 (2011) must include an affidavit containing a statement that he is innocent, identifying the specific evidence to be tested, and identifying a theory of defense that DNA testing would support, and additionally make a prima facie showing the testing would establish actual innocence.

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

State v. E. G.

Under ORS 426.110, a trial court must appoint a qualified examiner to review the mental health report in order to conduct a proper civil commitment hearing. A qualified examiner must be certified by the Oregon Health Authority or the Psychiatric Security Review Board.

Area(s) of Law:
  • Civil Commitment

State v. Kaino-Smith

Statements made against a proprietary interest are not admissible over a hearsay objection if the interests the speaker would have been motivated to protect are "speculative and remote."

Area(s) of Law:
  • Criminal Procedure

State v. Kauppi

Under Article I, Section 9, of the Oregon Constitution and ORS 133.565, an otherwise adequately descriptive warrant is not rendered in violation of the particularity requirement because it contains a clerical error if: (1) the executing officer had personal knowledge of that error, and (2) made the "reasonable effort" of drawing upon that knowledge to, in effect, correct the clerical error.

Area(s) of Law:
  • Criminal Procedure

State v. Mickow

Under ORS 151.505 and ORS 161.665, a trial court may not require a defendant to pay court-appointed attorney fees unless the court makes factual findings about whether the defendant “is or may be able to pay” the fees.

Area(s) of Law:
  • Attorney Fees

State v. Montwheeler

Under the standard announced in Charles v. Palomo, an objection is made for preservation purposes whenever a party communicates to a trial court that he or she disagrees with the court’s actual or potential ruling. The words "I object" need not be specifically uttered, rather, the party objecting to a trial court's ruling must state its objection with enough specificity to allow the trial court to identify the alleged error for reconsideration, if warranted. Under OEC 402, it is clear error to exclude relevant evidence without a legal basis for exclusion.

Area(s) of Law:
  • Criminal Procedure

State v. Oller

If a traffic stop has ended, a police officer may only detain a suspect for further investigation if the detention is supported by reasonable suspicion.

Area(s) of Law:
  • Civil Procedure

State v. Summers

ORS 136.570 does not warrant the exclusion of witnesses from testifying as a remedy for its violation. ORS 135.865 allows the trial court to have "broad discretion in its choice of sanctions for failure to disclose names of witnesses in a criminal case."

Area(s) of Law:
  • Criminal Procedure

State v. Walker

Under the standard in State v. Holdorf, an officer has “reasonable suspicion” to initiate a stop if the officer can identify “specific and articulable facts” that a person has committed, or is about to commit a crime. The “reasonable suspicion” standard required in order to stop a citizen is less than the “probable cause” standard necessary to arrest.

Area(s) of Law:
  • Criminal Procedure

T.W.-S. and Sullivan

Under ORCP 68, a party can object to a statement seeking attorney fees and costs by a written objection to the statement; if no objection is filed, a court may award attorney fees.

Area(s) of Law:
  • Attorney Fees

TriMet v. Aizawa

Under ORCP 6, an award of reasonable value of legal services related to the prosecution or defense of an action, known as “fees on fees,” is permissible.

Area(s) of Law:
  • Attorney Fees

State v. Padilla

Under Article I, section 16 of the Oregon Constitution, a sentence is dissproportinate if it would shock a reasonable person's moral sense.

Area(s) of Law:
  • Sentencing

Casey v. City of Portland

If an employer expressly reserves an employee's right to maintain a second action or proceeding at the time of its first denial of a worker’s compensation claim, the initial denial has no preclusive effect on an employee’s subsequent claim.

Area(s) of Law:
  • Administrative Law

Deutsche Bank Trust Company Americas v. Walmsley

Under ORS 73.0301, a person is entitled to enforce a judicial foreclosure on a negotiable instrument by proving only that they possess the instrument.

Area(s) of Law:
  • Contract Law

Flight Shop, Inc. v. Leading Edge Aviation, Inc.

Under ORS 197.825, the Land Use Board of Appeals has exclusive jurisdiction over land use decisions despite the circuit court’s jurisdiction over enforcement actions.

Area(s) of Law:
  • Civil Procedure

Jewett v. Sterling Furniture Co.

Under ORS 20.075, an attorney's characterizations of the record are not evidence to be considered when determining the proper award of attorney’s fees.

Area(s) of Law:
  • Attorney Fees

Keystone RV Co.-Thor Industries, Inc. v. Erickson

The Workers’ Compensation Board’s evaluation of expert witness opinions and medical evidence is unreasonable when based on a misunderstanding.

Area(s) of Law:
  • Workers Compensation

McKenzie v. A. W. Chesterson Co.

Under ORS 30.920(1) a manufacturer sending products in asbestos-containing packaging has a duty to warn the buyer of the risks of asbestos, even if the manufacturer does not make the packaging.

Area(s) of Law:
  • Tort Law

N.M.G. v. McGinnis

To establish the basis for a stalking protective order, speech-based contacts must be threats that instill a fear of imminent and serious personal violence that is objectively likely to be followed by unlawful acts.

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

Richardson v. Belleque

Post-conviction relief is proper when defense counsel failed to exercise reasonable professional skill and judgment in failing to rebut expert testimony at a dangerous-offender sentencing hearing.

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

Rogue Advocates v. Board of Commissioners of Jackson County

A party may not ask a circuit court to disrupt the land use decisional process by asking the court to make a land use decision under the pretext of a circuit court enforcement proceeding.

Area(s) of Law:
  • Land Use

State v. Beltran-Solas

An accused criminal defendant, after being appointed legal counsel under Article 1, Section 11 of the Oregon Constitution, cannot be interrogated about the crime charged without the counsel’s representation.

Area(s) of Law:
  • Criminal Law

State v. Bronson

Under former ORS 135.747, a defendant must be brought to trial in a reasonable time, which is determined between the time the defendant is charged and when the trial begins, even if that trial ends in a mistrial.

Area(s) of Law:
  • Criminal Procedure

State v. Devall

I, the Court held that under ORS 166.025(1)(a) “violent, tumultuous or threatening behavior” cannot be shown by verbal threats alone.

Area(s) of Law:
  • Criminal Law

State v. Eastep

ORS 164.135, unauthorized use of a vehicle, does not require that the vehicle over which defendant exercised control was operable.

Area(s) of Law:
  • Criminal Law

State v. Hill

Consistent with the Ninth Circuit’s test, a defendant bears the burden of producing evidence concerning Indian status, and the State bears the burden of proof to show that a defendant is not Indian.

Area(s) of Law:
  • Indian Law

State v Smith

Elevating a public indecency misdemeanor to a felony and imposing a life sentence for two prior sexual attempt crimes is not an unconstitutional sentence.

Area(s) of Law:
  • Sentencing

VFS Financing, Inc. v. Shilo Management Corporation

An expert cannot constitute a genuine dispute of material fact where their testimony would be immaterial.

Area(s) of Law:
  • Civil Procedure

Bundy v. NuStar GP, LLC

Under the workers compensation act, the employer may be sued by an employee for injury that results from the employers deliberate intention to injure that employee.

Area(s) of Law:
  • Employment Law

Horton v. OHSU

Where a doctor is negligent during surgery on a child and the child needs an emergency organ transplant, a parent’s voluntary choice to donate an organ may be a reasonably foreseeable result and the parent may fall within the class of plaintiffs at risk because of the close bond between family members.

Area(s) of Law:
  • Tort Law

Larisa's Home Care, LLC v. Nichols-Shields

To determine if an injustice exists for purposes of an unjust enrichment claim, one of the following factors must be present: (1) the plaintiff had a reasonable expectation of payment; (2) the defendant should reasonably have expected to pay; or (3) society’s reasonable expectations of security of person and property would be defeated by non-payment.

Area(s) of Law:
  • Civil Procedure

Morrison v. Board of Parole

Under ORS 144.228(1)(b)(A) (2009), when a board is unable to make the predicate findings to set a release date, it is authorized to set the next parole consideration hearing “no less than two years, and no more than 10 years, from the date of the previous review.”

Area(s) of Law:
  • Sentencing

State v. Bernhardt

Under ORS 163.425(1)(a) for an adult to have deviate sexual intercourse with a minor who is legally incapable of giving consent, the State need not prove the adult exerted control over the minor victim or that the minor victim did not actually consent.

Area(s) of Law:
  • Criminal Law

State v. Guerrero

Waiver of the right to counsel in criminal proceedings may be implied by misconduct only if (1) the defendant receives warning that repeated misconduct will force him to appear pro se, and (2) the defendant is allowed an opportunity to explain the situation in court.

Area(s) of Law:
  • Criminal Procedure

May 49 summaries

Aska and Hasson

A stipulated marriage dissolution judgment can only be entered when both spouses agree to the agreement either in writing or on the record.

Area(s) of Law:
  • Family Law

Chevalier Advertising, Inc. v. Ballista Tactical Systems, Inc.

Summary judgment is only appropriate where no genuine issues of material fact exists; a material fact is one that might affect the outcome of a case.

Area(s) of Law:
  • Civil Procedure

Cunningham v. Premo

Under ORS 138.550(3), a subsequent petition for post-conviction relief may not contain successive claims which could reasonably have been made in the previous petition.

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

Jones v. Randle

Judicial estoppel precludes someone for asserting an ownership interest in property that was undisclosed during previous bankruptcy proceedings if that person derived a benefit from not disclosing their ownership interest before.

Area(s) of Law:
  • Civil Procedure

LaCasse v. Owen

When opposing a motion for summary judgment, an attorney may submit a declaration that an unidentified expert will testify to certain conclusions at a trial that raise a genuine issue of material fact.

Area(s) of Law:
  • Civil Procedure

Long v. SAIF Corporation

A Workers' Compensation Board's decision is supported by substantial evidence and reason when it is based on an expert's opinion that is supported by medical tests and opposing experts.

Area(s) of Law:
  • Workers Compensation

Rubi v. Nooth

Under Article 1, section 11 of the Oregon Constitution a petitioner is not prejudiced by inadequate counsel if the sentencing court would have sentenced a petitioner the same regardless of the inadequate counsel.

Area(s) of Law:
  • Sentencing

State v. Caro

A trial court may not impose a court fee that is not authorized under the law.

Area(s) of Law:
  • Criminal Procedure

State v. Easton

Under ORS 153.633(1), if a court imposes a fine in a criminal case, the first $60 (or the entire fine, if it is less than $60) is payable to the state, the statute does not authorize a court to impose an additional $60 "mandatory state amount" fine.

Area(s) of Law:
  • Sentencing

State v. Engle

A suggestive identification can be combated with cross-examination and a trial court is not required to exclude the identification.

Area(s) of Law:
  • Evidence

State v. Graves

Under Article I, section 9 of the Oregon constitution, when a police officer stops a car, the driver is automatically “seized” for the purposes of a search, but any passengers are not; some further showing of authority towards a passenger of the vehicle is required. Encounters that could be described as inquiries or conversations with passengers during a traffic stop are not searches.

Area(s) of Law:
  • Criminal Law

State v. King

Under ORS 167.057, "explicit verbal description" means "explicit identification of sexual conduct when identification is intended to bring a graphic sexual image to the mind of the recipient."

Area(s) of Law:
  • Criminal Law

State v. Machado

Under ORS 153.633(1), the first $60 of any fine imposed on a criminal defendant is to go to the state, the statute does not authorize a court to impose an additional $60 "mandatory state amount" fine.

Area(s) of Law:
  • Sentencing

State v. McClelland

Under ORS 137.106(1)(a) and 31.710(2)(a), in the criminal context, in order to seek restitution for economic damages, the state must prove that expenses incurred for healthcare services are reasonable. The submission of a hospital bill or doctor’s invoice, without more, is insufficient to establish “reasonableness”; some additional testimony or evidence is required.

Area(s) of Law:
  • Criminal Law

State v. Sexton

Under Article 1, section 9, of the Oregon Constitution a passenger is seized only if there is an imposition through physical force or some showing of authority that restrains the individual's liberty. The Fourth Amendment of the United States Constitution requires a stop to be based a minimal level of objective justification for making the stop.

Area(s) of Law:
  • Criminal Procedure

State v. Sierra

Under ORS 138.222, if a case involves multiple counts of which at least one is a felony and the appellate court reverses the judgment of conviction on any count and affirms other counts, the appellate court must remand the case to the trial court for resentencing on the affirmed count or counts.

Area(s) of Law:
  • Criminal Procedure

Vasquez v. Double Press Mfg., Inc.

If a plaintiff's claims are covered under Article I, section 17 of the Oregon Constitution, ORS 31.710(1) cannot reduce the amount of damages that a jury determines is proper.

Area(s) of Law:
  • Civil Law

De Los-Santos v. Si Pac Enterprises, Inc.

Under ORS 656.267, in order to prevail on a new or omitted condition claim, the claimant must prove that the new or omitted condition not only exists, but also qualifies as a condition, rather than a mere symptom.

Area(s) of Law:
  • Workers Compensation

Dept. of Human Services v. C.M.E.

The benchmark for proving a parent has made "adequate process toward reunification" is not "mere participation in services," but rather whether a parent had progressed in the standards set out in ORS 419B.498(2).

Area(s) of Law:
  • Juvenile Law

Dept. of Human Services v. K. A. H.

Under ORS 45.400(3)(b), testimony may not be given via telephone if the issues the party will testify about are so determinative of the outcome that face-to-face cross-examination is necessary.

Area(s) of Law:
  • Juvenile Law

Kerr v. Bauer

When a case is reversed and remanded to a trial court, that trial court has the ability to make a new decision, consistent with the appellate court's decision, unless the appellate opinion directed a particular outcome.

Area(s) of Law:
  • Appellate Procedure

Martini v. DMV

An increased suspension under ORS 813.430(2)(b)(C) is allowed only when a person is convicted of a driving offense that includes as an element the violation of a BAC limit.

Area(s) of Law:
  • Administrative Law

OHSU v. Oregonian Publishing Co., LLC

Public records may not be disclosed if they contain information about the physical, mental health, psychiatric care, or treatment of a person, when that disclosure can cause an unreasonable invasion of privacy, and the public interest does not demand disclosure.

Area(s) of Law:
  • Civil Law

Oregon Connections Academy v. Scio. Sch. Dist. 95C

Under ORS 338.065(5)(e), an “expiring charter shall remain in effect until a new charter is negotiated” only where necessary to avoid an interruption in service.

Area(s) of Law:
  • Administrative Law

State v. Habibullah

Under ORS 136.440 the state must present evidence that connects a defendant with the commission of the offense and the evidence may not be testimony of an accomplice.

Area(s) of Law:
  • Criminal Law

State v. Hickey

Under ORS 163.205(1)(a) a person withholds necessary and adequate physical care when they withhold care that is absolutely required to meet a dependent’s basic safety and survival needs.

Area(s) of Law:
  • Criminal Law

State v. Hooper

A defendant's appeal will be dismissed under the fugitive dismissal rule if the defendant absconds with conscious intent to hide from or otherwise evade legal process.

Area(s) of Law:
  • Criminal Procedure

State v. J. G. G.

A party to a juvenile proceeding “whose rights or duties are adversely affected by a judgment of the juvenile court may appeal therefrom.” ORS 419A.200(1). For the purposes of appeal, an appealable judgment includes a “final order adversely affecting the rights or duties of a party and made in a proceeding after judgment.” ORS 419A.205(1)(d).

Area(s) of Law:
  • Juvenile Law

State v. Jacquez

Under ORS 161.635, trial courts have the authority to impose fines for Class A misdemeanors without making any findings or following any particular procedures and those decisions are not appealable unless the fine exceeds the statutory maximum.

Area(s) of Law:
  • Criminal Law

State v. Parnell

If the trial court does not make specific findings on all material facts, and there is evidence from which such facts could be decided in more than one way, the Court will presume that the facts were decided in a manner consistent with the trial court’s ultimate findings.

Area(s) of Law:
  • Criminal Procedure

State v. Spynu

When applying ORS 137.717, acts are considered to be part of the same criminal episode when they are so closely linked in time, place, and circumstance that a complete account of a charge cannot be related without relating the details of another charge.

Area(s) of Law:
  • Sentencing

Bowman v. SAIF Corp.

Under ORS 656.386(1)(a), a reasonable fee includes all the time an attorney dedicates that relates to litigating a denial and rescission, including reasonable time spent after an insurer communicates its intention to rescind its denial and accept a claim.

Area(s) of Law:
  • Attorney Fees

Dept. of Human Services v. A. E. R.

Under ORS 419B.476(2)(a), the court will not change the plan from reunification to adoption unless DHS proves that it made reasonable efforts to make it possible for the child to return home safely and the parent has not made a sufficient progress for that to occur. Under ORS 419B.875(2), a parent has a statutory right to participate in the hearing including the right to testify, consult with counsel about strategic evidentiary decisions, and to complete the presentation of the evidence.

Area(s) of Law:
  • Family Law

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

The Indian Child Welfare Act does not effect judicial standards retroactively once the child taken into custody is discovered to be of Indian tribal descent.

Area(s) of Law:
  • Family Law

Dept. of Human Services v. K.G.A.B.

Under ORS 419B.824(6)(c), DHS may serve a parent or guardian by service of newspaper publication in the county where the action was commenced if DHS shows a written motion and affidavit from which it can be determined that DHS was unable to accomplish service through any other method.

Area(s) of Law:
  • Juvenile Law

Frazer v. Enterprise Rent-A-Car Co. of Oregon

On remand from the Court of Appeals, an agency has the authority to determine which issues were and were not preserved for review.

Area(s) of Law:
  • Administrative Law

Putnam v. Angelozzi

Under ORS 138.550(2), a petitioner seeking post-conviction relief may be eligible for relief based on issues not raised on direct appeal.

Area(s) of Law:
  • Appellate Procedure

state v. Boss

Under ORAP 5.45(1), the imposition of attorney fees is clear error if there is no evidence on the record regarding Defendant's ability to pay the fee, and a reviewing court may exercise its discretion to correct the clear error.

Area(s) of Law:
  • Criminal Procedure

State v. Johnson

A motion under ORS 138.690 for DNA testing of evidence used against a defendant in post-conviction relief proceedings does not constitute a collateral attack on the underlying conviction or validity of the proceedings. A motion that produces exculpatory evidence may or may not constitute a collateral attack on the validity of the underlying conviction or proceedings in violation of a previous plea agreement.

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

State v. Lopez-Silva

Under State v. Coverstone, 260 Or App 714 (2014), it is plain error for a court to order a defendant to pay court-ordered attorney fees without an assessment of the defendant's ability to pay.

Area(s) of Law:
  • Attorney Fees

Village at North Pointe Condo. Assn. v. Bloedel Constr.

When calculating attorney fees, insurance coverage issues, if not recoverable, may be separated from those incurred in litigating the claims, if recoverable.

Area(s) of Law:
  • Attorney Fees

Dept. of Human Services v. A. D. D. B.

Under ORS 419B.337, for an order removing a child from the parents’ custody or continuing substitute care, a court must find that reasonable efforts were made to make it possible for the child to safely return home.

Area(s) of Law:
  • Family Law

Dept. of Human Services v. A. S.

For a permanency plan to be changed, ORS 419B.476(2)(a) requires the juvenile court to determine that the Department of Human Services (DHS) made reasonable efforts to make it possible for the ward to safely return home.

Area(s) of Law:
  • Family Law

Friends of Yamhill County v. Board of Commissioners

If a declaratory judgment proceeding is exclusively available through the writ of review process under ORS 34.020, and if it is substantially the same relief as a writ of review, the relief may be denied.

Area(s) of Law:
  • Civil Law

Innovative Design & Construction, LLC v. CCB

When reviewing a factual finding for substantial evidence, the Court must determine whether the record, viewed as a whole, would permit a reasonable person to make the factual finding in question.

Area(s) of Law:
  • Administrative Law

State v. Blair

Under State v. DeLong, the scope of voluntary consent is determined by what a reasonable person would have understood the search to include, given the exchange between the officer and the suspect, in light of the totality of the circumstances surrounding the voluntary consent.

Area(s) of Law:
  • Criminal Law

State v. Savage

A defendant is entitled to a jury instruction on accomplice witness testimony if evidence suggests the witness testifying may have been an accomplice to the accused crime.

Area(s) of Law:
  • Criminal Law

State v. Winn

The scope of consent is determined on what a typical, reasonable person would have understood in the totality of the circumstances. Consent to search a closed container inside a purse is not granted by consent to search the entire purse.

Area(s) of Law:
  • Criminal Procedure

State v Akerman

Under ORS 137.106(1), the state must provide sufficient evidence of: (1) criminal activities, (2) damages, and (3) a causal relationship between the two.

Area(s) of Law:
  • Sentencing

June 41 summaries

Hanson v. DMV

Officers certified by the Department of Public Safety Standards and Training to request urine samples are considered certified for the purposes of ORS 813.131.

Area(s) of Law:
  • Administrative Law

Medina v. State of Oregon

A plaintiff makes a prima facie case when the evidence the plaintiff presents could cause a rational trier of fact to infer the claim is true. A trial court may not grant summary judgment to a defendant when the plaintiff has made a prima facie case.

Area(s) of Law:
  • Civil Procedure

Nationstar Mortgage, LLC v. Peper

Under Brandrup v. ReconTrust Co., a mortgage or deed of trust will always be attached to the promissory note that it secures. Under Niday v. GMAC Mortgage, LLC, the original lender (or any successor) of a trust deed is the beneficiary, notwithstanding what the trust deed purports to designate.

Area(s) of Law:
  • Trusts and Estates

State v. Anthony

The trial court commits an error if it does not examine the criminal defendant's ability to pay court appointed attorney fees.

Area(s) of Law:
  • Attorney Fees

State v. Hermanson

In order to obtain evidence through a warrantless entry, the state must show how long it would take to obtain a search warrant and that the police had an objectively reasonable belief that the evidence would be lost within that specified time.

Area(s) of Law:
  • Criminal Procedure

State v. Hernandez-Camacho

Under ORS 161.665(4), a court may not sentence a defendant to pay attorney fees unless the defendant is or may be able to pay them.

Area(s) of Law:
  • Criminal Law

State v. Rinehart

A criminal defendant may not be required to pay attorney fees unless the defendant is or may be able to pay those fees.

Area(s) of Law:
  • Attorney Fees

State v. Rose

Under Article I, section 12 of the Oregon Constitution the police must cease custodial interrogation when a criminal suspect unequivocally invokes his right against self-incrimination.

Area(s) of Law:
  • Criminal Law

State v. Williams

Under ORS 181.812(1)(d) a person is required to report as a sex offender when they move to a new residence and must report both the move and the new address. The reporting requirement is triggered when a defendant has both left the former residence and acquired a new residence.

Area(s) of Law:
  • Criminal Law

Wal-Mart Associates, Inc. v. Lamb

Upon awarding attorney fees to a claimant under OAR 438-015-0010(4), an Administrative Law Judge or Board is required to explain in its order each of the enumerated factors listed under OAR 438-015-0010(4) as they contribute to the decision to award attorney fees.

Area(s) of Law:
  • Administrative Law

ACN Opportunity, LLC v. Employment Dept.

Under ORS 657.087(2) petitioners must establish to what extent the IBOs received compensation for in-person solicitations “in the home.” Under ORS 670.600(3) petitioners must establish that its IBOs maintained a business location that was separate from petitioner’s or was in a portion of the IBOs residence that was used primarily for business.

Area(s) of Law:
  • Administrative Law

Dept. of Human Services v. S. S.

The Department of Human Services must undertake reasonable efforts to make it possible for children to safely return home based on circumstances that exist prior to a permanency hearing and that period must be sufficient in length to afford a good opportunity to assess parental progress.

Area(s) of Law:
  • Family Law

G. M. P. v. Patton

To obtain a restraining order under ORS 107.718(1), a petitioner must prove by a preponderance of the evidence that: (1) the respondent abused the petitioner within 180 days preceding the filing of the petition; (2) there is an imminent danger of further abuse to petitioner; and (3) the respondent represents a credible threat to the physical safety of petitioner.

Area(s) of Law:
  • Family Law

Maxfield v. Nooth

The standard for determining whether counsel's deficient representation prejudiced a defendant is whether "the deficient performance could have affected the outcome of the case."

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

State v. F. H.

Under State v. A.D.S., an involuntary civil commitment cannot be based on apprehensions, speculations, and conjecture that an appellant cannot care for his basic needs.

Area(s) of Law:
  • Civil Commitment

State v. Garcia

ORS 162.247 prohibits the State from charging a defendant with interfering with a peace officer if the State has also charged the defendant with resisting arrest based on the same conduct.

Area(s) of Law:
  • Criminal Law

State v. Lammi

Under ORS 419B.040(1), in the case of abuse of a child, the privileges created in ORS 40.230 to 40.255, including the psychotherapist-patient privilege, shall not be a ground for excluding evidence regarding a child’s abuse, or the cause thereof, in any judicial proceeding resulting from a report made pursuant to ORS 419B.010 to 419B.050.

Area(s) of Law:
  • Evidence

State v. Newmann

Under ORAP 5.45(1), the Court of Appeals may, at its discretion, review an unpreserved assignment of error as “an error of law apparent on the record” if: (1) the error is one of law; (2) the error is “apparent,” and (3) the error appears “on the face of the record.”

Area(s) of Law:
  • Criminal Procedure

State v. Vierria

A criminal defendant, in his right to court-appointed counsel, does not have a right to another court-appointed attorney in the absence of a legitimate complaint concerning the one already appointed. A sentence for the crime of unauthorized use of a motor vehicle (UUV) may not exceed a maximum indeterminate sentence of 60 months.

Area(s) of Law:
  • Criminal Procedure

State v. Wade

A second-degree disorderly conduct conviction may be reversed if a rational fact finder would find the elements beyond a reasonable doubt and there was no physical conduct by the defendant.

Area(s) of Law:
  • Criminal Law

State v. Whitten

There are five factors for determining whether a traffic violation should be treated as a criminal prosecution for constitutional purposes: “(1) the type of offense; (2) the potential penalties arising from a conviction; (3) the collateral consequences arising from a conviction; (4) the ‘punitive significance’ of a conviction; and (5) whether the pretrial procedures associated with a criminal proceeding are allowed.”

Area(s) of Law:
  • Criminal Procedure

Wittemyer v. City of Portland

A "poll or head tax" has two simultaneous criteria: (1) the tax must be assessed per capita, and (2) it must be a uniform, fixed amount. Both are required, and neither alone is sufficient.

Area(s) of Law:
  • Tax Law

Hansen v. Bd. of Comm'rs of Benton Cnty.

Under the invited error doctrine, a party fails to preserve for appeal a claim of error when the claiming party was "actively instrumental in bringing about" the alleged error.

Area(s) of Law:
  • Appellate Procedure

State v. Huddleston

Under ORS 161.485(2), in order for convictions for inchoate offenses to merge, a defendant’s actions must constitute a single course of conduct aimed at the commission of the same crime.

Area(s) of Law:
  • Criminal Law

State v. Keller

Under Article 1, section 9 of the Oregon Constitution, an out of state officer lacks the authority to stop a suspect in Oregon, as the out of state officer acts beyond his jurisdiction to exercise his lawful authority.

Area(s) of Law:
  • Constitutional Law

State v. Vage

Under the plain error, an error is “plain” only if: (1) the error is one of law, (2) the legal error is obvious and not reasonably in dispute, and (3) the error appears on the face of the record such that the court need not go outside the record to identify the error or choose between competing inferences, and the facts constituent the error are irrefutable.

Area(s) of Law:
  • Criminal Procedure

State v. Wolfgang

Under ORS 131.505(4), when a defendant is found guilty of more than one criminal offense that arises out of a continuous and uninterrupted course of conduct, the sentences imposed for the resulting convictions must be concurrent.

Area(s) of Law:
  • Criminal Law

Allen v. SAIF

Under ORS 656.005(7)(a)(A), in order for a claimant with an injury determined to be a “consequential condition” arising out of an earlier compensable injury to recover, that claimant must prove that the earlier compensable injury was the major contributing cause of the subsequent injury.

Area(s) of Law:
  • Workers Compensation

Baranovich v. Brockamp

Under Article I, section 11, of the Oregon Constitution, prejudice means that counsel’s failure had a tendency to affect the result of the prosecution.

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

Brush and Brush

An amendment to ORS 107.105(1)(f) removed separately held property acquired by inheritance from presumption of equal contributions. A domestic relations case is "pending" until a written decision is entered, even if a judge has ruled from the bench.

Area(s) of Law:
  • Family Law

Cruz v. Multnomah County., et al.

Under ORS 30.265(6)(f), public actors are immune from liability, when acting without bad faith or malice, and relying on their plausible interpretation of laws that turn out to be unconstitutional, invalid, or inapplicable.

Area(s) of Law:
  • Tort Law

Department of Human Services v. T.E.B.

A parent's admission to being incarcerated and unavailable to care for their child is sufficient for asserting jurisdiction over the child.

Area(s) of Law:
  • Juvenile Law

Farmers Ins. Co. v. Aranda

Under OAR 438-006-0036, a motion made to dismiss a claim during closing arguments, rather than filed as a response to the claim or brought up during the hearing, is not a timely response.

Area(s) of Law:
  • Workers Compensation

Goodlette v. Causey

Under ORS 138.590, a petitioner is entitled to suitable counsel, but a post-conviction relief court is not required to appoint substitute counsel simply because a petitioner disagrees with his or her attorney’s reasonable strategic choices.

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

Hooker Creek Cos., LLC v. Cent. Or. Land Dev.

A trial court does not have the authority to award attorney fees on a claim resolved by a limited judgment by a second, supplemental limited judgment.

Area(s) of Law:
  • Attorney Fees

International Longshore and Warehouse Union, Local 8 v. Port of Portland

"Law of the case" doctrine does not preclude a new case from revisiting an issue determined in a previous case and potentially overruling the issue.

Area(s) of Law:
  • Administrative Law

International Longshore and Warehouse Union, Locals 8 & 40 v. Port of Portland

The Employment Relations Board does not have jurisdiction to hear complaints under the Public Employee Collective Bargaining Act unless they are based off a public employer's illegal acts.

Area(s) of Law:
  • Administrative Law

L. E. A. v. Taylor

ORS 30.866(2) requires service of the petition and temporary stalking protection order on respondent. A judgment is void for lack of personal jurisdiction where a plaintiff fails to serve the defendant.

Area(s) of Law:
  • Civil Procedure

State v. Barber

Mere acquiescence occurs when an individual is not given a reasonable opportunity to choose to consent or when he or she is informed that a search will occur regardless of whether consent is given.

Area(s) of Law:
  • Criminal Procedure

State v. Carrasco-Montiel

When a party having knowledge of an error or an irregularity during trial fails to call it to the court’s attention and remains silent, speculating on the result, he is deemed to have waived the error, and the denial of a motion for a new trial based upon that ground presents no reviewable question.

Area(s) of Law:
  • Appellate Procedure

State v. Thomas

OEC 703 does not permit the admission of inadmissible evidence just because it is offered through an expert witness's testimony.

Area(s) of Law:
  • Evidence

July 34 summaries

Dept. of Human Serv. v. S.M.S

Under ORS 419B.100(1)(c), the requirements for a court to take jurisdiction of a child are satisfied if, under the totality of the circumstances at the time of the jurisdictional hearing, there is a reasonable likelihood of harm to the welfare of the child or another person.

Area(s) of Law:
  • Juvenile Law

Federal National Mortgage Association v. United States of America

ORCP 21 A(3) provides for dismissal of a plaintiff's case when there is another action pending between the same parties for the same cause. Where the plaintiff is a defendant in another pending action, ORCP 21 A(3) does not authorize dismissal of the plaintiff’s claim unless it either was required to be asserted as a counterclaim or necessarily will be adjudicated in the other action.

Area(s) of Law:
  • Civil Procedure

Kachan v. Country Preferred Insurance

Whether an insurer reasonably required an Examination Under Oath in order to disperse benefits to a policy-holder is a genuine issue of material fact sufficient to contest a motion for summary judgment.

Area(s) of Law:
  • Civil Procedure

Lawrence v. Bailey

In confirming an arbitration award, a court lacks authority to grant a credit for advanced payments of medical expenses without an evidentiary basis.

Area(s) of Law:
  • Arbitration

Mellerio v. Nooth

To show inadequate assistance of counsel a petitioner “must demonstrate two things: that his trial counsel failed to exercise reasonable professional skill and judgment, and that he suffered prejudice as a result.”

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

State v. Clarke

Under State v. Hampton, relevant evidence of motive is admissible to prove a defendant committed the physical element of a charged act if it makes more probable the fact that a defendant physically committed a crime than if such a motive were not established. Under State v. Brock, if the record establishes that a trial court consciously balanced the costs of admitting prior acts evidence against its benefits, there was due process balancing as required by OEC 403.

Area(s) of Law:
  • Evidence

State v. Hirschman

ORS 260.715(9) is facially unconstitutional because the law criminalizes a "offer to purchase" ballots and therefore is directed at the the act of communicating itself and not at whatever harmful effects of the expression may exist.

Area(s) of Law:
  • Constitutional Law

Wells Fargo Bank, NA v. Haas

Summary judgment that forecloses a defendant’s interest in a manufactured dwelling is not appropriate if it is not clear if the manufactured home is a real property interest secured by the trust deed.

Area(s) of Law:
  • Bankruptcy Law

CEVA Freight, LLC v. Employment Department

Under ORS 670.600(2), an entity is considered an independent contractor if it is (1) "free from direction and control over the means and manner of providing the services;" (2) "customarily engaged in an independently established business;" and (3) "responsible for obtaining other licenses or certificates necessary to provide the services."

Area(s) of Law:
  • Employment Law

Delta Logistics, Inc. v. Employment Dept. Tax Section

Under O.R.S. 657.047(1)(b), “lease" requires transfer of legal possession and use of the vehicle to the for-hire carrier, but retention of physical possession, control, and use to the lessor for the purpose of operation and maintenance of the vehicle.

Area(s) of Law:
  • Employment Law

Everett v. Premo

Under Article I, section 11, of the Oregon Constitution and the Sixth Amendment, a petitioner who seeks to invalidate a conviction based on counsel’s performance at trial must prove (1) the lawyer failed to exercise reasonable professional skill and judgment, and (2) the petitioner suffered prejudice as a result. Prejudice occurs where the lawyer’s deficient performance “could have tended to affect the outcome of the case.”

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

Gilmour v. Linn County

Under Collins v. Klamath County, a local government’s interpretation of a land use regulation that implements state law is not entitled to deference under ORS 197.829.

Area(s) of Law:
  • Land Use

Market Transport, Ltd. v. Employment Dept.

ORS 657.047 provides an exemption from the definition of "employment" for services performed by persons who (1) lease "their equipment" to a for-hire carrier; (2) perform transportation services for the for-hire carrier; and (3) personally operates, furnishes and maintains the equipment. The driver is an employee of the person furnishing and maintaining the vehicle and not an employee of the for-hire carrier.

Area(s) of Law:
  • Employment Law

May Trucking Co. v. Employment Dept.

Under ORS 657.047, an exemption from “employment” exists (1) when a person leases “their equipment” to a for-hire carrier; (2) performs transportation services for the for-hire carrier; and (3) personally operates, furnishes and maintains the equipment.

Area(s) of Law:
  • Employment Law

State v. Branch

Where a defendant on trial for initiating a false police report moves for a judgment of acquittal, there must be evidence that the defendant did more than lie in response to police questioning during the course of a police investigation.

Area(s) of Law:
  • Criminal Law

State v. Grubb

Under OEC 403, evidence may be admitted if it is relevant to an issue raised on direct examination, even if it requires inquiring into a different set of facts from those that were elicited on direct examination.

Area(s) of Law:
  • Evidence

State v. Harris

Where hearsay evidence of a material witness is admitted and the state has not made a good faith effort to secure the witness's attendance, such admission violates the defendant's rights under the Confrontation Clause of Article I, section 11, of the Oregon Constitution.

Area(s) of Law:
  • Evidence

State v. Hudson

Under OEC 103, evidentiary errors are not presumed to be prejudicial. A defendant’s conviction due to an evidentiary error cannot be reversed unless the defendant can demonstrate that he or she was actually prejudiced by that error.

Area(s) of Law:
  • Evidence

State v. Sharinghousen

Under Oregon Uniform Criminal Jury Instruction (UCrJI) 1029, inconsistencies between a witness's trial testimony and the trial testimony of another witness can support the giving of a witness-false-in-part instruction if the jury could find from those inconsistencies that the witness willfully testified falsely.

Area(s) of Law:
  • Criminal Procedure

State v. Stubblefield

Under State v. Cook, a warrantless search does not violate a defendant’s rights under Article I, section 9, of the Oregon Constitution when that defendant’s words or conduct demonstrate abandonment of the searched property.

Area(s) of Law:
  • Criminal Procedure

Zach v. Chartis Claims, Inc.

Since the Director of the Department of Consumer and Business Services decides both the policy within the rules and resolves vocational disputes, deference must be given to his or her interpretation of the rules.

Area(s) of Law:
  • Administrative Law

Breece v. Amsberry

Under ORS 138.640(1), a post-conviction court is barred from entering an ambiguous judgment. Where a post-conviction court errs by entering an ambiguous judgment, the remedy is to vacate and remand the decision back to the post-conviction court.

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

Dayton v. Jordan

Whether a sale of land creates an implied easement is determined on a case by case basis. The dispositive question is whether a reasonable purchaser would expect the easement under the circumstances in which he or she purchased the land.

Area(s) of Law:
  • Property Law

Dept. of Human Services v. L. E.

A party asserting that an appeal is not moot must show a probable adverse consequence from the underlying judgment—a “mere possibility” of adverse consequences is not sufficient.

Area(s) of Law:
  • Juvenile Law

Dept. of Human Services v. T.L.

When a parent seeks to dismiss juvenile court jurisdiction at a time when the permanency plan is something other than reunification, the proponent or proponents of ongoing jurisdiction may invoke a presumption, based on the plan, that the jurisdictional bases continues to make it unsafe for the child to return home. If the presumption is invoked, a parent seeking dismissal bears the burden of proving, by a preponderance of the evidence, that the jurisdictional bases no longer pose a current threat of serious loss or harm to the child that is reasonably likely to be realized.

Area(s) of Law:
  • Juvenile Law

Graydog Internet, Inc. v. Giller

Under ORS 60.952(6) the filing of a third party complaint constitutes “the filing of a proceeding.” “Proceeding” means a civil, criminal, administrative or investigatory action and a "filing" can only be attributed to the filing of the subsequent complaint containing a claim.

Area(s) of Law:
  • Corporations

Northwest Public Communications Council v. Qwest

A local exchange carrier “who seeks to rely on the waiver granted in the instant Order must reimburse its customers or provide credit from April 15, 1997 in situations where the newly tariffed rates, when effective, are lower than the existing tariffed rates.” Judicial estoppel is a common law equitable principle that applies to prevent a litigant who has benefitted from a position taken in an earlier judicial proceeding from taking an inconsistent position in a later proceeding.

Area(s) of Law:
  • Administrative Law

Nulph v. Bd. of Parole and Post-Prison Supervision

Under ORS 144.228(1)(c),the phrase "reasonable cause" is a delegative term requiring the Board to exercise its discretion to define the term when making a decision under ORS 144.228(1)(c).

Area(s) of Law:
  • Administrative Law

State of Oregon v. Mansor

Under Article I, section 9 of the Oregon Constitution, to satisfy the particularity requirement the warrant must first describe the place to be searched and the items to be seized and examined that officers can ascertain with reasonable certainty that place and those items. Second, the warrant must, to the extent reasonably possible, be drawn in such a way as to preclude seizures and searches not supported by probable cause.

Area(s) of Law:
  • Criminal Procedure

State v. Green

Under Article I, section 11 of the Oregon Constitution, it may be a violation of the right to counsel to prevent an individual from consulting with his attorney prior to taking a Intoxilyzer test if the officer is within earshot of the attorney or his receptionist.

Area(s) of Law:
  • Evidence

State v. Holt

A trail court's failure to conduct an OEC 403 balancing test may result in a Due Process violation under the Unites States Constitution.

Area(s) of Law:
  • Evidence

State v. James

A witness may not testify about the credibility of another witness, but this rule does not bar a witness from testifying that he has agreed with the State to testify truthfully in a plea or other cooperation agreement.

Area(s) of Law:
  • Evidence

State v. Newsted

When reviewing a challenge to the sufficiency of an affidavit supporting a magistrate’s issuance of a search warrant, the court asks whether “a neutral and detached magistrate could conclude (1) that there is a reason to believe that the facts stated are true; and (2) that the facts and circumstances disclosed by the affidavit are sufficient to establish probable cause to justify the search requested.” State v. Castilleja, 345 Or 264, 192 P3d 1283 (2008).

Area(s) of Law:
  • Criminal Procedure

State v. Simmons

A trial court, when faced with a motion for a judgment of acquittal, is required to (1) view disputed facts in the light most favorable to the state, (2) consider all reasonable inferences of guilt and innocence arising from the undisputed facts, and (3) inquire whether “any” rational juror could find defendant guilty beyond a reasonable doubt, based on consideration of disputed and undisputed facts and the reasonable inferences arising from them.

Area(s) of Law:
  • Civil Procedure

August 51 summaries

Hessel v. Dept. of Corrections

It is within the general statutory policy given to the Department of Corrections to govern, manage, and administer prisons.

Area(s) of Law:
  • Administrative Law

Hinman v. Silver Star Group, LLC

Under ORS 36.600 to 36.740, a trial court has the power to determine both whether claims fall under an arbitration clause and whether the contract as a whole is unconscionable, but must engage in factfinding to make these determinations rather than relying solely on the allegations of the parties.

Area(s) of Law:
  • Alternative Dispute Resolution

Johnson and Price

Under ORS 107.105, courts are not authorized to award property or attorneys fees as spousal support. In addition, when a court is rendering a judgment of dissolution, the court may provide for “the division or other disposition between the parties of the real or personal property as may be just and proper."

Area(s) of Law:
  • Family Law

Kennison v. Dyke

Under ORS 109.119(3)(b), before granting visitation rights to a person who has an ongoing personal relationship with a child, a court is required to determine whether that person rebutted, by clear and convincing evidence, the statutory presumption found in ORS 109.119(2)(a) that the child’s guardian acted in the best interest of the child in initially denying visitation rights to that person.

Area(s) of Law:
  • Family Law

Lopez-Becerra v. State of Oregon

Under ORS 138.640(1), a post-conviction judgment requires that the court: identify the claims for relief considered and make separate rulings on each claim; declare whether the denial is based on petitioner’s failure to utilize or follow available state procedures or a failure to establish the merits of the claim; make the legal bases for denial of relief apparent.

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

Shriners Hospitals for Children v. Woods

A default judgment cannot be enforced in a later proceeding in the face of a motion to set aside the judgment for lack of personal jurisdiction, which would make the judgment void, regardless of how long after the default judgment the motion is made.

Area(s) of Law:
  • Civil Procedure

State v. Bevil

Under ORS 163.205(1)(b)(D), the first-degree criminal mistreatment statute makes it a Class C felony for any person who has assumed the care of an elderly person to take the elderly person’s money or property for any use or purpose not in the due care and lawful execution of the person’s responsibility.

Area(s) of Law:
  • Criminal Law

State v. Davilla

In determining whether a factor constitutes a substantial and compelling departure, aggravating factors that were not included in the state's notice to defendant and that were not proved beyond a reasonable doubt before a jury may not be used by the sentencing court as a substantial and compelling reason to impose an upward departure sentence.

Area(s) of Law:
  • Criminal Law

State v. Hawkins

ORS 166.025(1)(f) is intended to apply when a defendant's sensory conduct cause the people exposed to experience unpleasant physical, sensory effects.

Area(s) of Law:
  • Criminal Law

State v. Henderson-Laird

Erroneously admitted hearsay evidence is not prejudicial if it is cumulative of evidence that is not otherwise objected to.

Area(s) of Law:
  • Evidence

State v. Jones

When considering whether a defendant abandoned a protected interest in property prior to a police search, affirmatively claiming an interest in certain items is insufficient by itself to support an inference, by negative implication, that the defendant abandoned his or her interests in other items.

Area(s) of Law:
  • Evidence

State v. Musalf

Where a criminal defendant gives limited consent to a search, a police officer violates his right against unreasonable search and seizure under Article I, section 9, of the Oregon Constitution, if the police officer's search extends outside that limited consent. A police officer must make a particularized explanation as to the nature of a threat to his safety in order for a warrantless search to comport with the officer safety exception of Article I, section 9, of the Oregon Constitution.

Area(s) of Law:
  • Criminal Procedure

Vicente v. Nooth

In order to comply with ORS 138.640(1), a judgment denying claims for post-conviction relief must, at minimum, (1) identify the claims for relief that the court considered and make separate rulings on each claim; (2) declare, with regard to each claim, whether the denial is based on a petitioner’s failure to utilize or follow available state procedures or a failure to establish the merits of the claim; and (3) make the legal bases for denial of relief apparent.

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

Yankee v. Oregon Medical Board

OAR 137-003-0670(2) provides that if a party fails to appear at a hearing and the agency finds that the party had good cause for the failing to appear, then the agency may not issue a final order by default. If the reasons for the party’s failure to appear are in dispute, the agency shall schedule a hearing on the reasons for the party’s failure to appear.

Area(s) of Law:
  • Administrative Law

122nd Group, LLC v. DCBS

ORS 646A.620(1)(c)'s phrase "make available to the public" does not include throwing an evicted tenants belongings in the dumpster and thus exposing them to dumpster divers.

Area(s) of Law:
  • Administrative Law

Dayton v. Jordan

Under Cheney v. Mueller, evidence of prior use of real property is one of many factors to be considered in determining whether an implied easement exists, and “cannot of itself establish an easement.”

Area(s) of Law:
  • Property Law

Heroff v. Coursey

State v. Parker established that it is improper for counsel to interject personal appraisal of a witness’s credibility in a way, which would suggest to the jury that the appraisal is based upon counsel’s own knowledge of facts not introduced into evidence.

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

State v. Davis

Under ORS 138.222(2), a “presumptive sentence” that is unreviewable applies only to sentences imposed under the sentencing gridlock guidelines.

Area(s) of Law:
  • Sentencing

State v. Hanson

An error does not qualify for plain error review if the record contains a competing inference that the party may have a strategic purpose for not objecting and the competing inference is plausible.

Area(s) of Law:
  • Appellate Procedure

State v. Webster

An issue of law reasonably in dispute is not an apparent error that satisfies the second prong of the test for "plain error" stated in State v. Brown, 310 Or 347 (1990) (to qualify as “plain error,” an asserted error must be (1) one of law; (2) it must be apparent, i.e., the point must be obvious, not reasonably in dispute; and (3) it must appear on the face of the record).

Area(s) of Law:
  • Criminal Procedure

Code and Code

A trial court's determination of property division is just and proper in all the circumstances based on the courts discretion, unless a legal error has occurred.

Area(s) of Law:
  • Family Law

State v. Cazarez-Hernandez

When analyzing the legitimacy of a Miranda warnings, the Court’s inquiry is whether the concepts have been expressed rather than whether the words have been accurately translated. The warning must convey that the Defendant has the right to remain silent and to consult with counsel and that any statements that the person makes may be used against the person in a criminal prosecution.

Area(s) of Law:
  • Criminal Procedure

State v. Gray

Under ORS 137.540, probation may be revoked if an individual fails to abide by all general and special conditions of probation and the court is not required to prove that it was a willful failure.

Area(s) of Law:
  • Criminal Procedure

State v. Keller

In order to establish probable cause for an arrest for possession of controlled substances, an officer must show more facts than merely presence in the proximity of a controlled substance.

Area(s) of Law:
  • Criminal Procedure

State v. L. P. L. O.

Under ORS 419B.100, the court’s exclusive jurisdiction attaches as soon as any case involving a person under 18 years old is initiated and continues until the case is disposed of as provided by statute. In determining whether the court has jurisdiction, the court's objective is to “determine whether the child needs the court’s protection, not to determine the nature or extent of that protection.”

Area(s) of Law:
  • Juvenile Law

State v. Ritter

Under ORS 165.800, in order to convert the personal identification of another person to one’s own use via “appropriation,” a Defendant must take, acquire, or claim that personal identification by possessing or controlling it without the consent or permission of the person it identifies.

Area(s) of Law:
  • Criminal Law

State v. Wright

As an exception to the warrant requirement, exigent circumstances "require the police to act swiftly to prevent danger to life or serious damage to property, or to forestall a suspect's escape or the destruction of evidence."

Area(s) of Law:
  • Criminal Procedure

Clackamas County Oregon v. Clackamas River Water

Under ORS 258.046, an election contest proceeding should have a prevailing party, even if a claim does not exist, and the prevailing party should be entitled to a mandatory fee award.

Area(s) of Law:
  • Attorney Fees

Finney-Chokey v. Chokey

If a particular factual finding was not necessary to the trial court’s determination, and the trial court did not expressly make the finding on the record, an appellate court will not presume that the finding was made.

Area(s) of Law:
  • Civil Procedure

State v. Basua

Under OEC 404(2)(a), evidence of a defendant’s character for sexual propriety is admissible if (1) the evidence concerns a “trait of character”; (2) that trait is “pertinent” to the crime charged; (3) the evidence is offered in the proper form under OEC 405, and (4) the evidence was not of specific instances of conduct.

Area(s) of Law:
  • Evidence

State v. Conrad

A court’s decision to admit evidence after conducting OEC 403 balancing meets the Mayfield requirements even if the court does not expressly follow the Mayfield analysis, so long as the record shows the court considered the substantive matters prescribed in Mayfield.

Area(s) of Law:
  • Evidence

Wilson v. Premo

Petitioner received inadequate assistance of counsel where Attorney failed to request a Boots instruction and the jury convicted Petitioner of 2 counts, and acquitted Petitioner of 2 counts, of the same crime without identifying the occurrence that formed the basis for each count.

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

Atkinson v. Board of Parole

Under Janowski/Fleming v. Board of Parole, an inmate is not entitled to immediate release if a release date has not been set, even if it should have been set for a date that has already passed. The only relief an inmate is entitled to is a release hearing.

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

Austin v. Premo

In a post-conviction appeal, Petitioner must raise a substantial question of law as to both elements in order to avoid summary affirmance. A substantial question of law is a question of law that is important, having solid or firm foundation being soundly based or presenting probable facts or circumstances sufficient to support a reasonable legal hypothesis.

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

Bishop v. Waters

Under ORS 105.475, buyers have a right to revoke an agreement for the sale of land until the sale closes. The sale often closes when the parties sign the contract, but never until the title is transferred.

Area(s) of Law:
  • Contract Law

DiNicola v. State of Oregon

For purposes of issue preclusion, where the issue in both proceedings requires the application a particular legal standard to the same set of facts, the issue is identical when the legal standard in both proceedings is the same or similar.

Area(s) of Law:
  • Civil Procedure

Goings v. CalPortland Co.

Under ORS 656.156, an employee may sue their employer for an injury covered under workers’ compensation law if the injury resulted from a deliberate intent of the employer to produce the injury.

Area(s) of Law:
  • Workers Compensation

Goodsell v. Eagle-Air Estates Homeowners Assn.

ORS 94.719 establishes attorney fee entitlement for the prevailing party of legal proceedings involving a homeowner’s association. ORS 94.719 is a compulsory fee statute that applies if there is a single prevailing party on each claim at the end of litigation.

Area(s) of Law:
  • Attorney Fees

K.L.D. v. Daley

Under ORS 107.718(1), “a FAPA restraining order will be upheld only if the evidence established that the alleged conduct create[d] an imminent danger of further abuse and a credible threat to the physical safety of the petitioner.”

Area(s) of Law:
  • Family Abuse Prevention Act

LDS Development, LLC v. City of Eugene

When cities require bonds in order to shape the development of land, the city has an option to enforce the bond but is not required to do so.

Area(s) of Law:
  • Municipal Law

Lennar Northwest, Inc. v. Clackamas County

The Clackamas County Comprehensive Plan’s seven factor test for zoning (CCCP Policy 4.R.2) must be applied giving equal weight to each factor.

Area(s) of Law:
  • Land Use

Mann v. DeCamp

Under State v. McDonnell, a judgment from a judge who lacks authority to render the judgment is voidable, but is not automatically void if the court has subject matter jurisdiction.

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

State v. Anderson

ORS 811.706 does not make a distinction between owners and insurers of property damaged in the hit and run for the purposes of ordering restitution payments.

Area(s) of Law:
  • Civil Law

State v. Bowen

Under ORS 165.800(1), a “transfer” means the selling or giving possession or control of another person’s personal identification to a third person for fraudulent or deceptive purposes, and is distinct from appropriation of another’s credit card for one’s own use.

Area(s) of Law:
  • Criminal Law

State v. Buyes

Defendants must show substantial prejudice in order to request that a trial court sever separate counts for different victims that are similar in nature.

Area(s) of Law:
  • Criminal Procedure

State v. Gore

When a defendant asserts a "defense of property" defense, the jury must be instructed on the State's duty to disprove the defense beyond a reasonable doubt.

Area(s) of Law:
  • Criminal Law

State v. Orcutt

Under ORS 137.717, a trial court may impose up to the maximum presumptive prison term that would be allowed at the time of initial conviction and is not bound by the presumptive terms available at the time of a probation revocation sanction.

Area(s) of Law:
  • Sentencing

State v. Rock

A court can order restitution to the victim of a crime when the State proves a causal connection between the defendant’s criminal activity and the victim’s economic loss. If proven, the defendant has the burden to prove that the victim could have avoided the loss through reasonable conduct.

Area(s) of Law:
  • Criminal Law

State v. Voyles

Proper search of real property requires a separate and independent analysis of the search of the real property and seizure of the personal property within it, and the different interests they implicate.

Area(s) of Law:
  • Criminal Procedure

Stonecrest Properties, LLC v. City of Eugene

An incidental beneficiary has no standing to enforce bond. The Court will look at the intent of the parties to determine whether a nonparty is an incidental beneficiary.

Area(s) of Law:
  • Civil Law

Vanlaningham and Vanlaningham

When awarding spousal support, trial courts must consider the full amount of spouse’s income, including income in probate.

Area(s) of Law:
  • Family Law

September 44 summaries

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

A juvenile court must find jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act, ORS 109.701 to 109.834, in challenges to state jurisdiction and not the proper venue statutes, ORS 419B.118.

Area(s) of Law:
  • Juvenile Law

Mid-Valley Resources v. Foxglove Properties

To prevail on a claim of implied public dedication, the proponent must prove that the grantor intended “to devote his property to a public use, and this intention must be clearly and unequivocally manifested by his acts.” The party seeking to establish adverse possession of an easement must demonstrate by clear and convincing evidence that the “use of the property was actual, open, notorious, exclusive, continuous, and hostile for a 10-year period, and that the use was inconsistent with the use of the easement by the owners of the dominant estate.”

Area(s) of Law:
  • Property Law

Plotkin v. SAIF

Oregon’s anti-SLAPP statute, ORS 31.150, creates an expedited process for dismissal of certain non-meritorioius civil cases without prejudice at the pleading stage. Although the trial court’s threshold determination that plaintiff’s claim is susceptible to an anti-SLAPP motion to strike was correct.

Spilling v. Taylor

Where an inmate filed a Standard Tort Claim Form that included handwritten allegations that his property was taken by a correctional officer, a specific list of the items, and the items’ dollar values, it was error for the trial court to dismiss the action for failure to state a claim on which relief may be granted because those facts are sufficient to state a claim for conversion.

Area(s) of Law:
  • Civil Procedure

State v. Herrera

An appeal does not fall under ORS 138.053(3) because a defendant challenges only the entry of the judgment of conviction. ORS 138.050 controls because the essence of defendant’s arguments concern whether conviction should be entered, therefore the appeal must be dismissed.

Area(s) of Law:
  • Criminal Law

State v. Hoard

State v. Hill established that the circumstances of a dangerous weapon’s use, as mentioned in ORS 161.015(1), rather than design features, convert an object into a dangerous weapon. Under ORS 166.275, if there is evidence from which a jury could infer that an object was not yet a weapon, the jury could consider an attempt charge.

State v. Jenkins

Merger is governed by ORS 161.067, which precludes merger 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; ORS 161.067(2) precludes merger when the same conduct or criminal episode violates only one statutory provision, but involves two or more victims; and ORS 161.067(3) precludes merger when the same conduct or criminal episode violates only one statutory provision and involves only one victim, but the violations are separated by a sufficient pause in the defendant’s criminal conduct to afford the defendant an opportunity to renounce the criminal intent.

Area(s) of Law:
  • Criminal Law

State v. Rankins

Within the meaning of the Commercial Drug Offense statute, ORS 475.900, the term “records” means “intentionally retained notations” maintained in furtherance of an enterprise conducted over a period of time.

Area(s) of Law:
  • Criminal Law

State v. Smith & Smith Excavation, Inc., et al.

Under ORS 279A.030, federal funding, standing alone, does not make a project a “public building or public work of the Federal Government” within the meaning of the federal Miller Act, 40 USC § 3131(b).

Area(s) of Law:
  • Contract Law

State v. Williamson

Under ORS 161.155(2), a person is criminally liable for the conduct of another person constituting a crime if, among other things, with the intent to promote or facilitate the commission of the crime, the person aids or abets another person in planning or committing a crime.

Area(s) of Law:
  • Criminal Law

Trautman/Conte v. City of Eugene

Under ORS 197.763(3), notice of a quasi-judicial hearing must describe the proceeding by explaining the nature of the application, the uses that could be authorized, and the criteria that apply to the application, and a general explanation of the requirements for submitting testimony, as well as a warning that a failure to raise an issue will waive it, precluding subsequent review of that issue.

Area(s) of Law:
  • Land Use

Beaverton Sch. Dist. 48J v. Ward

Under ORS 20.075, a trial court weighing the relevant statutory factors, has “substantial discretion" in determining attorney fees.

Area(s) of Law:
  • Attorney Fees

C.R. v. Gannon

A hearing that is held “pursuant to” ORS 107.718(10) is a hearing where parties have an opportunity to be heard on the issues of law or fact that are placed before the court, which are limited to the legal or factual issues related to the relief available to a petitioner in ORS 107.718(1).

Area(s) of Law:
  • Attorney Fees

Dept. of Human Services v. C.P.

In juvenile dependency cases, the burden shifts to the parents when the parents file a motion to dismiss after the permanency plan has been changed to something other than reunification.

Area(s) of Law:
  • Juvenile Law

Dept. of Human Services v. M.U.L.

Unpreserved inadequate-assistance of counsel claims in dependency cases may be raised in the first instance on direct appeal.

Area(s) of Law:
  • Juvenile Law

Hayward v. Premo

Under ORS 138.525, dismissing a meritless petition is not appealable and an untimely petition must allege facts that, if supported by evidence, would establish that the grounds for relief could not reasonably have been raised timely.

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

Hoddenpyl v. Fiskum

Under ORCP 71 B(1), excusable neglect is grounds for setting aside default judgments when the defendant, or a representative, takes reasonable steps to respond to the complaint, even if the process breaks down later because of a subordinate's mistake.

Area(s) of Law:
  • Civil Procedure

State v. Berg

An appellate court may affirm an erroneous order as harmless error if the alternate argument raised on appeal would have produced a record materially similar to the record produced under the erroneous order.

Area(s) of Law:
  • Criminal Procedure

State v. Christy

State v. Pumphrey provides that a court may award restitution for expenses incurred by a victim in implementing security measures in response to a defendant’s crimes, if there is evidence sufficient to support a finding that Defendant’s criminal activities were a “but for” cause of the expenses that the victim incurred.

Area(s) of Law:
  • Remedies

State v. Johnson

Under State v. Turnidge, evidence of prior acts or threats presented to show hostile motive or intent does not need to be similar in type and physical characteristic to the conduct giving rise to the convictions.

Area(s) of Law:
  • Evidence

State v. Kimbrell

When giving jury instructions, a trial court must inform a jury of all matters of law necessary for their information in giving their verdict.

Area(s) of Law:
  • Criminal Procedure

State v. Schindler

By challenging venue under State v. Mills, a defendant is entitled to an evidentiary hearing on venue, not acquittal or dismissal of his charges.

Area(s) of Law:
  • Criminal Procedure

State v. Tena

Evidence of prior assaults may be introduced to show “intent or absence of mistake or accident” and “hostile motive” against the victim.

Area(s) of Law:
  • Evidence

State v. Villagomez

Under ORS 475.900(1)(b)(A), the delivery of controlled substances “for consideration” requires the State to show that a defendant actually received or entered into an agreement to receive some consideration at the time of delivery.

Area(s) of Law:
  • Sentencing

State v. Friddle

A warrant may not authorize a search that is broader than the supporting affidavit supplies probable cause to justify. A warrant can be over broad as to sought after items not supported by probable cause.

Area(s) of Law:
  • Civil Procedure

Cintas Corp. No. 3 v. Art Erickson Tire & Auto, Inc.

Under ORS 36.425, a party has 20 days after issuance of an arbitration judgment to request a jury trial de novo, after which time the party waives the right to request trial de novo.

Area(s) of Law:
  • Alternative Dispute Resolution

Dept. of Human Services v. B.P.

An appeal of one jurisdictional judgment does not invalidate subsequent stand-alone jurisdictional judgments.

Area(s) of Law:
  • Juvenile Law

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

Under ORS 419B.815(7), parents cannot appear through their attorneys when summoned to be present under ORS 419B.815(4) and the court may take jurisdiction despite their lack of presence.

Area(s) of Law:
  • Juvenile Law

Porter and Porter

Under Rudder and Rudder, the relevant factors to determine whether a prenuptial agreement was voluntarily executed include the proximity of the document’s presentation to the time of the wedding; any surprise in its presentation; the presence or absence of legal counsel; inequality of bargaining power; disclosure of assets; understanding of rights waived; and awareness of the intent of the document.

Area(s) of Law:
  • Family Law

Porter v. Board of Parole

Under ORS 144.125 (1991), “if a release date was scheduled and elapsed without the board first having found a valid reason to postpone release, but the inmate was erroneously not released, later events cannot furnish a basis for postponing release; the inmate is entitled to immediate release.”

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

State v. Belle

Under ORS 136.425(1), statements made while under the influence of threats, whether before or after a Miranda warning are not admissible. Simply reading a defendant their Miranda rights may alone not be enough to dispel the coercive effect of a pre-Miranda threat.

Area(s) of Law:
  • Evidence

State v. Krause

State v. Washington established that even if the defendant is removed from the area in which an officer believes that evidence is located, then a warrantless search incident to arrest to discover evidence of the crime of arrest is justified if the driver had control of the car immediately before the arrest and the search followed closely, making the search of the car incident to the driver’s arrest reasonable in time and scope.

Area(s) of Law:
  • Criminal Procedure

State v. Markwell

An object of any shape or size that returns to its original shape after being distorted which (1) “flies open,” and (2) provides resistance when it is being closed can be considered by a reasonable trier of fact to be considered to move into position by force of a spring.

Area(s) of Law:
  • Evidence

State v. Presock

A probationer has the right to discovery only for the evidence used against him.

Area(s) of Law:
  • Evidence

State v. Stout

Under the Oregon Racketeer Influenced and Corrupt Organization Act (ORICO)(ORS 166.715), pleadings for inchoate crimes must meet the specificity requirements for completed crimes set out in ORS 166.720(6).

Area(s) of Law:
  • Criminal Procedure

State v. Teagues

The state must choose a particular occurrence, and not raise two theories, to base a conviction for assault in violation of ORS 163.160(1)(a)

Area(s) of Law:
  • Evidence

State v. Werner

Under 164.125 a person commits the crime of second-degree burglary if the person enters or remains unlawfully in a building with intent to commit a crime therein. However, the mere fact that a crime was committed is an insufficient basis for finding that the entry or remaining was without privilege or authority. The commission of a crime does not convert a lawful entry into an unlawful remaining.

Area(s) of Law:
  • Criminal Law

K.M.J. v. Captain

It is legal error for a trial court to deny cross-examination of an opponent witness.

Area(s) of Law:
  • Civil Procedure

Liu v. Portland State University

The Oregon Court of Appeals has jurisdiction to review a final order of a public university where the university's procedures which are "substantially similar" to those used in contested cases are inconsistent with those required of contested cases under former ORS 351.088 and ORS 183.413 to 183.497.

Area(s) of Law:
  • Administrative Law

Martin v. Lane County

Under ORS 197.825(1), LUBA is vested with exclusive jurisdiction to review land use decisions. Under ORS 197.015(10)(a), a land use decision is defined as a final determination made by a local government that concerns the adoption, amendment or application of the goals, a comprehensive plan, or a land use regulation.

Area(s) of Law:
  • Land Use

State v. Snyder

Under Article I, section 9 of the Oregon Constitution, to satisfy the automobile exception to the warrant requirement during a search involving a drug-detection dog, the State must prove that the dog’s alert was sufficiently reliable to provide probable cause to search the automobile.

Area(s) of Law:
  • Criminal Procedure

State v. Webber

Probable cause exists only if the affidavit sets forth facts that create a nexus between the place to be searched and the objects to be found. State v. Goodman established that facts derived from an officer’s training and experience may contribute the necessary factual nexus in a determination of probable cause, but it does not, in all instances, mean that an officer’s mechanical invocation of training and experience is sufficient to obtain a warrant to search a given location. There must be objective facts derived from other sources.

Area(s) of Law:
  • Criminal Procedure

Thornburgh Resort Co., LLC v. Loyal Land, LLC

Under ORS 36.620(2), the existence of a waiver is a condition precedent to arbitrability. Consequently, ORS 36.620(3) requires that the determination of whether or not the right to arbitrate has been waived be made by an arbitrator, not by the courts.

Area(s) of Law:
  • Arbitration

Village at North Pointe Condo. Assn. v. Bloedel Constr.

Under ORS 20.077 or ORAP 13.05(3) the Court cannot designate the plaintiff as the prevailing party because the plaintiff did not obtain a “substantial modification” of any judgment appealed.

Area(s) of Law:
  • Appellate Procedure

October 44 summaries

Dept. of Human Services v. Z. E. W.

Another state declining to approve an Interstate Compact for the Placement of Children is not a ground for asserting jurisdiction.

Area(s) of Law:
  • Juvenile Law

Husk v. Adelman

Under ORS 109.119(3)(b), the courts do not have the authority to grant rights outside of “visitation or contact rights.” An order to compel a legal parent to provide a non-custodial non-parent timely access to a child’s medical and education records is outside of the scope of ORS 109.119(3)(b)., and consequently, any such order is invalid, and any prior mediated agreement that grants rights outside those found in ORS 109.119(3)(b) is unenforceable by the courts.

Area(s) of Law:
  • Family Law

Purdy v. Deere and Company

Under the standard of Estate of Michelle Schwarz v. Philip Morris, when an instruction is necessary to inform the jury of the parameters that it must apply in considering evidence, an instruction that does not completely and accurately describe those parameters is erroneous and objectionable, even if the omitted portion of those parameters would benefit the opposing party.

Area(s) of Law:
  • Evidence

State v. Bray

The validity of an extension of a traffic stop is based on a totality of circumstances. To be lawful, an extension of a traffic stop to conduct a criminal investigation must be justified by reasonable suspicion of criminal activity.

Area(s) of Law:
  • Criminal Law

State v. Wright

When the State advances competing theories of liability on a defendant’s acts as principal or as an aider-and-abettor, a jury must be instructed that at least 10 jurors must agree that the defendant is liable under one theory or the other.

Area(s) of Law:
  • Criminal Procedure

T.K. v. Stutzman

Under the Family Abuse Protection Act, a petitioner requesting a temporary restraining order must meet each of the following requirements: (1) that petitioner has been the victim of abuse committed by the respondent within 180 days preceding the filing of the petition, (2) that there is an imminent danger of further abuse to the petitioner and (3) that the respondent represents a credible threat to the physical safety of the petitioner.

Area(s) of Law:
  • Family Abuse Prevention Act

Dept. of Human Services v. P. A.

Decisions regarding certification of foster parents and reversals of founded dispositions are department actions subject to challenge under Oregon's Administrative Procedures Act.

Area(s) of Law:
  • Juvenile Law

Kness and Kness

Under ORS 107.137(1), the “best interests” standard requires a court to give weight to the preference of the child’s primary caregiver when determining if a child can move with one parent to a new location.

Area(s) of Law:
  • Family Law

Marlow v. City of Sisters

A landowner’s consent to trespass based on mutual mistake is valid, but a landowner’s consent to trespass based on mistake known by the trespasser or on the misrepresentation of the trespasser is invalid.

Area(s) of Law:
  • Property Law

SAIF v. Williams

The Workers’ Compensation Boards order proving compensability of a “new medical or omitted medical condition” under ORS 656.267 by a claimant may be reversed if the Board comes to its own medical conclusion about causation.

Area(s) of Law:
  • Workers Compensation

Scott v. Liberty Northwest Ins. Corp.

Under 656.26(11) a person is entitled to compensation for temporary total disability, penalties, and attorney fees when “an objectively reasonable insurer” would understand medical reports as releasing an employee from work.

Area(s) of Law:
  • Workers Compensation

Sheldon v. US Bank

In a workers' compensation claim, the claimant is only required to adequately explain why idiopathic factors were not the cause of the injury, not to disprove every other possible cause of the injuries.

Area(s) of Law:
  • Workers Compensation

State v. Bray

Under the Fourteenth Amendment Due Process Clause, Defendant’s right to compel Prosecution to disclose material and exculpatory information does not extend to information in the hands of a private entity. Where Defendant’s Sixth Amendment Confrontation Clause right is in conflict with Victim’s Fourth Amendment right to be free from unreasonable searches and seizures, the court may conduct an in camera review of evidence in order to protect Victim’s privacy.

Area(s) of Law:
  • Criminal Procedure

State v. Breshears

Under ORS 161.067, merger of criminal convictions is controlled by the elements of the crimes as charged, not by particular facts that the State might prove to establish those elements.

Area(s) of Law:
  • Criminal Procedure

State v. Hensley

Under Article I, section 11, of the Oregon Constitution, after a defendant has been charged with a crime and the right to counsel has attached, police are prohibited from questioning that defendant about the charged crime without first notifying his or her lawyer.

Area(s) of Law:
  • Criminal Procedure

State v. Hutchins

Hindering prosecution by harboring or concealing an individual under ORS 162.325(1)(a) is distinct from hindering prosecution by obstructing a person's discovery or apprehension through deception under ORS 162.325(1)(d).

Area(s) of Law:
  • Criminal Law

State v. Musgrave

Plain error review is not appropriate for a trial court’s imposition of attorney fees when the record indicates evidence of a person's source of income, educational background, and prospect of future employment.

Area(s) of Law:
  • Attorney Fees

State v. Norris

Under ORS 137.123(5)(a), imposition of consecutive terms of imprisonment for two counts of Unauthorized Use of a Motor Vehicle is appropriate when the record contains "discrete facts" that support an inference that the defendant was willing to commit more than one criminal offense.

Area(s) of Law:
  • Criminal Procedure

Zsarko v. Angelozzi

Under ORS 138.510(3), absent an appeal, the statute of limitations period for a petition for post-conviction relief is two years, and begins to run "upon entry of a judgment or order of conviction."

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

Bice v. Bd. of Psychological Examiners

An appellate court may review a Board's final order de novo for findings of fact inconsistent with an administrative law judge's proposed order, and may reverse and remand the final order where there is substantial evidence of the truth of those facts.

Area(s) of Law:
  • Administrative Law

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

There must be significant collateral consequences for the court to reverse a jurisdiction judgment in a case that where jurisdiction was later terminated.

Area(s) of Law:
  • Juvenile Law

DiNicola v. Service Employees Int’l Union Local 503

Under ORS 65.224, a non-profit corporation is required to make available to members a list of members’ “names, addresses, and membership dates,” along with the “number of votes each member is entitled to vote at the meeting” if there are classes of members.

Area(s) of Law:
  • Labor Law

Landis v. Liberty Northwest Ins. Corp.

Under ORS 656.245(1)(c)(D), “[t]he primary characteristics of prosthetics are that they take the place of a body part or aide in a natural function . . . [and] unlike a durable medical device, could not be rented are used by successive patients.”

Area(s) of Law:
  • Workers Compensation

Lopez v. SAIF Corp

Under ORS 656.265, there is no requirement that the claimant’s “good cause” explanation needs to be verified by medical evidence. Rather, it is for the board to decide whether it is persuaded by the totality of evidence that is in the record, whether or not that record includes medical evidence.

Area(s) of Law:
  • Workers Compensation

State v. Bradley

Under ORS 138.222(5), when a judge resentences a defendant after a successful appeal, the new sentence may not be vindictive; a new sentence is presumptively vindictive if it is longer than the previous sentence. When a new sentence is not presumptive vindictive, a defendant must affirmatively prove actual vindictiveness.

Area(s) of Law:
  • Sentencing

State v. Bradley

Trial court’s resentencing was vindictive in violation of Defendant’s due process rights where, on remand from a partially successful appeal, trial court changed Defendant’s remaining sentences from concurrent to consecutive sentences.

Area(s) of Law:
  • Sentencing

State v. D.J.

Under ORS 419.626(3)(a), a juvenile court specifically states “why” it ordered a youth's continued out-of-home placement if the findings permit an appellate court to determine, through meaningful review, that the disposition was “necessary.”

Area(s) of Law:
  • Juvenile Law

State v. Delfino

State v. Krause established that when a search incident to arrest is conducted for the purpose of discovering evidence of the crime of arrest, the search comports with Article I, section 9, even if a defendant no longer has control over the area searched, as long as the evidence reasonably could be found in that area and the search is otherwise reasonable in time, scope, and intensity. If the search in this case occurred immediately after the officer developed probable cause for a Defendant’s arrest, and Defendant had exited the van only shortly before that occurred, the search was reasonable in time, scope, and intensity.

Area(s) of Law:
  • Criminal Procedure

State v. Gordon

Under ORS 164.215(1) a person commits the crime of burglary in the second degree if the person enters or remains unlawfully in a building with intent to commit a crime. “Enter and remain unlawfully” means to enter the premises when the premises are not open to the public and when entrant is not licensed or privileged to do so, ORS 164.205(3)(a).

Area(s) of Law:
  • Criminal Law

State v. Nichols

Under ORS 137.101(1) the court is authorized to order the state to share a portion of a penalty fine with a victim of an offense.

Area(s) of Law:
  • Criminal Law

State v. S.J.R.

Under ORS 426.130, to establish that a person is a danger to herself the State must show there is a particularized and highly probable threat to the person’s safe survival, including a risk of substantial harm, in the near future. Similarly, to establish that a person is a danger to others the State must show that future violence is highly likely.

Area(s) of Law:
  • Civil Commitment

State v. S. R. J

Whether evidence of danger is legally sufficient is a matter of law. To commit someone on the basis that a person is dangerous to self, the clear and convincing evidence must show that the threatened harm to self must involve “serious” and “actual” physical harm in the “near term.” Similarly, to permit commitment on the basis that a person is dangerous to others, the state must establish “that actual future violence is highly likely.”

Area(s) of Law:
  • Civil Commitment

State v. Stull

Under the standard set out in State v. Moore, a trial court does not abuse its discretion by denying a party’s request for a continuance to secure the appearance of a witness who is unable or fails to appear at trial unless that party demonstrates that “(1) the witness can be produced; and (2) if produced, the witness would testify about a material fact.”

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

State v. Thomas

The state breaches a plea agreement when the state imposes restitution on a plea agreement that does not mention restitution anywhere in the agreement.

Area(s) of Law:
  • Criminal Procedure

Zybach v. Perryman

Summary judgment granted on the doctrines of issue preclusion and claim preclusion may be upheld if there is no issue of material fact as a matter of law.

Area(s) of Law:
  • Civil Procedure

Ault v. Del Var Properties, LLC

At summary judgment on a premises liability claim, a plaintiff is not required to prove that the injury-causing condition on defendant's property was "unreasonably dangerous."

Area(s) of Law:
  • Tort Law

Big River Construction, Inc. v. City of Tillamook

An expert’s estimate can be of sufficient competence and certainty to base damages on if, from the proximate estimate, a satisfactory conclusion can be reached.

Area(s) of Law:
  • Contract Law

Herinckx v. Sanelle

Under Egelhoff v. Egelhoff, the Employee Retirement Income Security Act (ERISA) preempts any State law that impermissibly connects with ERISA by way of (1) governing a central matter of plan administration, or (2) interfering with nationally uniform plan administration.

Area(s) of Law:
  • Trusts and Estates

State v. Davis

“Dwelling” means a building which regularly or intermittently is occupied by a person lodging therein at night, whether or not a person is actually present. A defendant’s unlawful habitation in a building is insufficient to identify that building as a “dwelling.”

Area(s) of Law:
  • Criminal Law

State v. Donathan

The term “convicted” in ORS 813.010(5) means a finding of guilt by plea or verdict for DUII, even where judgment on the finding was suspended.

Area(s) of Law:
  • Criminal Law

State v. G. A. K.

Under ORS 426.005(1)(f), evidence of past threats and overt attempts to carry them out can constitute clear and convincing evidence that a person is a danger to self or others, but evidence of vague threats without overt acts does not satisfy the evidence standard.

Area(s) of Law:
  • Evidence

State v. Henley

When determining admissibility of expert testimony, the Brown/Key standard applies to qualifying an expert when “the expert’s testimony ‘purported to draw its convincing force from principles of science.’”

Area(s) of Law:
  • Evidence

State v. Holloway

Under ORS 166.720(6), when indicting a defendant on racketeering charges, the State must plead the "acts constituting each incident of racketeering activity."

Area(s) of Law:
  • Criminal Law

State v. Netzler

Under ORS 138.694, “the court shall grant the petition for appointment of counsel if a defendant has complied with ORS 138.964(1) and if it appears to the court that the defendant is financially unable to employ suitable counsel.

Area(s) of Law:
  • Criminal Procedure

November 33 summaries

Dept. of Human Services v. K.C.F.

In order for a court to take jurisdiction over a child, there must be current circumstances that establish a serious and reasonable threat of harm to the child at the time of trial.

Area(s) of Law:
  • Juvenile Law

In re Sanai

Accused lawyer was not denied due process of law in Oregon State Bar Disciplinary Board’s reciprocal disbarment hearing or in the underlying disciplinary hearing in Washington where he was not able to subpoena the authors of numerous judicial orders and opinions admitted to evidence in the disciplinary hearings.

Area(s) of Law:
  • Professional Responsibility

Bull Mountain Meadows, LLC, v. Frontier Communications Northwest, Inc.

Under ORS 174.109, an entity acts as a public body once an agency relationship is established either through expressed or implied agreements.

Area(s) of Law:
  • Property Law

State v. Anderson

Under OEC 403, a judge errs in ruling on a challenge to evidence if the judge (1) fails to exercise discretion, (2) refuses to exercise discretion or (3) fails to make a record which reflects an exercise of discretion.

Area(s) of Law:
  • Evidence

State v. Browning

For the purposes of ORS 163.205(1)(b)(D) (criminal mistreatment in the first degree), the term “take” applies to the exercise of dominion or control over property for one’s own use or the use of a third person, regardless of whether the dominion or control is intended to be temporary or permanent.

Area(s) of Law:
  • Criminal Law

State v. Hall

State v. Reed and Ailes v. Portland Meadows found that when deciding whether to exercise discretion to correct plain error, a court may consider the competing interests of the parties, the ends of justice in a particular case and whether the policies behind the general rule requiring preservation of error have been served in the case in another way.

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

State v. Nicholson

Under ORS 33.015(b) a defendant who acts based on a good faith belief that a judicial order has been dismissed can’t be deemed to have acted “with knowledge that it was forbidden conduct.”

Area(s) of Law:
  • Criminal Law

State v. Wenning

Under ORS 138.060, the State may appeal an order made prior to trial dismissing or setting aside the accusatory instrument, or suppressing the evidence.

Area(s) of Law:
  • Evidence

Eby v. Premo

Under the Sixth Amendment, “a petitioner claim[ing] that his [or her] trial lawyer’s deficient performance caused [them] to forgo a favorable plea must show that, but for counsel’s deficiency, there was a reasonable probability that (1) the petitioner would have pleaded guilty; (2) the plea would have been accepted by the trial court; and (3) the pleas would have resulted in a more favorable disposition of the case.”

Area(s) of Law:
  • Post-Conviction Relief
  • , Article I, Section 11, Oregon Constitution

Oregon v. Codon

Prohibition against vouching evidence does not apply to evidence given for contextual purposes.

Area(s) of Law:
  • Evidence

State v. Berndt

Under ORS 164.215(1), a defendant does not trespass on property he/she otherwise has permission to enter just because his/her activity is outside the general scope of the license to be on the property.

Area(s) of Law:
  • Criminal Law

State v. Criswell

If a trial judge believes that an offender should receive a more severe sentence than the one originally imposed, the judge’s reasoning must appear on the record. Those reasons must be based on identified facts of which the first sentencing judge was unaware, and must not be a product of vindictiveness.

Area(s) of Law:
  • Sentencing

State v. Lacey

The Sixth amendment requires a trial court to delay the trial when a self-represented Defendant’s misconduct causes the court to remove the Defendant from the courtroom. The trial court cannot proceed in the Defendant’s absence unless the trial court has either secured the Defendant’s waiver of his right to representation at trial or taken some course of action that protects the Defendant’s right to representation.

Area(s) of Law:
  • Constitutional Law

State v. Robledo

To increase a defendant’s sentence after appeal, a court must affirmatively state reasons for the longer sentence based on identified facts of which the first sentencing judge was unaware, and the longer sentence cannot be a product of vindictiveness towards the defendant.

Area(s) of Law:
  • Sentencing

State v. S.P.

ORS 426.005(1)(f)(A),(B) requires that in involuntary civil commitment proceedings, the state is required to prove, by clear and convincing evidence, that a person is mentally ill and that, because of the illness, the person is a danger to self, a danger to others, or unable to meet the person’s own basic needs.

Area(s) of Law:
  • Civil Commitment

State v. Silsby

A stipulated sentence is “illustrated in” ORS 135.407 and ORS 138.222(2)(d) will prevent review on appeal.

Area(s) of Law:
  • Appellate Procedure

State v. Waldbillig

It is plain error for a court to fail to instruct a jury on the culpable mental state of the forcible compulsion component of first-degree sodomy and first-degree sexual abuse.

Area(s) of Law:
  • Criminal Procedure

State v. Waldbillig

Failure to give a jury instruction on the culpable mental state for forcible compulsion where required is reversible error.

Area(s) of Law:
  • Criminal Law

Genova v. Veterinary Medical Examining Board

In addition to the substantial evidence requirement for findings, “agencies are also required to demonstrate in their opinions the reasoning that leads the agency from the facts that it has found to the conclusions that it draws from those facts.”

Area(s) of Law:
  • Administrative Law

Handley and Handley

Under ORS 107.135(3)(a), a substantial change in economic circumstances is sufficient to modify the child support order.

Area(s) of Law:
  • Family Law

Ha v. Board of Parole

Under ORS 144.343 (1987), the Board of Parole and Post-Conviction Supervision has the authority, after conducting a parole-revocation hearing and on finding that the parolee violated the terms of his or her release to require that a “parole violator serve the remaining balance of the sentence as provided by law.”

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

J.D. vs. S.K

Under OEC 403, relevant evidence may be excluded if its probative value is substantially outweighed by considerations of undue delay or needless presentation of cumulative evidence.

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

Landis v. Limbaugh

Recreational immunity under ORS 105.682 does not apply to land that is generally available for public use.

Area(s) of Law:
  • Tort Law

Miller v. Columbia County

Probable cause for an arrest defeats any claim of false arrest.

Area(s) of Law:
  • Civil Law

Osuna-Bonilla v. Teacher Standards and Practices Comm.

Under Reguero v. Teacher Standards and Practices, the Administrative Procedures Act allows hearsay evidence to be admissible as any other evidence, so long as it meets the statutory test of reliability under ORS 183.450(1).

Area(s) of Law:
  • Administrative Law

Sloan v. Providence Health System-Oregon

If the jury instructions correctly state the law, a trial court may commit a reversible error by refusing to allow those instructions to be submitted to the jury.

Area(s) of Law:
  • Criminal Procedure

State v. Dawson

Under State v. Dennis, an officer conducting a traffic stop is free to question a motorist about matters unrelated to that stop, but not as an alternative to going forward with the next step in processing the traffic stop.

Area(s) of Law:
  • Criminal Procedure

State v. Dulfu

Expert testimony is scientific when it "possess[es] significantly increase potential to influence the trier of fact as scientific assertions." Scientific evidence must be based on a valid foundation, to be evaluated using the Brown/O'Key factors.

Area(s) of Law:
  • Evidence

State v. Edwards

Under OEC 404(3), if a trial court determines that prior bad acts evidence is relevant to a nonpropensity purpose, “the court, on proper motion, must weigh the probative value of the evidence against its potential to unduly prejudice the defendant, per OEC 403, before admitting the evidence.”

Area(s) of Law:
  • Evidence

State v. Jenkins

Any error in admitting a hearsay statement about the plaintiff’s identity was harmless and the trial court did not err in admitting the officer’s testimony because it contained no verbal or nonverbal hearsay.

Area(s) of Law:
  • Criminal Law

State v. Tate

Under ORS 138.222(5) the defendant should be able to present arguments related to the true life sentence being imposed.

Area(s) of Law:
  • Criminal Law

Kotler and Winnett

Trial court must clarify whether it looked at and rejected Wife’s evidence during marital dissolution or whether the evidence was overlooked.

Area(s) of Law:
  • Family Law

State v. Westcott

An officer may acquire reasonable suspicion by taking into consideration less probative factors only to give context to more significant factors under the totality of the circumstances.

Area(s) of Law:
  • Criminal Procedure

December 29 summaries

McBride v. State Farm Mutual Automobile Ins. Co.

ORS 742.524 states that the PIP claim is presumed to be reasonable and necessary unless the medical provider receives notice of the denial within that 60 calendar day period. Plaintiff’s failure to attend a medical examination required by the insurance policy is a “condition of forfeiture” of rights under that policy.

Area(s) of Law:
  • Insurance Law

State v. Burk

Jury instructions which substantially amend the indictment violate Article VII, section 5, of the Oregon Constitution.

Area(s) of Law:
  • Criminal Procedure

State v. Davis

For the officer-safety exception to apply “(1) the officer’s actions must have occurred during a lawful encounter; (2) the officer must have had a reasonable suspicion that the individual posed an immediate threat of serious physical injury; and (3) the steps the officer took to protect the officer or others must have been reasonable.”

Area(s) of Law:
  • Criminal Procedure

State v. McCright

(1) Under State v. Bates a trial court judge’s decision to maintain restraints on a defendant throughout trial without justification is error. The error is harmless if the proceeding is without a jury, which reduces the likelihood of prejudice, and there is no showing that the use of restraints substantially affects the trial court’s fact finding.

Area(s) of Law:
  • Criminal Procedure

State v. Mendoza

ORS 138.692 and ORS 138.694, regarding DNA testing and appointment of counsel, require supporting affidavits to prove the motion.

Area(s) of Law:
  • Appellate Procedure

State v. Sercus

Under ORS 135.335, a misdemeanor conviction and restitution order is appealable only with a "colorable showing that the disposition exceeds the maximum allowable by law."

Area(s) of Law:
  • Appellate Procedure

State v. Walraven

State challenge to Defendant’s conditional release following a second-look hearing was rendered moot when Defendant’s underlying aggravated murder conviction was vacated.

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

Watts v. Board of Nursing

Under OAR 137-003-0580(9), no express “penalty of perjury” clause is required for an affidavit to be valid.

Area(s) of Law:
  • Administrative Law

Manley v. City of Coburg

Under ORCP 47, a party is entitled to summary judgment if the pleadings, deposition, affidavits, declarations, and admissions on file show that there is no genuine issue as to any material fact and the moving party is entitled to prevail as a matter of law.

Area(s) of Law:
  • Civil Procedure

Migis v. AutoZone, Inc.

To impose civil penalties under ORS 652.150, the finder of fact must make a finding that the failure to pay wages was willful. Preservation of arguments is determined by general principles of preservation rather than the requirements of ORCP 59H.

Area(s) of Law:
  • Remedies

Norberg and Norberg

Under ORS 107.105(1)(d)(C), a trial court may consider the following factors to determine the amount and duration of a support award: (1) the duration of the marriage; (2) the ages of the parties; (3) the physical and emotional health of the parties; (4) the standard of living established during the marriage; (5) the parties’ relative incomes and earning capacities; (6) the parties’ training and employment skills, and work experience; (7) their financial resources and needs; and (8) the tax consequences of an award.

Area(s) of Law:
  • Family Law

State v. Dugan

Under ORS 161.067(3), merger of guilty verdicts is required for crimes that are (1) committed in a single criminal episode, (2) violate only one statutory provision, (3) involve only one victim, and (4) are not separated by sufficient pause to afford the defendant an opportunity to renounce his criminal intent.

Area(s) of Law:
  • Criminal Law

State v. K.J.B.

Under State v. Parkins, in close cases, whether an issue has been sufficiently preserved for appeal turns on whether the policies behind the rule, “e.g., procedural fairness to the parties and the trial court, judicial economy, and full development of the record,” have been sufficiently served.

Area(s) of Law:
  • Evidence

State v. Scott

If a defendant fails to make an argument at the trial court that they are now making on appeal, the appellate court can decline to review that argument on the basis that is not preserved.

Area(s) of Law:
  • Evidence

State v. Stewart

ORS 475.900(2)(a) applies when a defendant commits unlawful delivery with the purpose of obtaining something of value in return, even if the defendant has not yet received payment or a promise of payment at the time he commits the delivery.

Area(s) of Law:
  • Criminal Procedure

State v Rogers

A party that invites an error may not obtain a reversal on appeal based on that error.

Area(s) of Law:
  • Appellate Procedure

Willamette Landing Apartments v. Burnett

Under ORS 91.090, acceptance of a post-judgment value for use and occupation of premises because of a court-ordered stay during appeal does not operate to reinstate a lease.

Area(s) of Law:
  • Landlord Tenant

Bredberg v. Verble

Trial courts may not dismiss a case for want of prosecution when the case has been actively litigated and is proceeding through the stages of litigation, even if the process is occurring slowly.

Area(s) of Law:
  • Civil Procedure

Dept. of Human Service v. A. W. I.

Under ORS 109.070(5)(f), a Voluntary Acknowledgment of Paternity (VAP) “shall” be set aside “if the court finds by a preponderance of the evidence that the acknowledgment was signed because of fraud, duress or material mistake of fact . . . unless, giving consideration to the interests of the parties and the child, the court finds that setting aside the acknowledgment would be substantially inequitable.”

Area(s) of Law:
  • Family Law

Grimstad v. Knudsen

Plaintiff may prove an unjust enrichment claim without showing that Plaintiff conferred a benefit on Defendant, but instead by showing that Defendant received a benefit from a third party.

Area(s) of Law:
  • Trusts and Estates

Reynolds v. USF Reddaway, Inc.

The “law of the case” doctrine applies to previous appellate court rulings and not trial court or administrative rulings.

Area(s) of Law:
  • Workers Compensation

Rowlett v. Fagan

Forensic accountants may present evidence of business valuation when their methods are confined to their expertise.

Area(s) of Law:
  • Evidence

State v. Bond

When an indictment alleges the “attempts to use unlawfully against another” variant of unlawful use of a weapon (UUW), and not the alternative and disjunctive “or carries or possesses with intent to use unlawfully against another” variant of that offense, failure to merge a count of UUW with a count of first or second-degree assault constitutes plain error.

Area(s) of Law:
  • Criminal Law

State v. Dickas

Under ORS 810.441(2), authorizes ODOT to contract with a state agency, to "operate photo radar within the highway work zone . . . located on a state highway."

Area(s) of Law:
  • Traffic Infractions

State v. Herrington

An error is subject to review, regardless of whether it was preserved, if it is a plain error; an error is not plain if it is necessary to choose between competing inferences to find it. When the record does not contain a written jury waiver, competing inferences do not exist.

Area(s) of Law:
  • Criminal Procedure

State v. Griswold

A compensatory fine requires that the victim must have a remedy by a civil action for the injuries he suffered as a result of defendant’s crime and that punitive damages have not been previously decided in a civil case arising out of the same act and transaction.

Area(s) of Law:
  • Remedies

Dept. of Human Services v. S.S.

Under ORS 419B.498(2)(b), supporting a continued relationship with parents can, under some circumstances, constitute a compelling reason to determine that filing a petition to terminate parental rights would not be in the best interests of a child.

Area(s) of Law:
  • Family Law

State v. Herfurth

Restitution statutes establish that a trial court is required to order a defendant to pay a victim restitution for the full amount of the victim’s economic damages, unless the victim consents to a lesser amount.

Area(s) of Law:
  • Remedies

State v. Valdez

Under ORS 151.505(3) and ORS 161.665(4), a court may not order a defendant to pay court-appointed attorney fees unless the defendant “is or may be able” to pay them.

Area(s) of Law:
  • Attorney Fees