Willamette Law Online

Oregon Court of Appeals

( 40 summaries )

Opinions Filed in July 2012

California Casualty Indemnity Exchange v. Federated Mutual Ins. Co.

Insurance Law: Under ORS 742.534, the legislature's intent was to provide a mandatory arbitration remedy in regards to legal liability and the amount of PIP reimbursement, and therefore these two issues may not be litigated.

(Filing Date: 07-25-2012)

Clackamas Grocery Outlet Warehouse v. OLCC

Administrative Law: A retail location which sells alcoholic beverages for off-premises consumption may only store those items that it intends to sell at the same location.

(Filing Date: 07-25-2012)

Dawson v. Employment Dept.

Employment Law: Employment benefits were rightfully denied when claimant was wantonly negligent, indifferent to consequences, and should have been aware that his decision to drive under the influence of intoxicants would violate an employer's expectations of an employee.

(Filing Date: 07-25-2012)

Department of Human Services v. T.C.A.

Family Law: Overturning a termination of parental rights does not, by implication, mean that DHS must pursue re-unification of parent and child.

(Filing Date: 07-25-2012)

Dept. of Human Services v. M. R.

Civil Procedure: The denial of a motion to unseal records by the trial court is not an error when the records were never sealed to begin with.

(Filing Date: 07-25-2012)

Fay and Fay

Family Law: Without a showing of evidence, the division of property is at the discretion of the trial court. Under ORCP 68 C(4)(b) and ORCP 10, 3 days shall be added to the objection period if the notice is served by mail. Thus, an objection being served by mail is allotted 17 days rather than 14.

(Filing Date: 07-25-2012)

Murphy v. All-State

Civil Procedure: The question of whether a claim for fraud against an insurance company is time barred pursuant to ORS 12.110(1), or whether the plaintiff justifiably relied on the statements, or whether there was a special relationship, is a fact intensive inquiry that ought to be made by a jury.

(Filing Date: 07-25-2012)

State v. Doser

Criminal Procedure: When determining whether a defendant invoked his right to remain silent, courts must view the statement using a totality of the circumstances test from a reasonable officer's perspective.

(Filing Date: 07-25-2012)

State v. Kolb

Criminal Procedure: An officers suspicion that a suspect is under the influence of drugs, and that the suspect is in possession of the instrumentalities necessary to ingest the drugs does not by itself, provide the officer with reasonable suspicion to stop the suspect.

(Filing Date: 07-25-2012)

State v. McDaniel

Criminal Law: Under ORS 161,055(1) the defense of entrapment has two elements that the state must disprove beyond a reasonable doubt: that the defendant did not intend to perform the proscribed conduct, and that the defendant would not have otherwise engaged in the proscribed conduct.

(Filing Date: 07-25-2012)

State v. Oneill

Criminal Procedure: Under the community caretaking exception to the warrant requirement, police may impound vehicles that impede traffic, jeopardize public safety, and are subject to vandalism or theft.

(Filing Date: 07-25-2012)

State v. Toland

Criminal Law: A trial court may not preclude a presented defense when the defendant offers evidence to support that defense.

(Filing Date: 07-25-2012)

State v. Vanlieu

Criminal Procedure: When a trial court fails to use its statutory discretion to extend a probationary period, it cannot revoke probation based on conduct which occurred after the original probationary period was set to expire.

(Filing Date: 07-25-2012)

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

Juvenile Law: A juvenile court may have abused its discretion in terminating parental rights when the parent has missed a hearing due to an excusable mistake and has shown a good faith effort to appear.

(Filing Date: 07-18-2012)

Niday v. GMAC Mortgage, LLC

Property Law: The beneficiary of a trust deed is the party to whom the obligation is owed. Under ORS 86.735 any assignment of a beneficial interest in a trust deed must be recorded in the county mortgage records.

(Filing Date: 07-18-2012)

State v. Birchard

Criminal Procedure: A trial court commits plain error when it refuses to merge two guilty verdicts for resisting arrest from a single offense into a single conviction based on the efforts of two officers.

(Filing Date: 07-18-2012)

State v. Graham

Criminal Law: A release agreement is sufficient evidence to prove knowledge of all trial and required court appearances. Also, when a defendant files a motion for judgment of acquittal due to insufficient evidence he must state the specific theory on which the proof is insufficient.

(Filing Date: 07-18-2012)

State v. Harper

Criminal Law: To be reviewable, any challenge to a jury instruction must be preserved at trial. When there is a single victim for the two events, convictions for stealing property and then selling that property must be merged as a single conviction.

(Filing Date: 07-18-2012)

State v. Hites-Clabaugh

Evidence: First, timeliness of one’s disclosure of the need to elicit testimony from an expert witness about particular subject matter is different from timeliness of one’s intention to call an expert witness. The latter must comply with ORS 135.865. Second, ORS 418.747(1),(3), and (4) indicate that “all law enforcement personnel in a county shall conduct child abuse investigations pursuant to the protocols developed by the county’s multidisciplinary team.” Third, expert testimony about child sexual abuse that a layperson usually is unfamiliar with is admissible.

(Filing Date: 07-18-2012)

State v. McCarthy

Evidence: A witness, expert or otherwise, may not give an opinion on the credibility of another witness, or whether he believes a witness is telling the truth. The assessment of credibility is for the trier of fact only.

(Filing Date: 07-18-2012)

State v. O'Hara

Criminal Law: To satisfy the element of forcible compulsion, the trier of fact may consider circumstances known to the defendant that relate to whether the victim was in fact compelled.

(Filing Date: 07-18-2012)

Evergreen Pacific, Inc. v. Cedar Brook Way, LLC

Property Law: A contractor forfeits his right to a construction lien when a contractor secures the debt through a mortgage or trust deed.

(Filing Date: 07-11-2012)

Poppa v. Laird

Appellate Procedure: The appellant is required to provide the appellate court with a sufficient appellate record to decide the issues on appeal. The appellate court will not decide issues that were not preserved as an error in the court below.

(Filing Date: 07-11-2012)

S.M.H. v. Gerald Wayne Anderson

Family Abuse Prevention Act: Isolated contact without overt threats or an effort to be present in the same state as a petitioner is not sufficient to qualify as an immanent or credible threat to the physical safety of a person.

(Filing Date: 07-11-2012)

Sjomeling v. Lasser

Appellate Procedure: Under ORS 19.415(3), unless the Court of Appeals uses its discretion in reviewing an equitable matter de novo, the standard of review for a trial court's determination regarding the best interests of a child is abuse of discretion.

(Filing Date: 07-11-2012)

State v. Bertsch

Evidence: A person's proximity to criminal activity does not give rise to a reasonable suspicion that the person is involved in the criminal activity. Also, evidence collected during an unlawfully extended traffic stop, even after consent from the vehicle's owner, should be suppressed.

(Filing Date: 07-11-2012)

State v. Gonzales-Sanchez

Criminal Procedure: A six-year delay in prosecuting a DUII charge did not violate the defendant's right to a speedy trial because the delay was primarily caused by the defendant by failing to fulfill his obligations under the diversion agreement he entered into with the court.

(Filing Date: 07-11-2012)

State v. Goodenow

Sentencing: Pursuant to ORS 131.550 and ORS 131.604, a court's order that a defendant forfeit the entirety of her lottery ticket winnings, which were acquired in a fraudulent manner, does not constitute a violation of the Excessive Fines Clause of the 8th Amendment.

(Filing Date: 07-11-2012)

State v. Morfin-Estrada

Criminal Law: Reasonable suspicion must be based on the totality of the circumstances, and includes an officer’s subjective belief that a person is or was committing a crime, and that the belief is objectively reasonable.

(Filing Date: 07-11-2012)

State v. Morgan

Evidence: In a DUII case involving a prescribed dose of medication, defense counsel may impeach the officer under OEC 706 as to the authority of the NHTSA manual which says that FSTs are not reliable to assess the impairment of someone who has taken that medication.

(Filing Date: 07-11-2012)

State v. Worthington

Criminal Law: Under ORS 163.200(1)(a), the material part of the charge is the failure to provide necessary and adequate medical care, not whether the actions led to death or another result. For a motion in arrest of judgment, the grounds for a challenge must be based on the face of the accusatory instrument without any inclusion of extrinsic facts.

(Filing Date: 07-11-2012)

Brown v. City of Medford

Constitutional Law: Under the doctrine of unconstitutional conditions, the government need only impose an unconstitutional condition rather than actual invasion of the property, for the government to have violated a person's constitutional rights. A nexus exists when "the exaction substantially advances the same interests that the city authorities asserted would allow them to deny the permit altogether."

(Filing Date: 07-05-2012)

Dept. of Human Services v. L. G.

Juvenile Law: A juvenile court only has jurisdiction over a child as long as the bases for the jurisdiction are currently present.

(Filing Date: 07-05-2012)

Dept. of Human Services v. T.R.

Juvenile Law: Changing a permanency plan from reunification to adoption requires a showing that a parent has not made sufficient progress in spite of DHS's reasonable efforts to provide the child a safe home.

(Filing Date: 07-05-2012)

State v. Edwards

Criminal Procedure: ORS 164.415(1) and its three subsections (a)-(c) are alternative theories that define a single crime. Therefore, it is improper to charge a person with multiple counts stemming from a single incident that simultaneously satisfy multiple subsections of ORS 164.415(1).

(Filing Date: 07-05-2012)

State v. Fauce

Constitutional Law: A due process violation exists when the state fails to preserve evidence that is known to be favorable to the defendant and hard for the defendant to produce otherwise. However, if the evidence is only known to be “potentially useful” and it is speculative whether the evidence is favorable, a defendant bears the burden to prove that the state’s failure to preserve such evidence was in bad faith.

(Filing Date: 07-05-2012)

State v. Hauskins

Appellate Procedure: Under ORS 136.425, a confession without corroboration is insufficient to warrant a conviction. Secondly, the imposition of a punitive sanction for contempt is analogous enough to a criminal conviction that it carries a similar collateral consequence of stigma that will not be rendered moot because the sentenced incarceration was completed.

(Filing Date: 07-05-2012)

State v. Petersen

Criminal Procedure: UTCR 4.010 requires that all pretrial motions that are subject to an omnibus hearing be filed at least 21 days before trial.

(Filing Date: 07-05-2012)

State v. Spainhower

Criminal Procedure: ORS 33.096 requires a court to impose sanctions for contempt at or before the defendant’s trial in which the contempt was held unless there is an overriding interest for delay.

(Filing Date: 07-05-2012)

State v. Wan

Criminal Law: Officers that viewed a woman crying in the fetal position, inside of an apartment, after an argument, had sufficient evidence for the application of the emergency aid exception to the warrant requirement. A jury instruction, regarding the right to self-defense during an arrest involving unlawful force may be utilized, when the defendant believed that the force being used exceeded the force reasonably necessary to make the arrest.

(Filing Date: 07-05-2012)