Willamette Law Online

Oregon Court of Appeals

( 42 summaries )

Opinions Filed in May 2013

State of Oregon v. Jeffery Dean Beagley

Criminal Law: A parent has an absolute duty to provide medical care to a child, and that once a reasonable person should know that there is a substantial risk that a child will die without medical care, the parent must provide that care, or allow it to be provided.

(Filing Date: 06-19-2013)

Rivas v. Persson

Post-Conviction Relief: Credit for time served has no bearing on when an inmate will be released after the release date has passed. Instead, the ultimate release date is determined exclusively through the parole consideration process.

(Filing Date: 05-30-2013)

Rivers v. SAIF

Workers Compensation: The wage earning agreement between a worker and his or her employer may be a general agreement reflecting the payment aspect of the parties employment relationship, even if that agreement contemplates that the employee will be assigned to various jobs that will involve differing pay rates and hours.

(Filing Date: 05-30-2013)

State v. Brown

Evidence: Diagnosis of a victim as sexually abused or “highly concerning for sexual abuse” requires physical evidence to support it in order to be admitted into evidence since such a diagnosis has more than a little likelihood to affect a jury’s verdict.

(Filing Date: 05-30-2013)

State v. Coronado

Appellate Procedure: The Court follows a two-step process in deciding to review alleged plain error. First, if the error is unpreserved, it must be one of law, apparent or not reasonably in dispute, and appear on the face of the record. Second, the Court considers factors to decide if the error should be reviewed.

(Filing Date: 05-30-2013)

State v. Cruz-Gonzalez

Criminal Law: Driving away after damaging property, even for two minutes, completes the crime of failure to perform the duties of a driver when property is damaged, and a jury instruction on attempt is not warranted.

(Filing Date: 05-30-2013)

State v. Kingsmith

Criminal Procedure: Incriminating evidence obtained against a particular defendant during a traffic stop should be suppressed if the officer's reasonable suspicion of criminal activity was not based on actions or characteristics of that defendant.

(Filing Date: 05-30-2013)

State v. Meza-Garcia

Criminal Procedure: When an officer asks for consent to search following an illegal stop, evidence resulting from the search can be found admissible if the consent is "sufficiently attenuated" from the initial illegal stop.

(Filing Date: 05-30-2013)

State v. Stubbs

Evidence: Under ORCP 59 E, a jury is allowed to consider all evidence present on the record and a trial court is not allowed to instruct the jury as to matters of fact or comment on the evidence.

(Filing Date: 05-30-2013)

Two Two v. Fujitec

Tort Law: An affidavit outlining elements on which an expert will testify that lacks indication that the expert will testify as to causation, absent other supporting evidence, is not sufficient to establish an issue of material fact.

(Filing Date: 05-30-2013)

Estacada Rural Fire Dist. #69 v. Hull

Employment Law: When a physical disorder is caused by a stress-related mental disorder, the firefighters’ presumption does not apply. Stress-related physical disorders are not compensable under workers compensation claims unless heightened standards are met.

(Filing Date: 05-22-2013)

McMurchie and McMurchie

Family Law: When determining a parent's presumed income, for the purposes of determining a child support obligation, a court may consider the parent's actual income or potential income, but not both.

(Filing Date: 05-22-2013)

State v. Ashbaugh

Criminal Law: For the purposes of ORS 162.155, an escapee enters into the constructive custody of authorities upon verbal notice of a warrant for his arrest and the intent of authorities to place him under arrest.

(Filing Date: 05-22-2013)

State v. Milnes

Criminal Procedure: In order to issue the witness-false-in-part jury instruction a witness must clearly have consciously testified falsely.

(Filing Date: 05-22-2013)

State v. Ross

Criminal Procedure: For a passenger to be seized during a traffic stop, the officer must use physical force or a show of authority directed at the defendant, specifically.

(Filing Date: 05-22-2013)

Walker v. State

Post-Conviction Relief: The requirements of preservation do not apply when a party has no practical opportunity to object to the purported error before entry of judgment. Plain error is therefore inapposite.

(Filing Date: 05-22-2013)

Bell v. Tri-Met

Civil Procedure: The two year statute of limitations on a tort action against a public body contained in ORS 30.275(9) supersedes the three year limitation on a survival action for personal injuries by a personal representative contained in ORS 30.075(1).

(Filing Date: 05-16-2013)

Balcom v. Knowledge Learning Enterprises

Workers Compensation: Pursuant to ORCP 5.45(1), for consideration on judicial review an argument must be preserved in the lower court proceedings. To properly preserve an argument for consideration upon judicial review a party must provide the trial court with a specific explanation of her objection so as to ensure that the trial court can clearly identify the alleged error.

(Filing Date: 05-15-2013)

Campbell v. Employment Department

Employment Law: An order by the EAB will be upheld if it is supported by substantial evidence and reason.

(Filing Date: 05-15-2013)

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

Juvenile Law: Under ORS 419B.923(1)(a), a juvenile court has the authority to issue a “corrected permanency judgment” if the correction is for an oversight or omission. In addition, the court has authority to correct the judgement at any time.

(Filing Date: 05-15-2013)

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

Juvenile Law: A juvenile court may not continue wardship over a child or change the permanency plan for the child from reunification to adoption based on conditions or circumstances that are not explicitly stated or fairly implied by the jurisdictional judgment.

(Filing Date: 05-15-2013)

Doyle v. City of Medford

Municipal Law: ORS 243.303(2) does not create a private right of action for damages.

(Filing Date: 05-15-2013)

Kaptur and Kaptur

Appellate Procedure: An issue may be considered on appeal as long as the appealing party raised the issue below with enough particularity to assure that the trial court can identify its alleged error and correct the error if it is warranted

(Filing Date: 05-15-2013)

Marton v. Ater Construction Co., LLC

Civil Procedure: A party who enters into a settlement with a claimant is not entitled to recover contribution or indemnity from a third-party whose liability is not extinguished by the settlement.

(Filing Date: 05-15-2013)

PacifiCorp v. SimplexGrinnell

Attorney Fees: ORS 20.096 does not create a reciprocal right to recover attorney fees when an indemnification agreement in the contract does not allow one party to recover attorney fees from the other.

(Filing Date: 05-15-2013)

Paton v. American Family Mutual Ins. Co

Insurance Law: An insurance company's express consent to the arbitration process suffices to "formally institute" arbitration proceedings under ORS 742.504(12)(a)(B).

(Filing Date: 05-15-2013)

Schutz v. La Costita III, Inc.

Criminal Procedure: ORS 471.565(1) bars all claims against licensed server(s) of alcohol that are brought by a patron who voluntarily consumes the alcohol served.

(Filing Date: 05-15-2013)

State of Oregon v. Marvin Opitz

Criminal Law: For a conviction of kidnapping the first degree, the defendant must move the victim to a "qualitatively different" location.

(Filing Date: 05-15-2013)

State v. Cossette

Appellate Procedure: Under State v. Baty, an argument is not preserved for appellate review if the argument substantially differs from the argument advanced at the trial court.

(Filing Date: 05-15-2013)

State v. Danby

Criminal Law: DUII convictions under "former" ORS 487.540 can serve as predicate convictions for satisfying ORS 809.235.

(Filing Date: 05-15-2013)

State v. M.L.R.

Civil Commitment: Failure to advise an allegedly mentally ill person of their rights under ORS 426.100(1) regarding a commitment hearing constitutes plain error requiring reversal.

(Filing Date: 05-15-2013)

State v. Mccallum

Sentencing: Post-prison supervision, when added to the prison term, may not exceed the statutory maximum indeterminate sentence for the crime of defendant's conviction.

(Filing Date: 05-15-2013)

State v. Oneill

Criminal Law: Under ORS 161.200, a defendant’s perception of a threat must be reasonable as gauged by an objective reasonable person standard, rather than a subjective, defendant-specific standard.

(Filing Date: 05-15-2013)

Stewart and Stewart

Family Law: A parent's incarceration does not require that visitation rights be denied. Each case must be decided on the merits, not on a general policy disallowing children to visit parents while incarcerated.

(Filing Date: 05-15-2013)

N.J.R. v. Kore

Family Abuse Prevention Act: The Court of Appeals lacks jurisdiction to hear an appeal of a dismissal of a FAPA violation when no substantial right has been affected. An SPO may only be given if requested as a remedy in civil action, or when a person complains to a law enforcement officer and that officer gives a citation with specific notice, not sua sponte.

(Filing Date: 05-08-2013)

State v. Haney

Criminal Law: Under ORS 161.067(2), two owners, are treated as a single owner, for the purposes of determining the number of separately punishable offenses, when they own joint interests in a vehicle.

(Filing Date: 05-08-2013)

State v. Monro

Sentencing: The "shift-to-column-I" rule is subject to Measure 11 when a Measure 11 sentence is imposed consecutively with another offense. Where a sentencing conflict between "shift-to-column-I" and Measure 11 exists, the sentence shall be the greater of the two prescribed regimes.

(Filing Date: 05-08-2013)

State v. Palomo

Criminal Law: A person will be convicted of prostitution under ORS 167.007 when sexual conduct is exchanged for something of economic value and the transaction is commercial in character.

(Filing Date: 05-08-2013)

Davenport v. Premo

Standing: An appeal is moot when an inmate seeks habeas corpus relief, is subsequently transferred to a correctional facility out of state, and cannot demonstrate that the appeal would have a practical effect on his rights.

(Filing Date: 05-01-2013)

State v. Ofodrinwa

Criminal Law: Pursuant to ORS 163.425, a person commits the crime of second-degree sexual abuse when "that person subjects another person to sexual intercourse and the victim does not consent thereto." The phrase "does not consent" refers to the victim's lack of capacity to consent due to age, as well as to the lack of actual consent.

(Filing Date: 04-25-2013)

Wah Chang v. PUC

Administrative Law: Administrative agency retains broad authority under ORS 757.230 in determining the formula for ratemaking based upon the effect of special contracts on private customers and may rely upon investigative reports and filings by agency staff in so doing.

(Filing Date: 04-17-2013)

State v. Hemenway

Civil Procedure: When considering equitable factors to determine whether a vacatur is an appropriate remedy, the factor that a party caused the mootness by their own involuntary action, such as death during an appeal, should weigh in favor of vacatur.

(Filing Date: 02-04-2013)