Statu Brevia Episode 33 Blog and Podcast review of the Oregon Supreme Court  and Oregon Court of Appeals decisions.

Court of Appeals

State of Oregon v. Ivan Cam

Appeal from denial of motion to suppress, commercial drug offense classification and merger issues. Court found presence of gate and private property signs were not enough, maybe a no trespassing sign? Any of the drugs listed in the statute of sufficient quantity qualify for commercial drug offenses. They reversed and remanded for merger of the theft charges – 2 charges each for 4 victims should be 4 charges total.

State of Oregon v. Jason Lee Aitken

Defendant appeals after multiple convictions and seeks merger of second degree and first degree assault. Court found defendant had substantial opportunity to stop and renounce criminal intent between incidents.

State of Oregon v. Troy James Molette

Defendant appeals from presumptive life sentence w/o possibility of release or parole following conviction of second degree sexual assault. He argues failure to prove two prior sentences for felony sex crimes for unadjudicated crimes that resulted in probation. The Court found the arguments were not preserved.

State of Oregon v. Melissa Louise Stephens

Appeal by an elementary school teacher convicted of sex crimes against a student for evidentiary errors. The trial court allowed the prosecutor to comment on a witness’ discussion with her attorney and subsequent refusal to speak with state investigators. Evidence was offered to show bias. The Court found there was no waiver of attorney client privilege and the evidence was relevant for the non character purpose of showing existence of a long term relationship and delay in victim reporting.

Troy Cavitt v. Rick Coursey

Another post conviction relief case where the court dismissed for failure to attach affidavits of support, state concedes trial court error in dismissal, the Court agrees.

Department of Human Resources v. N.P.

Father appeals jurisdiction of juvenile court over son. The juvenile court based its jurisdiction on “anger and frustration” and use of controlled substances. The Court found the substance abuse had been ameliorated by completion of treatment, reversed and remanded.

Frank Gearhart v. Public Utility Commission of Oregon

Gary B. Cron v. Shawnita Zimmer

State of Oregon v. Brandon Rex Roberts

State appeals expungement of

Stephen v. Topaz v. Oregon Board of Examiners for Engineering and Land Surveying

Keri Deberry v. Steven R. Summers

Statu Brevia Episode 32 Blog and Podcast review of the Oregon Supreme Court  and Oregon Court of Appeals decisions.

Oregon Court of Appeals

Jacquelin Garner v. Marci Rae Taylor

Child custody case where one partner got pregnant while in the relationship. Adoption was considered but never occurred. Petitioner got a court order for visitation rights but Respondent was not cooperative. Petitioner sought to modify the order for full custody or extended visits and to have respondent held in contempt. The petitioner appealed after everything was denied by the Court, as the correct law was not applied when she was granted visitation. The Court of Appeals found that the trial court abused its discretion in setting aside the default judgment in the absence of extraordinary circumstances but its analysis was correct and otherwise affirmed.

State of Oregon v. Thad Nelson

Appeal from dismissal from appeal, from Municipal court to Circuit Court for an interferring with a peace officer charge. The defendant failed to appear in Circuit court, that’s why it dismissed his appeal. The Court of Appeals held that the defendant does not have a basis for appeal.

Jeffrey Ross v. Steve Franke

Appeal from denial of post conviction relief because petitioner failed to attach any supporting documentations for allegations in petition. Affirmed, he didn’t attach anything.

Suzanne G. Franklin v. Employment Department

Appeal from an Employment Appeals Board decision that she was discharged for misconduct connected to work. Petitioner was fired for not maintaining her nursing license after it was suspended following discipline for “failure to maintain” her license. The EAB found the medication error was not misconduct but losing her license was. The Court of Appeals held that she had no control over the suspension of her license and therefore she cannot be held accountable for “failure to maintain” it. Reversed and remanded.

Keith Kendon Ogle, Sr. v. Mark Nooth

Post conviction relief appeal where case was dismissed for failure to attach documentation. The Court of Appeals found the attached documentation did support the petitioners assertions, reversed and remanded.

Joy M. Walker v. Providence Health System Oregon

Appeal from a Workers’ Compensation Board order denying attorney fees for employer’s de facto refusal to close the claim. In 3/09 claimant requested closure but the employer denied and sent notice requesting independent evaluation. In 9/09 claimant had her own doctor perform a closing examination and she requested a claim based on that report. The employer failed to close within 10 days and conceded that was de facto failure to close. In 11/09 employer issued closure denying disability. Claimant requested reexamination by the Appellate review unit of the Workers’ Compensation Division and they awarded 35% permanent disability. The Board then refused attorney fees because it found that the employer had not acted unreasonably because it had legitimate doubt as to benefits due at that point. Further the Board found that the basis for award was 25% of compensation then due and in 11/09, the time of failure to close, no compensation was due. The Court of appeals found that 25% of the compensation entitled to claimant the proper penalty, not the amount due at the time of refusal to close the claim. Further, the statute is unambiguous, the employer is obligated to close the claim in 10 days from receiving the claimants request for closure once benefits have been suspended. Reversed and remanded.

Wood Park Terrace Apartments Limited Partnership v. Tri-Vest LLC

State of Oregon v. Michael Wayne Wesley Jr.

State or Oregon v. AJC

Alfonso Campbell v. State of Oregon

Daniel g. Uhl v. Stanley W. Krupsky

State of Oregon v. Adam Corey Williams

Episode 31 Statu Brevia Podcast and Show Notes

Statu Brevia Oregon Supreme Court and Oregon Court of Appeals weekly Podcast review Show Notes.

Please Scroll down to the bottom and press the play button to listen to the show on the web.

Oregon Supreme Court

Association of Oregon Corrections Employees v. State of Oregon Department of Corrections

Review from Court of Appeals reversing Employment Relations Board decision. The AOCE (Union) filed a complaint with the ERB for unfair labor practices because the DOC refused to bargain a change in schedule. The DOC argued that they had the right to unilaterally change scheduling because of a line in the Collective Bargaining Agreement that stated the DOC “retains the right to direct the work of its employees, including but not limited to, the right…to schedule work.” The ERB decided in favor of the Union but the CoA reversed. The applicable Oregon law is modeled on the NLRB Act and the analysis of the CBA should follow the NLRB’s waiver rubric. Additionally, as a contract, rights waived under the CBA must clearly indicate an intention to renounce a known privilege of power. The language cited is not a clear and unmistakable waiver of the Union’s rights to bargain schedule changes. CoA reversed and remanded for determination of waiver based on omission, the Union needed to demand to bargain within 14 days.

Mike Morgan v. Sisters School District

A citizen sought declaratory and injunctive relief at the circuit court at the circuit court where they decided he did not have standing. The CoA affirmed. Mr. Morgan wanted to challenge a school district financing mechanism of “certificates of participation” arguing they were bonds that had not been voted on. The courts determined they were not bonds both courts determined that his damages were too speculative to support standing. The Court agrees and affirms, they analyzed the matter under their 3 part analysis. He failed to bring a claim based on his right to vote and his damages as a taxpayer is too speculative, they MAY need a bond to repay this.

Oregon Court of Appeals

State of Oregon v. Jeffrey David Miller

Appeal from a denial on motion to suppress and self representation for a number of drug related charges. The court summarily decided that it would be in his best interest to maintain counsel. On the warrant he argued that the affidavit of support for the warrant only covered his vehicle, not his home. The Court reversed and remanded, an omnibus hearing is required for self representation and the Court found that the affidavit of support did not cover his residence.

State of Oregon v. Jose Maciel

Appeal from a denial of a motion to suppress for evidence obtained during an illegal stop. He was a passenger in a lawfully stopped vehicle when he was illegally detained and his vehicle was seized. The Court reversed and remanded for lack of probable cause. While the police may have had probable cause that the vehicle was stolen, that probable cause did not justify an extension of the stop to investigate drug trafficking.

Scott Richard Walker v. Driver and Motor Vehicle Services Division (DMV)

The DMV appeals setting aside a drivers license suspension by the circuit court. The defendant requested and was granted a DMV hearing. The Police requested a rescheduling due to officer exhaustion. The defendant sought circuit court review, where they set aside the suspension order. The Court reversed the circuit court decision because the relevant statute allows for rescheduling when the officer is exhausted if it were to affect his ability to drive to the hearing.

Bradley Christopher Holbrook v. Sharon Blacketter

Appeal from exclusion of testimony by trial counsel on the ground that it was irrelevant for post conviction relief. Petitioner argued that the testimony was relevant to show knowledge of trial counsel and why certain actions were or were not taken. The Court agrees with petitioner, reversed and remanded.

City of Harrisburg v. Ellen Leigh

Defendant appeals condemnation of property that she owns, her compensation award and a supplemental judgment awarding attorney fees and costs. The defendant argues that the City needed to pay her for the land and improvements, not just the land, and that her allowable attorney fee should be larger because of the change in compensation. The Court agrees with defendant, compensation to be increased for improvements and award to be adjusted.

Three Rivers Education Association v. Three Rivers School District

The association challenges a decision by the ERB dismissing their complaint of unfair labor practice. The ERB found that increased student contact time and workload were not subject to bargaining because they were an “impact” of the change in schedule. The association argues the ERB’s decision lacks substantial reasoning. The Court agrees with the association, the ERB’s decision lacks substantial reasoning because it finds no causal connection between the change in schedule and increased student contact time and workload but does call it an impact.

State of Oregon v. Timothy John Wiener

State appeals suppression of evidence obtained during a traffic stop where the defendant was a passenger. The trial court found request for consent expanded the scope of the stop and was not supported by reasonable suspicion. The Court decided that an officer can make inquiries without violating the Oregon Constitution if they do not extend the duration of the stop. Here the request for consent came during an inevitable lull in the stop. In addition the request for consent did not constitute a criminal stop of the defendant in addition to the traffic stop.

Tuan Ahn Tran v. Board of Chiropractic Examiners

Mr. Tran challenges the Board’s decision to impose $201,250 in fines. He claims they have no authority over him because he did not apply for or get a license in Oregon and the maximum fines per proceeding is $10,000. The Court found the enabling statute for the Board of Chiropractic Examiners allows for them to discipline unlicensed practitioners and the $10,000 limit only applies to each incidence, Affirmed.

State of Oregon v. Robert J. Beck

Defendant appeals denial of a motion to set aside his record for negligent homicide. There is an exception for setting aside traffic offenses. The Court determined the exception for setting aside traffic offenses applies, affirmed.

Kenneth A. Thomas v. Department of Land Conservation and Development

Petitioner appeals DLCD two decisions by the DLCD regarding two groups of land parcels. The petitioner requested authorization under Measure 49 and Measure 37. The relevant determination of the DLCD in both cases was that land held by the petitioner as adjacent plots was considered “property” forming a contiguous whole. This limited his rights under the Measures. The Court agrees with the DLCD’s findings and affirms.

Statu Brevia Oregon Supreme Court and Oregon Court of Appeals weekly Podcast review Show Notes.

Please Scroll down to the bottom and press the play button to listen to the show on the web.

Oregon Supreme Court

State of Oregon v. Leland Jay Hemenway

The Court changed the rule regarding motions to suppress evidence when consent was obtained after an illegal stop. The previous Hall test required an initial showing of a “minimal factual nexus” by the defense followed by a State’s burden to prove the evidence was otherwise admissible because consent was independent of or only tenuously related to the police’s illegal conduct. The new test does not require the defense to show a minimal factual nexus, only that a consensual search occurred after an illegal stop. The State then needs to prove the consent was 1. voluntary 2. was not the product of the police exploitation of the stop. Courts will still look to proximity of illegal conduct and consent and presence of intervening or mitigating circumstances.

Justice Landau authored a concurring opinion cautioning on the court’s original intent approach.

Justice Walters dissented calling the new test more intrusive and less clear and does not give effect to the constitutional mandate of the Oregon exclusionary rule.

State of Oregon v. Buck Wade Davis and State of Oregon v. Frank Lumpkins

The Court affirmed in a split decision that running a suspect’s plates against a DMV database is not a “search” requiring coherent, systematic policy specifying when officers may check plates against a database. Both defendants were stopped and eventually convicted on charges of driving while suspended after police officers ran their plates and discovered the registered owner’s license was suspended.

Oregon Court of Appeals

State of Oregon v. Patrick Dean Marshall

Appeal from denial of motion to suppress after the defendant was convicted of felon in the possession of a firearm and theft by receiving. The defendant argued that modifications to the standard consent form by the officer offered immunity to the defendant for allowing the search. The defendant argues the consent was involuntary. The State argues the defendant was merely asserting a disclaimer for the contents of the RV and they would have inevitably discovered the evidence anyway. The Court found the consent not voluntary and disagrees about inevitable discovery, reversed and remanded.

Department of Human Resources v. G.J.R.

Appeal from a juvenile court finding that a prior conviction for indecency and failure to complete court ordered treatment created a risk of harm to child. There was another unchallenged finding of risk of harm for substance abuse and residential instability. The indecency conduct was brought up during the hearing and in context DHS believes the finding is supported by the evidence. The Court does not agree with DHS that there was enough evidence to support the claim, even in context of the other findings. Reversed.

State of Oregon v. Stressla Lynn Johnson

Defendant pleaded no contest on two counts of aggravated murder in 1993. In 2007 he filed a motion requesting DNA testing pursuant ORS 138.690. The court denied his motion. The Court found no basis for appeal in the statutory language, the finding is not appealable, appeal dismissed.

State of Oregon v. Charles Winston Murr

Defendant was found guilty of DUII, reckless driving and two counts of criminal mischief. He appeals after denial on a motion to dismiss based on statutory speedy trial grounds. He claims the relavant period of time should start when the citations were served on him, almost 2yrs prior to the prosecutor filing the information underlying the convictions. The Court found that the defendant is “charged with a crime” only when the accusatory instruments are filed with the court, dismissed.

Oregon Occupational Safety and Health Division v. CBI Services Inc.

CBI is challenging the second of two citations issued to it by OSHA after an ALJ vacated the first. OSHA cross appeals that dismissal of the first citation was in error by the ALJ. The Court found the ALJ misinterpreted the statute on the first citation by incorporating a height requirement on “boom supported elevating work platforms” and did not properly assess the knowledge element on the second. In order for the knowledge element to be properly considered the ALJ was required to consider a number of factors but imputed knowledge from only a few.

PIH Beaverton v. Super One Inc,

PIH brought a negligent construction claim against Super One and various subcontractors. The trial court granted a motion to dismiss based on the statute of ultimate repose, 10yr requirement. Following dismissal on the primary claim the subcontractors moved for and were granted dismissal on the same grounds from Super One’s indemnity claims. PIH argues that material issues of fact remain in regard to when the statute of ultimate repose begins to run. Super One argues the Statute doesn’t apply to indemnity claims. The Court found that the statute runs when work is substantially completed. This can be achieved in writing with acceptance by the contractee that the building is completed or can be occupied or used for its intended purpose. Evidence on the record doesn’t show the contractee accepted completion in writing and issues of fact remain. Super One stated that the hotel was substantially completed more than 10yrs prior to the claim being brought in its arguments and as the Statute does apply to indemnity claims, its indemnity claims are time barred by the Statute.

Statu Brevia Episode 29 Weekly Podcast review of the Oregon Supreme Court and Court of Appeals Decisions.

Oregon Supreme Court

In re: Complaint as to the Conduct of Roger Lee Clark

This is an appeal regarding fees on a disciplinary case. He was accused of 3 ethical violations and the bar sought a 30d suspension of license. After the record was closed he offered to settle, admitting one violation and pleading no contest to the other two for public reprimand. The trial panel found the bar did not prove one of its violations and gave a public reprimand. The bar was awarded costs which the petitioner appeals based on the penalty not exceeding his offer. The Court found the purpose of settlement provisions was to prevent the need for a hearing. The accused did not make his offer until after the initial hearing, Affirmed.

Bresee Homes Inc. v. Farmers Insurance Exchange

Bresee built homes without proper flashing that flooded. Bresee claimed the damages were covered by their insurer Farmers. Farmers won in summary judgment in both trial and at the Court of Appeals by citing a “products – completed operations hazard” exemption in their policy. The Court examined two documents for their decision, the policy and homeowner’s complaint. The Court found the exemption did not eliminate Farmers duty to defend Bresee but the amount of liability was unclear from the record. Reversed and remanded.

Oregon Court of Appeals

State of Oregon v. Thearone Giles

Mr. Giles appeals a sentence imposed of 25yrs with the possibility of parole. The defendant was convicted between the statutory sentencing scheme being declared unconstitutional by a case called McClain and the legislature enacting a compliant law. Defendant claims that by applying the law they enacted is ex post facto and a violation of state and federal constitutions. The court found the application to be ex post facto and remanded to apply the McClain sentencing – 25yrs with supervision vs. 25yrs with the possibility of parole and supervision.

State of Oregon v. C.E.B

Youth appeals denial of a motion to dismiss a delinquency petition and set aside judgment finding him within jurisdiction of the juvenile court. The state argues that the juvenile court’s jurisdiction over the youth and ability to enter an order dismissing the petition ended when the youth turned 25. The Court found the juvenile court to be a court of general jurisdiction and jurisdiction remains after the age of 25 on this matter. Reversed and remanded for the juvenile court to consider the merits of the youth’s motion.

Evergreen West Business Center, LLC v. Terry W. Emmert

This case has detailed facts about Mr. Emmert’s acts and trial court findings. The Court of Appeals found the fixed ratio of 4:1 for punitive:economic damages to be inapplicable here because evidence was presented to the jury that Mr. Emmert made a calculated decision to breach his duties, his net worth and history of business dealings. The jury then determined that an award of $600,000 was necessary to deter him in the future. Reversed and remanded.

State of Oregon v. Donna Marie Davis

DUII and reckless driving appeal from denial of a motion to suppress intoxilyzer results. She claims she was denied a reasonable opportunity to obtain and independant blood test. The Court found that the defendant was not required to request a blood test to be denied this right but conduct of officers did not prevent or hinder her ability to get a test so she had a “reasonable opportunity” to do so.

Department of Human Services v. T.H.

Father appeals from permanency plan for “another planned permanent living arrangement.” The juvenile court failed to include mandated written findings in their judgment. DHS claims the father’s rights are waived because he did not object at the hearing and the error was harmless. The Court found that the findings are not written until after the hearing so that the father could not have known to object at the hearing and the error was not harmless. Reversed and remanded

Terry Alfred Ballinger v. Mark Nooth

Post conviction relief court found in favor of defendant after being convicted of first degree sodomy and sexual abuse. The court granted a motion for summary judgment based on constitutionally ineffective assistance of counsel after the petitioner’s attorney notified the court they would not file a response. The petitioner filed a motion requesting relief from judgment based on excusable neglect statute which was denied. The Court found that the petition was required to address the merits of the defendant’s summary judgment motion when seeking relief and did not do so. Affirmed.

Statu Brevia Episode 28, Oregon Supreme Court and Oregon Court of Appeals weekly opinion review podcast.

Oregon Supreme Court

Rachel M. Weldon, LPC, v. Board of Licensed Professional Counselors and Therapists

Court of Appeals is not statutorily barred from allowing a stay on the immediate suspension of a health care practitioner’s license. They have the power to enforce and to stay pending appeal.

Synectic Ventures I, LLC, et al., v. EVI Corporation, et al.

Managing member may be able to make a binding ag

Oregon Court of Appeals

Daniel G. Koller v. Maureena Schmaing

Pfizer Inc. v. Oregon Department of Justice

Gregory Thomas Ewald and Judith Ellen Ewald

3P Delivery, Inc. v. Employment Department

3P Delivery, Inc. v. Employment Department Tax Section

State of Oregon v. William Thomas Roper

Department of Human Services v. C. L.

Kimberly Classen v. Arete NW, LLC

Jon Frakes v. Tim Nay

State of Oregon v. Nolen Brice Brock

State of Oregon v. Debra Francis Thompson

State of Oregon v. Joshua Curtis Jepson

Department of Human Services v. W. H. F.

Lithia Medford LM, Inc. v. Shawn S. Yovan

Statu Brevia Episode 27, Oregon Supreme Court and Oregon Court of Appeals weekly review, podcast show notes.

Oregon Supreme Court

State of Oregon v. Marsh & McLennan Companies, Inc., et al.,

The State appeals the decision by the Court of Appeals affirming the trial court that a party wishing to establish damages for misrepresentation are required to show actual reliance on misrepresentations made by the defendant and that the state could not establish reliance based on fraud on the market theory. The Oregon Supreme Court reversed the decision of the Court of Appeals. The legislative history of the statute in question does support claims based on fraud on the market. Fraud on the market is where misrepresentations distort the market price of a security, actual reliance is not required only that the market price was distorted by misrepresentation.

Department of Human Services v. G.D.W.,

The father appeals the decision by the Court of Appeals affirming the trial court’s decision to allow out of court evidence of a child as statements of a party opponent. There is nothing in the record supporting that the child was a party adverse to the state. The theory assumes that the child has an “interest” in maintaining the child parent relationship and is based on a previous Court of Appeals decision. The Oregon Supreme Court finds that something more than a mere “interest” needs to be established for a party to qualify as an opponent. Some kind of declaration in court or pleadings needs to be made asserting the position of the witness in order to be a party opponent.

State ex rel Portland Habilitation Center, Inc., v. Portland State University, et al.,

Defendant appeals writ of mandamus by circuit court ordering it to procure janitorial services from plaintiff, a qualified non profit. Defense claims that a remedy at law exists in the form of administrative hearings and that the writ is improper. There is conflicting statutory language on the matter and the Supreme Court found that no writ shall issue if a plain, speedy and adequate remedy at law is available. The writ is precluded by relief available under the Administrative Procedures Act.

Oregon Court of Appeals

State of Oregon v. Damon James Naudain

Defendant appeals jury instruction as impermissible comment on the evidence after conviction on two counts of aggravated murder. The instruction referenced undisputed evidence and how it applied to the law and was impermissible and prejudicial. Reversed.

State of Oregon v. Jose Aurelio Oidor

Defendant appeals denial of a motion for a judgment of acquittal(MJOA) after conviction on unlawful sound recording and labeling of a sound recording under preemption of federal Copyright Law. The Court found Federal law preempts on the recording charge but not on the labeling charge. However the court did not have a basis for a finding of actual damages and the Court of appeals exercised discretion to remedy the error. Reversed and remanded.

Sunset Presbyterian Church v. Brockamp & Jaeger, Inc.

Plaintiff appeals trial court’s dismissal of claims based on statute of limitation and ultimate repose. Defendants include a contractor, basing the dismissal on statute of limitation and subcontractors based on statute of ultimate repose. The trial court based their decision for the contractor on contract language that stated the statute of limitation runs when the work is substantially complete. The Court of Appeals cited another requirement in the contract stating that the architect also needs to sign off on the work, which there was no evidence of, reversed and remanded for the contractor. Also there remains issues of material fact for the subcontractors. If the contractee doesn’t agree in writing that the structure can be used/occupied for it’s intended purpose then the statute of ultimate repose runs when they constructively accept completed construction, repair or improvement. This occurs when the contractee assumes responsibility for maintenance, alteration or repair of the improvement. Reversed and remanded.

State of Oregon v. Laura Kay Coburn

Defendant appeals on statutory speedy trial grounds after state attributable delay of 18.5 months prior to her conviction of meth possession and child endangerment. The Court found reasons for delay reasonable in light of attendant circumstances, especially lack of judicial resources.

State of Oregon v. Robert James Landahl

Defendant appeals dismissal that was set aside so that the trial court could enter defendant’s guilty plea. Defendant completed DUII diversion and motioned to terminate diversion, which the court granted as it was unopposed. Shortly after the State discovered the defendant had violated diversion requirements by driving intoxicated in violation of the diversion agreement. The Court of Appeals finds that it does not have jurisdiction under the statute. Only appeals for a disposition exceeding the maximum allowed by law or cruel and unusual punishment are available. Appeal is Dismissed

State of Oregon v. Gregory Allen Beck

Defendant appeals denial of a motion in limine to exclude evidence of marijuana effects and denial of a motion of acquittal for insufficient evidence after conviction of DUII. The Court of Appeals found sufficient evidence in the record for a reasonable trier of fact to convict defendant. Also, the trial court did not improperly infer from the scientific evidence that the defendant was under the influence of marijuana at the time of the stop because his pupils were dilated. Affirmed.

Jocelyn Browne v. Portland Adventist Medical Center

Defendant appeals from a denial of a motion for a directed verdict after losing on medical negligence. Plaintiff claimed the defendant failed to timely diagnose and properly treat her heart attack. The Court affirms, evidence was sufficient for a reasonable trier of fact to find the defendant negligent. Affirmed.

Kelly Eugene Steele and Kelly Anne Steele

Husband appeals for abuse of discretion by trial court in its findings for indefinite spousal support and that compensatory spousal support was punitive in nature. The Court does not find abuse of discretion as the trial court’s opinion was supported by evidence in the record also the trial court did not mention the compensatory spousal support was punitive.

Kevin Mitchell Bumgarner v. Mark Nooth

State appeals decision by post conviction relief court finding constitutionally inadequate counsel for not arguing for merger on some of defendant’s convictions for first degree rape, two counts of unlawful sexual penetration, two counts of sex abuse, two counts of first degree kidnapping and one count of third degree assault. The Court of Appeals held the court properly found constitutionally inadequate counsel by defense for not arguing for merger during sentencing court.

State of Oregon v. Irina Anatoly Baranovich

Defendant appeals denial of a motion to dismiss based on statutory speedy trial grounds after waiting 17 months following issuance of the accusatory instrument. The defendant was incarcerated for 10 of those months in another county. The Court found that while the delay is attributable to the State because of her incarceration case law required that she demand a speedy trial if incarcerated in order for her to seek statutory relief. Affirmed.

State of Oregon v. Jose Barajas, Jr.

Defendant appeals sentencing, revocation of probation with a jail sentence of 12 months. Defendant was convicted of one count of 4th degree misdemeanor assault and one count of 4th degree felony assault. The revocation was based on the misdemeanor and he argues exceeds the the maximum sentence of the more serious fourth degree assault revocation which is not allowed under Oregon Constitutional grounds. The Court finds the proper comparator for the lesser included assault to be the maximum allowed under the the greater felony assault. Here, based on the crimes and the defendant’s criminal history the maximum for the felony assault would be 18 months and the sentence is OR constitutionally appropriate.

State of Oregon v. Cindy Jean Beckham
Appeal from an award of restitution after conviction of 4th degree assault domestic violence. Challenged on 2 bases, 1. supplemental judgment was untimely (>90d) and 2. amount was unsupported by the record. Court of Appeals remands for trial court hearing on whether failure to include restitution in the original judgment precludes awarding it now, if so, then was the supplemental judgment was untimely and for how much should restitution be for.

State of Oregon v. John Allen Ovendale
Appeal from conviction of first degree sodomy and sex abuse challenging expert testimony of a nurse practitioner not supported by evidence of trauma on the child. The Court of Appeals found that the rule for expert testimony for diagnosis of sex abuse must be supported by physical evidence. The three part test includes: significance of facts complex facts that the expert is better qualified to determine than a lay person, physical evidence that corroborates diagnosis of abuse and reliance on that evidence to make the diagnosis. Here fecal matter in the bathroom was used in part by the expert to make the diagnosis and the Court affirms.

Jill Christensen and Edward Christensen
Husband appeals marriage dissolution judgment’s determination of property division inter alia, based on abuse of discretion. The Court affirms, the trial court’s judgment was based on facts in the record, both parties rebutted the presumption of equal contribution and the husband failed to demonstrate that he should be awarded a greater division than the court awarded.

Sea River Properties v. Loren E. Parks
Plaintiff appeals decision quieting title in favor of defendant based on adverse possession, defendant cross assigns error in the court’s determination that the plaintiff was owner of record based on the doctrine of accretion. The Court of Appeals found that plaintiff had no claim to the property based on the doctrine of accretion, rather the defendant owned the property based on chain of title and doctrine of accretion, affirmed.

State of Oregon v. Roger Robert Febuary
Defendant appeals after conviction of 2 counts of first degree sex abuse, one count of furnishing alcohol to a minor, 2nd degree attempted sodomy, and harassment, for failure to exclude evidence of prior bad acts with victim’s sisters S and A. Defense basis for appeal was the evidence was insufficient to show “plan” under OEC 404(3). The Court of Appeals finds evidence regarding prior bad acts in regard to sister S should have been excluded but not sister A and reverses and remands.

State of Oregon v. Darin J. Kowalskij
Defendant was convicted multiple counts of identity and mail theft and appeals a denial of a motion for acquittal. He argues the indictment was insufficient, alleging he unlawfully obtained the personal information of ODOT, rather than employee of ODOT. The Court of Appeals found the indictment sufficient in its allegations and even if it were not the defendant was not prejudiced by the difference in semantics.

State of Oregon v. Timothy George Eshaia
Defendant was convicted of menacing and appeals the trial court’s decision to award $400 in attorney fees after a guilty plea. The trial court is required to have evidence supporting that the defendant is or or may be able to pay the fees. The Court of Appeals affirm’s the trial court’s decision because the record indicates the defendant had sufficient income to pay the fees based on disability income.

Ernesto R. Armenta v. PCC Structural, Inc.
Appeal from a decision by the Workder’s Compensation Board upholding a decision denying occupational disease claims for cervical and lumbar radiculopathy. The claimant argues the Board misinterpreted expert rebuttal evidence relating to the conditions, concluding that the expert’s evidence did not apply to the conditions. The Court of Appeals reverses and remands finding that evidence should not have been disregarded as it did apply to at least on of the conditions.

State of Oregon v. Amiel Jose Contreras
Defendant was convicted of DUII and appeals a decision denying his motion to dismiss based on Oregon statutory speedy trial grounds. The defendant filed his motion after a first trial resulted in a hung jury and before a second trial. The Court of Appeals held that the speedy trial statute only applies to the first trial.

State of Oregon v. Edward Martin Cespedes-Rodriguez
Defendant was convicted of failure to perform the duties of a driver and appeals based on sufficiency of evidence. The defendant produced evidence of choice of evils and argues the state failed to produce sufficient evidence to overcome his argument. The Court of Appeals found sufficient evidence for a rational trier of fact to find in favor of the State’s positition.

Peace River Seed Co-Operative, Ltd. v. Proseeds Marketing, Inc.
Peace River appeals the breach of contract award granted to them arguing it was improperly calculated inter alia. This would be a fantastic case to review appropriate contract damage calculations and when a party is responsible for them. Peace River claimed damages were calculated for an inappropriate time, 2002, that they were awarded in a way that relieved the breaching party because of currency exchange differences, they were measured improperly, that cost of recovering damages should be awarded along with attorney fees as agreed to in the contract. This case is being remanded on the damages calculation issues, award of recovery expenses but Canadian law applies regarding attorney fees.

Craig H. Ayer v. Rick Coursey
A post conviction relief appeal for denying him relief on first degree rape, sodomy and sex abuse. He claims his trial counsel failed to cross examine the victim and for failure to present a case at closing. Failure to make or not make the arguments the defense counsel reflected a suspension in professional judgment. The defense counsel should have crossed the witness about prior acts of abuse that could have explained the medical evidence had come from someone other than the defendant. Reversed and remanded.

State of Oregon v. Leonardo Espinoza-Barragan
Defendant appeals delivery of meth conviction after denial of a motion to suppress based on an illegally extended stop. That the defendant was nervous, evasive, had no luggage, bought his car for cash and didn’t have registration or insurance information were not sufficient to give rise to reasonable suspicion of criminal activity. Reversed

D. A. v. Joshua Bruce White
Respondent appeals stalking and protective order (SPO) based on sufficiency of evidence. The two are police officers and encounter one another at work, the respondent cites and “official duties” exception as they were both acting within the scope of their employments. He argues also that he caused no subjective alarm nor was any alarm on petitioner’s part objectively reasonable. The court finds the exception does not apply because the court could find based on the evidence that respondent intentionally intimidated the petitioner, affirmed.

V. A. N. v. Kenneth D. Parsons
Appeal from an SPO again challenging sufficiency of the evidence in support. Respondent sent a number of text messages over the course of a month, the last of which said the respondent wanted to “confront” petitioner. To be unwanted contacts the communications need to be accompanied with unequivocal threats of violence that were objectively likely to be acted on. Nothing in the respondent’s history or in the messages suggested respondented intended any violence in the confrontation. Reversed.

Department of Human Services v. M. Q.

Father appeals from jurisdiction of the juvenile court for the child’s welfare being endangered based on insufficiency of the evidence: was previously a ward of the state, father failed substance abuse treatment, and criminal history of father including incarceration. The record does not support that the child is currently endanger. Father presented evidence of no drug use in the last year, risk of relapse or criminal activity. Reversed.

Statu Brevia, Oregon Supreme Court and Court of Appeals review, Episode 26 Podcast Show Notes.

Oregon Court of Appeals

State of Oregon v. Cindy Jean Beckham

Appeal from an award of restitution after conviction of 4th degree assault domestic violence. Challenged on 2 bases, 1. supplemental judgment was untimely (>90d) and 2. amount was unsupported by the record. Court of Appeals remands for trial court hearing on whether failure to include restitution in the original judgment precludes awarding it now, if so, then was the supplemental judgment was untimely and for how much should restitution be for.

State of Oregon v. John Allen Ovendale

Appeal from conviction of first degree sodomy and sex abuse challenging expert testimony of a nurse practitioner not supported by evidence of trauma on the child. The Court of Appeals found that the rule for expert testimony for diagnosis of sex abuse must be supported by physical evidence. The three part test includes: significance of facts complex facts that the expert is better qualified to determine than a lay person, physical evidence that corroborates diagnosis of abuse and reliance on that evidence to make the diagnosis. Here fecal matter in the bathroom was used in part by the expert to make the diagnosis and the Court affirms.

Jill Christensen and Edward Christensen

Husband appeals marriage dissolution judgment’s determination of property division inter alia, based on abuse of discretion. The Court affirms, the trial court’s judgment was based on facts in the record, both parties rebutted the presumption of equal contribution and the husband failed to demonstrate that he should be awarded a greater division than the court awarded.

Sea River Properties v. Loren E. Parks

Plaintiff appeals decision quieting title in favor of defendant based on adverse possession, defendant cross assigns error in the court’s determination that the plaintiff was owner of record based on the doctrine of accretion. The Court of Appeals found that plaintiff had no claim to the property based on the doctrine of accretion, rather the defendant owned the property based on chain of title and doctrine of accretion, affirmed.

State of Oregon v. Roger Robert Febuary

Defendant appeals after conviction of 2 counts of first degree sex abuse, one count of furnishing alcohol to a minor, 2nd degree attempted sodomy, and harassment, for failure to exclude evidence of prior bad acts with victim’s sisters S and A. Defense basis for appeal was the evidence was insufficient to show “plan” under OEC 404(3). The Court of Appeals finds evidence regarding prior bad acts in regard to sister S should have been excluded but not sister A and reverses and remands.

State of Oregon v. Darin J. Kowalskij

Defendant was convicted multiple counts of identity and mail theft and appeals a denial of a motion for acquittal. He argues the indictment was insufficient, alleging he unlawfully obtained the personal information of ODOT, rather than employee of ODOT. The Court of Appeals found the indictment sufficient in its allegations and even if it were not the defendant was not prejudiced by the difference in semantics.

State of Oregon v. Timothy George Eshaia

Defendant was convicted of menacing and appeals the trial court’s decision to award $400 in attorney fees after a guilty plea. The trial court is required to have evidence supporting that the defendant is or or may be able to pay the fees. The Court of Appeals affirm’s the trial court’s decision because the record indicates the defendant had sufficient income to pay the fees based on disability income.

Ernesto R. Armenta v. PCC Structural, Inc.

Appeal from a decision by the Workder’s Compensation Board upholding a decision denying occupational disease claims for cervical and lumbar radiculopathy. The claimant argues the Board misinterpreted expert rebuttal evidence relating to the conditions, concluding that the expert’s evidence did not apply to the conditions. The Court of Appeals reverses and remands finding that evidence should not have been disregarded as it did apply to at least on of the conditions.

State of Oregon v. Amiel Jose Contreras

Defendant was convicted of DUII and appeals a decision denying his motion to dismiss based on Oregon statutory speedy trial grounds. The defendant filed his motion after a first trial resulted in a hung jury and before a second trial. The Court of Appeals held that the speedy trial statute only applies to the first trial.

State of Oregon v. Edward Martin Cespedes-Rodriguez

Defendant was convicted of failure to perform the duties of a driver and appeals based on sufficiency of evidence. The defendant produced evidence of choice of evils and argues the state failed to produce sufficient evidence to overcome his argument. The Court of Appeals found sufficient evidence for a rational trier of fact to find in favor of the State’s positition.

Peace River Seed Co-Operative, Ltd. v. Proseeds Marketing, Inc.

Peace River appeals the breach of contract award granted to them arguing it was improperly calculated inter alia. This would be a fantastic case to review appropriate contract damage calculations and when a party is responsible for them. Peace River claimed damages were calculated for an inappropriate time, 2002, that they were awarded in a way that relieved the breaching party because of currency exchange differences, they were measured improperly, that cost of recovering damages should be awarded along with attorney fees as agreed to in the contract. This case is being remanded on the damages calculation issues, award of recovery expenses but Canadian law applies regarding attorney fees.

Craig H. Ayer v. Rick Coursey

A post conviction relief appeal for denying him relief on first degree rape, sodomy and sex abuse. He claims his trial counsel failed to cross examine the victim and for failure to present a case at closing. Failure to make or not make the arguments the defense counsel reflected a suspension in professional judgment. The defense counsel should have crossed the witness about prior acts of abuse that could have explained the medical evidence had come from someone other than the defendant. Reversed and remanded.

State of Oregon v. Leonardo Espinoza-Barragan

Defendant appeals delivery of meth conviction after denial of a motion to suppress based on an illegally extended stop. That the defendant was nervous, evasive, had no luggage, bought his car for cash and didn’t have registration or insurance information were not sufficient to give rise to reasonable suspicion of criminal activity. Reversed

D. A. v. Joshua Bruce White

Respondent appeals stalking and protective order (SPO) based on sufficiency of evidence. The two are police officers and encounter one another at work, the respondent cites and “official duties” exception as they were both acting within the scope of their employments. He argues also that he caused no subjective alarm nor was any alarm on petitioner’s part objectively reasonable. The court finds the exception does not apply because the court could find based on the evidence that respondent intentionally intimidated the petitioner, affirmed.

V. A. N. v. Kenneth D. Parsons

Appeal from an SPO again challenging sufficiency of the evidence in support. Respondent sent a number of text messages over the course of a month, the last of which said the respondent wanted to “confront” petitioner. To be unwanted contacts the communications need to be accompanied with unequivocal threats of violence that were objectively likely to be acted on. Nothing in the respondent’s history or in the messages suggested respondented intended any violence in the confrontation. Reversed.

Department of Human Services v. M. Q.

Father appeals from jurisdiction of the juvenile court for the child’s welfare being endangered based on insufficiency of the evidence: was previously a ward of the state, father failed substance abuse treatment, and criminal history of father including incarceration. The record does not support that the child is currently endanger. Father presented evidence of no drug use in the last year, risk of relapse or criminal activity. Reversed.

Statu Brevia Episode 24 Podcast (click play button at bottom) and Show Notes.  This week we had a number of constitutional issues decided and the rules for eyewitness testimony were revised, big deal.

Oregon Supreme Court Decisions

State of Oregon v. Samuel Adam Lawson / State of Oregon v. Stanley Dale James, Jr.

Both defendants appeal denial of motions to suppress evidence based on suggestive eye witness accounts. The respective courts based their decisions to allow the suggestive evidence from a common law evidence rule in a case called Classen. The Court decided to alter the Classen rule based on overwhelming scientific evidence regarding the reliability of eyewitness identifications. The Court also changed the burden in the test for admissible suggestive evidence, moving the burden from the defense to make an initial showing of suggestiveness to the State to demonstrate admissibility, especially probative value vs. danger of unfair prejudice. The Court had structured Classen as a due process examination after a US Supreme Court ruling, rather than a rule of evidence. Shifting the burden to the state will correct this. The Court has chosen to supply interpretive tests to existing OEC rules for eyewitness admissibility. In applying this new tests the Court reversed and remanded on Lawson and affirmed on James.

State of Oregon v. Luis Sanchez-Alfonso

Defendant appeals post assault conviction regarding admissibility of expert testimony. Defendant was charged with and convicted of assault of an 18 month old child with the aid of expert testimony. The expert, a Doctor, testified not only that the injuries caused to the child were from child abuse but that the defendant was the abuser. The expert’s conclusion that the defendant was not supported by any scientific reasoning but based on reports given to the expert by the police. The state argued that even if this evidence should not have been admitted the error was harmless because the defendant had admitted to injuring the child. The Court reversed and remanded finding the expert’s testimony inadmissible in regard to their conclusion that the defendant was the abuser and the error was not harmless. The defendant had presented evidence that the aunt of the child had caused the injury and the jury could have believed that evidence.

Hope Presbyterian Church of Rogue River v. Presbyterian Church (U.S.A.), et al.

Hope Presbyterian appeals a decision by the Oregon Court of Appeals stating that the property enjoyed by Hope Presbyterian was held in trust by them for PCUSA. The trial court had agreed with Hope’s position. The title deeds do not mention the trust relationship and PCUSA does not dispute that Hope holds legal title to the properties in question. PCUSA is the successor organization to Hope’s original national affiliation. Hope has been affiliated with a national organization since its founding in 1901. In 1983 when PCUSA was formed it adopted the PCUSA Book of Order which describes all congregations property is held in trust for PCUSA. The Presbytery of the Cascades adopted the Book of Order while Hope was part of it’s Presbytery. Additionally two members were present and assented to the Book of Order’s terms when PCUSA was formed. Shortly after the Hope Congregation amended their bylaws to include the trust language from the Book of Order. The trial court concluded that “neutral principles” review required them to look exclusively to legal documents outside of the church hierarchy to base their decision and ignored the Book of Order and other church documents, looking only to deeds, local congregation bylaws and whether OR trust law was followed. This an alternative to the hierarchical approach where the court confirms the highest decision of the established church hierarchy. The Oregon Court of Appeals based their decision on the hierarchical approach. The Oregon Supreme Court applied neutral prinicples to decide in favor of PCUSA by not ignoring Hope’s constitution. There is law supporting property ownership remaining with the schism even in the presence of a trust provision in favor of the church hierarchy. The Oregon Supreme Court examined Oregon Trust law to see if a trust interest for PCUSA existed under Oregon law. The Court applied the basic trust requirements (1) the settlor must have capacity to create a trust; (2) the settlor must indicate an intention to create the trust; (3) the trust must have a definite beneficiary; (4) the trustee must have duties to perform; and (5) the same person cannot be the sole trustee and the sole beneficiary. ORS 130.155(1). In applying Oregon Trust Law the Court found in favor of PCUSA.

Portland State University Chapter of the American Association of University Professors v. Portland State University

Appeal from a decision in favor of PSU originally appealed from the ERB. The Oregon Court of Appeals found that a “Resort to Other Procedures” clause in the bargained for labor agreement was no unenforceable due to illegal discrimination under Title VII of the USC, the civil rights act, or equivalent State law. The plaintiffs asserted the exact same arguments for both Federal and State law. The Court of Appeal’s decision was based on recent Federal interpretations of Title VII, narrowing its protections. The Oregon Supreme Court disagreed with the Court of Appeals because it viewed the equivalent State laws to have a different legislative and common law history that did not parallel Title VII. Most importantly Oregon law states “it was an “unlawful employment practice” for an employer, labor organization, or employment agency to “discharge, expel or otherwise discriminate against any person” because that person opposed any unlawful employment practices or “filed a complaint, testified, or assisted in any proceeding[.]” The Oregon Supreme Court found the ROP to be unenforceable as illegally discriminatory because it thwarts the anti-retaliation provisions in both state and federal law. Under the ROP only the employee that asserts their grievance rights loses their right to bring claims in outside forums, a right all other employees have.

State of Oregon v. Thomas Harry Bray

The victim filed an interlocutory appeal to prevent use by the defendant of a copy of her hard drive made for a related civil trial. The defendant was convicted of rape, sodomy and strangulation. Defense was aware that the victim made a google search after her encounter with the defendant but prior to calling the police. The trial court concluded the google search was exculpatory evidence. The defendant was unable to obtain the evidence from Google and was denied a motion to compel the victim to present her computer at trial. The court eventually granted a motion to compel cloning of one the victim’s hard drives being held for the civil trial to put in the record sealed for appeal. The victim objected to the motion based on Oregon’s victim’s right’s Constitutional guarantees. After a hearing the Court rejected the victim’s arguments. The victim submitted an interlocutory appeal which the Court granted as a petition for review. The Court acknowledged that the victim had a right to refuse a discovery request by a defendant. The Court decided that creating a clone under seal for appellate review did not amount to discovery, the trial court’s decision is affirmed.

Statu Brevia Episode 24 Podcast (click play button at bottom) and Show Notes.  This week the Oregon Supreme court did not have any cases or media releases posted for us to review.  The Oregon Court of Appeals took it easy on us as well.

Oregon Court of Appeals Decisions

Yuan Chou PhD v. Farmers Insurance Exchange

Farmer’s appeals grant of partial summary judgment and jury finding in favor of plaintiff for breach of contract. A neighbor’s house slid down the hill into the plaintiff’s home. The contract specifically excludes damage due to “collapse.” It does have a clause covering damage from vehicles hitting the home, cars and planes. There is some ambiguity which the trial court resolved in favor of the non-drafting party, the plaintiff. The court of appeals agreed with the trial court regarding how ambiguity should be interpreted and affirmed the decision.

Oregon Education Association v. Loren Parks

Defendant appeals a limited judgment against them based on the Oregon Racketeering Influenced and Corrupt Organizations Act (ORICO). Parks is associated William Sizemore and was accused of using the tax-exempt American Tax Research Foundation (ATRF) to improperly fund campaigns and pay for Mr. Sizemore’s living expenses. Defendant’s brought suit under the anti – Strategic Lawsuits Against Public Participation or anti SLAPP. The Court of Appeals affirmed the trial court’s decision denying the defendant’s motion.

State of Oregon v. Cody Gean Canfield

The defendant asked the Court of Appeals to reconsider their decision affirming a denial fof motion to suppress based on an incorrect recitation of facts by the court. Specifically, at the time of that Mr. Canfield gave consent was the illegal seizure attenuated by the officer telling him that he could go. The original opinion had Canfield giving consent after the officer told him that he could leave. Both the State and Defense agree, he gave consent prior. The State asked the court to affirm regardless. The Court of Appeals disagrees, reversed and remanded.

State of Oregon v. Paul Darwin Rennells, Jr.

Defendant appeals denial of motion to suppress based on unlawful entry and denial of a motion for acquittal on two assault charges for failure to prove venue on one count and failure to physical injury. The officer arrived after getting a call about screaming at the residence. He knocked, someone looked at him from the window but didn’t answer. In the driveway were the defendant’s and victim’s vehicles. The defendant was under a restriction not to see the victim. Neighbors reported past problems at the residence. The manager provided a key and the officer opened the door to the chain and yelled inside. Hearing no response he kicked the door open to find the defendant and victim in a bedroom. Both made inculpatory statements to the officer at that time. The assaults were a slap and a kick, there is evidence of where the slap occurred in the record, at the apartment. I think there was a shove in there somewhere too. On the physical injury, the state didn’t show that she had any loss of use of her legs or was in enough pain to prevent her from doing anything. The Court of Appeals affirms the denial on the motion to suppress for unlawful entry as the officers actions were lawful under the emergency aid warrant exception. The court also affirms the decision regarding venue but not on the physical injury requirement for the last assault charge it was reversed and remanded.

Department of Human Services v. JCG

Father appeals wardship finding by juvenile court. The mother of the child had passed away and the child was living with her grandparents in CA. The father moved the child to OR with him and his new wife. School personnel reported injuries to DHS and the child was put in protective custody. The father was required to take steps to prevent the child from interacting with the step mother. The father moved out of his home with her and arranged for a teacher to watch the child until he got home from work. The father was required to file a written plan to DHS for protecting the child. The Court of Appeals affirms continuation of the wardship because the father did not provide a written plan for implementation. The child was already returned to the father’s physical custody.

State of Oregon v. Daniel Steven Zolotoff

Defendant appeals for failure to give a jury instruction for attempt to possess a weapon by an inmate, he was convicted of possessing a weapon. The mens rea is different for an attempt crime but evidence in the record would have supported the charge. The defendant had hidden a partially sharpened utensil under the edge of his toilet. The state claims that this was a “weapon.” The defense claims that the utensil had not yet been converted into a “shiv” or “weapon.” The Court of Appeals agreed with the law presented by the defense and found the error not harmless, reversed and remanded.