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									               CRIMINAL LAW SECTION CLE

                         Portland, Oregon
                           April 6, 2007




              APPELLATE UPDATE
                                 By

                       Jennifer S. Lloyd
                    & Timothy A. Sylwester



            Appellate and Criminal Justice Divisions
                Oregon Department of Justice
                 (503) 378-4402 and 378-6347




                   Covering Oregon cases from

                  April 2006 to March 28, 2007
        (Oregon Reporter, Advance sheet vols. 2006-9 to 2007-7)

                                 and

Criminal cases from the United States Supreme Court’s 2006 term
                                APPELLATE DIVISION

               Justice Building, 1162 Court Street NE, Salem OR 97301-4096

Personnel:   Mary H. Williams, Solicitor General
             Robert M. Atkinson, Supreme Court Coordinator
             Jonathan H. Fussner, Attorney in Charge, Criminal Appeals
                    e-mail: j.fussner@state.or.us
             Kathleen Cegla, Attorney in Charge,
                    Collateral Remedies & Capital Appeals
                    e-mail: kathleen.cegla@state.or.us
             Timothy A. Sylwester, Capital Cases Coordinator
                    e-mail: timothy.sylwester@state.or.us
             Richard D. Wasserman, Attorney in Charge, Civil Appeals



             CRIMINAL JUSTICE DIVISION – D.A. ASSISTANCE
                    610 Hawthorne Ave. S.E., Suite 210, Salem OR 97301
Personnel:
             Erik Wasmann, Attorney in Charge (erik.wasmann@state.or.us)
             Jennifer S. Lloyd, Sr AAG (jennifer.lloyd@state.or.us)
             O. Scott Jackson, Sr AAG (o.scott.jackson@state.or.us)
             Deena Ryerson, Sr AAG (deena.a.ryerson@state.or.us)
             Stephanie J. Tuttle, Sr AAG (stephanie.j.tuttle@state.or.us)
                                                      TABLE OF CONTENTS
ACCOMPLICES .................................................................................................................................. 1
ACCUSATORY INSTRUMENTS ...................................................................................................... 1
APPEALS............................................................................................................................................. 1
   Appeals: appealable orders, filing notice of appeal, appellate jurisdiction ..................................... 1
   Appeals: filing fees .......................................................................................................................... 2
   Appeals: dismissal of appeal ........................................................................................................... 3
   Appeals: motions filed in the appellate courts ................................................................................ 3
   Appeals: record on appeal ............................................................................................................... 3
   Appeals: issues reviewable.............................................................................................................. 4
   Appeals: preservation of error, ―plain error‖ review ....................................................................... 4
   Appeals: ―right for the wrong reason‖ affirmance .......................................................................... 6
   Appeals: claims of error that may be moot, harmless, or waived ................................................... 7
   Appeals: remand for further proceedings, proceedings on remand................................................. 9
   Appeals: law of the case ................................................................................................................ 11
   Appeal: Review by United States Supreme Court ........................................................................ 11
ARREST............................................................................................................................................. 11
ARSON AND RELATED OFFENSES ............................................................................................. 11
ASSAULT, CRIMINAL MISTREATMENT, AND RELATED OFFENSES ................................. 12
BURGLARY / TRESPASS ............................................................................................................... 13
CHILD NEGLECT ............................................................................................................................ 13
CLAIM PRECLUSION / COLLATERAL ESTOPPEL / LAW OF CASE ...................................... 13
COERCION ....................................................................................................................................... 14
CONFESSIONS / MIRANDA ............................................................................................................ 14
CONSTITUTIONAL LAW ............................................................................................................... 17
   Constitutional law: due-process issues .......................................................................................... 17
   Constitutional law: equal-protection issues................................................................................... 18
   Constitutional law: free-speech issues .......................................................................................... 18
   Constitutional law: pre-emption .................................................................................................... 18
   Constitutional law: other issues..................................................................................................... 18
   Constitutional law: construing constitutional provisions .............................................................. 19
CONTEMPT ...................................................................................................................................... 20
COURTS ............................................................................................................................................ 20


                                                                          i
DEATH PENALTY ........................................................................................................................... 20
   Death penalty: federal cases .......................................................................................................... 20
   Death penalty: state cases .............................................................................................................. 21
DEFENSES ........................................................................................................................................ 23
DEMURRERS ................................................................................................................................... 25
DISCOVERY ..................................................................................................................................... 25
DRIVING UNDER THE INFLUENCE OF INTOXICANTS .......................................................... 26
   DUII: diversion ............................................................................................................................. 26
   DUII: breath test ............................................................................................................................ 26
   DUII: evidence .............................................................................................................................. 27
   DUII: felony DUII ......................................................................................................................... 28
   DUII: administrative license-suspension hearings ........................................................................ 28
   DUII: sentencing ........................................................................................................................... 28
DRUG OFENSES .............................................................................................................................. 29
ESCAPE ............................................................................................................................................. 29
EVIDENCE ........................................................................................................................................ 29
   Evidence: sufficiency of objection ................................................................................................ 29
   Evidence: judicial notice (OEC 201) ............................................................................................ 30
   Evidence: probative value vs. prejudice (OEC 403) ..................................................................... 30
   Evidence: impeachment by prior statement (OEC 613)................................................................ 32
   Evidence: lay opinion (OEC 701) ................................................................................................. 32
   Evidence: expert testimony (OEC 702) ........................................................................................ 32
   Evidence: scientific evidence ........................................................................................................ 33
   Evidence: hearsay exceptions — statement not hearsay (OEC 801(4)) ........................................ 33
   Evidence: hearsay exceptions — ―excited utterance‖ (OEC 803(2))............................................ 33
   Evidence: hearsay exceptions — ―state of mind‖ (OEC 803(3)) .................................................. 34
   Evidence: hearsay exceptions — statements relating to child abuse (OEC 803(18a)(b))............. 34
   Evidence: hearsay exceptions — against penal interest (OEC 804(3)(c)) .................................... 34
   Evidence: Confrontation Clause, Crawford objections ................................................................. 35
EX POST FACTO .............................................................................................................................. 37
FAILURE TO APPEAR .................................................................................................................... 37
FORFEITURE .................................................................................................................................... 38
FORMER JEOPARDY ...................................................................................................................... 38


                                                                          ii
FURNISHING ALCOHOL TO A MINOR ....................................................................................... 39
GUILTY PLEAS ................................................................................................................................ 39
HABEAS CORPUS PROCEEDINGS ................................................................................................ 40
   Habeas corpus: federal-court proceedings .................................................................................... 40
   Habeas corpus: state-court proceedings ........................................................................................ 42
HINDERING PROSECUTION ......................................................................................................... 42
HOMICIDE ........................................................................................................................................ 42
INMATES: CONDITIONS OF CONFINEMENT ............................................................................ 43
INSANITY ......................................................................................................................................... 43
INSTRUCTIONS ............................................................................................................................... 44
INTERFERING WITH A PEACE OFFICER ................................................................................... 46
JOINDER ........................................................................................................................................... 47
JURY TRIAL ..................................................................................................................................... 47
   Jury trial: right to jury, waiver ...................................................................................................... 47
   Jury trial: juror selection, voir dire ................................................................................................ 47
KIDNAPPING AND RELATED OFFENSES .................................................................................. 48
LESSER-INCLUDED OFFENSES ................................................................................................... 48
MANDAMUS .................................................................................................................................... 49
MENTAL STATES............................................................................................................................ 49
MISTRIAL ......................................................................................................................................... 50
NEW-TRIAL MOTIONS .................................................................................................................. 51
PAROLE ............................................................................................................................................ 52
POST-CONVICTION PROCEEDINGS ........................................................................................... 54
PROSTITUTION ............................................................................................................................... 56
RECKLESSLY ENDANGERING .................................................................................................... 56
RESISTING ARREST ....................................................................................................................... 57
RESTRAINING ORDERS ................................................................................................................ 57
RIGHT TO COUNSEL ...................................................................................................................... 57
   Right to counsel: before indictment, during pretrial stage ............................................................ 57
   Right to counsel: right to counsel of choice .................................................................................. 58
   Right to counsel: waiver of counsel .............................................................................................. 59
   Right to counsel: appointment of counsel and consultation .......................................................... 59
   Right to counsel: substitution of counsel ...................................................................................... 59


                                                                         iii
   Right to counsel: adequacy of representation ............................................................................... 60
SEARCH & SEIZURE....................................................................................................................... 60
   Search & seizure: privacy interests / searches .............................................................................. 60
   Search & seizure: probable cause .................................................................................................. 62
   Search & seizure: search / entry and seizure pursuant to warrant ................................................. 63
   Search & seizure: warrantless searches — automobile exception ................................................ 65
   Search & seizure: warrantless searches — consent....................................................................... 66
   Search & seizure: warrantless searches — emergency aid ........................................................... 67
   Search & seizure: warrantless searches — incident to arrest ........................................................ 69
   Search & seizure: warrantless searches — inevitable discovery .................................................. 69
   Search & seizure: warrantless searches — inventory / administrative searches ........................... 70
   Search & seizure: warrantless searches — plain-view exception ................................................. 70
   Search & seizure: exclusionary rule .............................................................................................. 71
SENTENCING ................................................................................................................................... 73
   Sentencing: constitutional issues — right to jury, Apprendi ........................................................ 73
   Sentencing: constitutional issues — ex post facto ........................................................................ 74
   Sentencing: constitutional issues — proportionality objections ................................................... 74
   Sentencing: constitutional issues — other .................................................................................... 74
   Sentencing: crime-seriousness ranking ......................................................................................... 75
   Sentencing: criminal history.......................................................................................................... 75
   Sentencing: term of post-prison supervision ................................................................................. 75
   Sentencing: probationary dispositions .......................................................................................... 76
   Sentencing: departures — aggravating factors .............................................................................. 76
   Sentencing: departures — mitigating factors ................................................................................ 76
   Sentencing: consecutive sentences ................................................................................................ 77
   Sentencing: statutory sentences — murder (ORS 163.115) .......................................................... 77
   Sentencing: statutory sentences — dangerous offender (ORS 161.725) ...................................... 77
   Sentencing: statutory sentences — Denny Smith statute (ORS 137.635) ..................................... 78
   Sentencing: statutory sentences — firearm-minimum (ORS 161.610)......................................... 78
   Sentencing: statutory sentences — repeat property offenders (ORS 137.717) ............................. 78
   Sentencing: statutory sentences — no-release orders (ORS 137.750) .......................................... 79
   Sentencing: statutory sentences — three-strikes law (ORS 137.719) ........................................... 79
   Sentencing: statutory sentences — other prior-conviction offenses ............................................. 79


                                                                       iv
   Sentencing: merger ........................................................................................................................ 80
   Sentencing: miscellaneous — fines, restitution, costs, forfeiture ................................................. 82
   Sentencing: miscellaneous — expunction orders.......................................................................... 83
   Sentencing: appeals — appealability ............................................................................................ 83
   Sentencing: appeals — scope of review ........................................................................................ 83
   Sentencing: appeals — reviewability, ―plain error‖ review .......................................................... 84
   Sentencing: appeals — claims of error that may be moot, harmless, or waived........................... 85
   Sentencing: appeals — remand for resentencing, entry of a corrected judgment ......................... 86
   Sentencing: appeals — proceedings on remand ............................................................................ 86
   Sentencing: challenges to sentences on collateral review — post-conviction .............................. 87
SEXUAL OFFENSES........................................................................................................................ 88
SHACKLING ..................................................................................................................................... 89
SPEEDY TRIAL ................................................................................................................................ 89
STALKING ........................................................................................................................................ 91
STATUTE OF LIMITATIONS ......................................................................................................... 92
STATUTORY CONSTRUCTION .................................................................................................... 92
STOP AND FRISK ............................................................................................................................ 93
   Stop & frisk: stop vs. mere encounter ........................................................................................... 93
   Stop & frisk: reasonable suspicion / probable cause ..................................................................... 94
   Stop & frisk: duration or scope of intrusion .................................................................................. 94
TAMPERING WITH WITNESS ....................................................................................................... 95
THEFT, FORGERY, AND PROPERTY OFFENSES ...................................................................... 95
TRAFFIC OFFENSES ....................................................................................................................... 95
TRIAL ................................................................................................................................................ 96
VENUE .............................................................................................................................................. 97
WEAPONS OFFENSES .................................................................................................................... 98
WILDLIFE OFFENSES .................................................................................................................... 98
                                                     TABLE OF AUTHORITIES
                                                                    Cases Cited
Alexander v. Board of Parole,
  205 Or App 443, 134 P3d 449,
  rev den 341 Or 449 (2006) ................................................................................................................... 6, 9, 53
Asman v. State of Oregon,
  210 Or App 369, 150 P3d 1101 (2007) ........................................................................................................55



                                                                           v
Atkinson v. Board of Parole,
  341 Or 382, 143 P3d 538 (2006) ..................................................................................................................52
Bailey v. Lampert,
  342 Or 321, __ P3d __ (2007) .................................................................................................... 79, 87, 92, 98
Baize v. Board of Parole,
  206 Or App 548, 138 P3d 58 (2006) ..............................................................................................................9
Barrett v. Belleque,
  209 Or App 295, 150 P3d 1064 (2006) ........................................................................................................42
Beard v. Banks,
  548 US __, 126 S Ct 2572, 165 L Ed 2d 697 (2006) ...................................................................................43
Brigham City, Utah v. Stuart,
  547 US __, 126 S Ct 1943, 164 L Ed 2d 650 (2006) ...................................................................................67
Carey v. Musladin,
  549 US ___ (05-785) (December 11, 2006) ........................................................................................... 17, 40
Clark v. Arizona,
  548 US __, 126 S Ct 2709, 165 L Ed 2d 842 (2006) ............................................................................. 43, 79
Courtemanche v. Milligan,
  205 Or App 244, 134 P3d 999 (2006) ..........................................................................................................91
Davis v. Board of Parole,
  341 Or 442, 144 P3d 931 (2006) ..................................................................................................................52
Davis v. DMV,
  209 Or App 39, 146 P3d 378 (2006),
  rev den 342 Or 344 (2007) ............................................................................................................... 26, 27, 28
Davis v. Washington,
  547 US __, 126 S Ct 2266, 165 L Ed 2d 224 (2006) ...................................................................................35
Day v. McDonough,
  547 US 198, 126 S Ct 1675, 164 L Ed 2d 376 (2006) .................................................................................41
Demeyer v. Board of Parole,
  206 Or App 740, 139 P3d 969 (2006) ..........................................................................................................53
DiCarlo v. McCarthy,
  208 Or App 184, 145 P3d 178 (2006) ..........................................................................................................91
Dixon v. United States,
  548 US __, 126 S Ct 2437, 165 L Ed 2d 299 (2006) ...................................................................................23
Engweiler v. Board of Parole,
  340 Or 361, 133 P3d 910 (2006) .............................................................................................................. 1, 52
Estes v. Dept. of Corrections,
  210 Or App 399, 150 P3d 1088 (2007) ........................................................................................................78
Garcetti v. Ceballos,
  547 US __, 126 S Ct 1951, 164 L Ed 2d 689 (2006) ...................................................................................18
Georgia v. Randolph,
  547 US 103, 126 S Ct 1515, 164 L Ed 2d 208 (2006) ........................................................................... 60, 66




                                                                         vi
Gill v. Lampert,
  205 Or App 90, 132 P3d 674 (2006) ................................................................................................ 56, 77, 88
Gonzalez v. State of Oregon,
  340 Or 452, 134 P3d 955 (2006) ............................................................................................................ 54, 60
Habrat v. Milligan,
  208 Or App 229, 145 P3d 180 (2006) ..........................................................................................................91
Harding v. Hall,
  210 Or App 753, ___ P3d ___ (2007) ..........................................................................................................55
Hartman v. Moore,
  547 US __, 126 S Ct 1695, 164 L Ed 2d 441 (2006) ...................................................................................18
Hendricks v. Hill,
  209 Or App 812, 149 P3d 318 (2006) ...................................................................................................... 5, 55
Hill v. McDonough,
  547 US __, 126 S Ct 2096, 165 L Ed 2d 44 (2006) ............................................................................... 21, 41
Hinton v. Hill,
  342 Or 222, 149 P3d 1205 (2006) ................................................................................................................54
Holmes v. South Carolina,
  547 US __, 126 S Ct 1727, 164 L Ed 2d 503 (2006) ....................................................................... 21, 24, 30
House v. Bell,
  547 US __, 126 S Ct 2064, 165 L Ed 2d 1 (2006) ................................................................................. 20, 40
Hudson v. Michigan,
  547 US __, 126 S Ct 2159, 165 L Ed 2d 56 (2006) ............................................................................... 63, 71
Johnson v. Babcock,
  206 Or App 217, 136 P3d 77,
  rev den 341 Or 450 (2006) ...........................................................................................................................60
Jury Service Resource Center v. DeMuniz et al.,
  340 Or 423, 134 P3d 948 (2006) ............................................................................................................ 19, 47
Kansas v. Marsh,
  548 US __, 126 S Ct 2516, 165 L Ed 2d 429 (2006) ............................................................................. 11, 20
Kellas v. Dept. of Corrections,
  341 Or 471, 145 P3d 139 (2006) ..................................................................................................................52
Larsen v. Board of Parole,
  206 Or App 353, 138 P3d 16 (2006) ...................................................................................................... 53, 59
Liberty Northwest Ins. v. Oregon Ins. Guarantee,
   206 Or App 102, 136 P3d 49 (2006) ............................................................................................................19
Lincoln Interagency Narcotics Team v. Kitzhaber,
   341 Or 496, 145 P3d 151 (2006) ............................................................................................................ 19, 38
Lincoln Loan Co. v. City of Portland,
   340 Or 613, 136 P3d 1 (2006) ......................................................................................................................13
Lutz v. Hill,
  205 Or App 252, 134 P3d 1003,
  rev den 341 Or 140 (2006) ............................................................................................................... 56, 74, 88



                                                                          vii
Mabon v. Wilson,
  340 Or 385, 133 P3d 899 (2006) ..................................................................................................................20
McCline v. Board of Parole,
  205 Or App 144, 133 P3d 349,
  rev den 342 Or 46 (2006) .............................................................................................................................53
McDonald v. Belleque,
  206 Or App 655, 138 P3d 392,
  rev den 341 Or 392 (2006) ......................................................................................................... 37, 55, 75, 88
Peed v. Hill,
  210 Or App 704, ___ P3d ___ (2007) .................................................................................................... 36, 55
Provost v. Atchley,
  205 Or App 37, 132 P3d 30 (2006) ..............................................................................................................92
Rosiles-Flores v. Browning,
  208 Or App 600, 145 P3d 328 (2006) ..........................................................................................................57
Roy v. Palmateer,
  205 Or App 1, 132 P3d 56 (2006) .................................................................................................... 49, 53, 75
Samson v. California,
  547 US __, 126 S Ct 2193, 165 L Ed 2d 250 (2006) ............................................................................. 60, 70
Sanchez-Llamas v. Oregon,
  548 US __, 126 S Ct 2669, 165 L Ed 2d 557 (2006) ....................................................................... 14, 18, 54
Smith v. DiMarco,
  207 Or App 558, 142 P3d 539 (2006) ..........................................................................................................91
Snodgrass v. Lampert,
  210 Or App 390, 150 P3d 1109 (2007) .................................................................................................. 55, 87
State ex rel. Engweiler v. Cook,
   340 Or 373, 133 P3d 904 (2006) ..................................................................................................................52
State ex rel. Juv. Dept. v. McLaughlin,
   205 Or App 325, 134 P3d 964 (2006) ..........................................................................................................48
State v. Acree,
   205 Or App 328, 134 P3d 1069 (2006) ........................................................................................................52
State v. Allen,
   205 Or App 219, 134 P3d 976 (2006) ............................................................................................ 2, 4, 11, 90
State v. Anderson,
   208 Or App 409, 145 P3d 245 (2006) ..........................................................................................................77
State v. Avera,
   208 Or App 625, 145 P3d 288 (2006),
   rev den 342 Or 299 (2007) ................................................................................................................. 5, 96, 97
State v. Ayers,
   203 Or App 683, 126 P3d 1241 (2006),
   on recon 207 Or App 668, 145 P3d 277,
   rev den 342 P3d 253 (2006) .........................................................................................................................90




                                                                          viii
State v. Baldwin,
   206 Or App 643, 138 P3d 867,
   rev den 341 Or 366 (2006) ..................................................................................................................... 38, 95
State v. Balogh,
   209 Or App 162, 146 P3d 335 (2006) ..........................................................................................................86
State v. Barber,
   209 Or App 262, 147 P3d 915 (2006) ............................................................................................ 3, 5, 27, 30
State v. Barnes,
   208 Or App 640, 145 P3d 261 (2006) ................................................................................................ 8, 32, 88
State v. Barnes,
   209 Or App 332, 147 P3d 936 (2006) ..........................................................................................................81
State v. Barraza,
   206 Or App 505, 136 P3d 1126 (2006) ........................................................................................................63
State v. Becker,
   211 Or App 1, ___ P3d ___ (2007) ................................................................................................................8
State v. Benfit,
   205 Or App 180, 134 P3d 171 (2006) ..........................................................................................................94
State v. Bentz,
   211 Or App 129 , ___ P3d ___ (2007) ............................................................................................. 68, 69, 72
State v. Black,
   208 Or App 719, 145 P3d 367 (2006) .................................................................................................. 1, 8, 45
State v. Blas-Fernandez,
   205 Or App 563, 135 P3d 330 (2006) ..........................................................................................................83
State v. Boly,
   210 Or App 132, 149 P3d 1237 (2006) ........................................................................................................96
State v. Bowen,
   340 Or 487, 135 P3d 272 (2006) ...................................................... 23, 30, 31, 45, 48, 50, 77, 80, 84, 86, 89
State v. Brown,
   209 Or App 699, 149 P3d 294 (2006) ..........................................................................................................67
State v. Buehler,
   206 Or App 167, 136 P3d 64 (2006) ...................................................................................................... 74, 76
State v. Burdick,
   209 Or App 575, 149 P3d 190 (2006) ..........................................................................................................68
State v. Camarena,
   208 Or App 575, 145 P3d 267 (2006) ..........................................................................................................36
State v. Camarena-Velasco,
   207 Or App 19, 139 P3d 979 (2006) ...................................................................................................... 38, 82
State v. Campbell,
   207 Or App 585, 142 P3d 517 (2006) .................................................................................................... 72, 93
State v. Carter,
   205 Or App 460, 134 P3d 1078 (2006) .................................................................................................. 48, 70




                                                                           ix
State v. Cavaner,
   206 Or App 131, 135 P3d 402 (2006) .................................................................................................... 12, 31
State v. Chapman,
   209 Or App 771, 149 P3d 284 (2006) ..........................................................................................................12
State v. Chavez,
   211 Or App 142, ___ P3d ___ (2007) ..........................................................................................................39
State v. Clark,
   205 Or App 338, 134 P3d 1074,
   rev den 341 Or 245 (2006) ...........................................................................................................................74
State v. Clayton,
   210 Or App 442, 150 P3d 1078 (2007) .............................................................................................. 1, 80, 91
State v. Clemens,
   208 Or App 632, 145 P3d 294 (2006),
   rev den 342 Or 299 (2007) ...........................................................................................................................33
State v. Cochran,
   206 Or App 686, 138 P3d 864 (2006) .................................................................................................... 72, 94
State v. Cook,
   340 Or 530, 135 P3d 260 (2006) .................................................................................................. 7, 34, 35, 81
State v. Crandall,
   340 Or 645, 136 P3d 30 (2006) .............................................................................................................. 61, 71
State v. Crawford
   208 Or App 340, 144 P3d 1073 (2006) .......................................................................................................37
State v. Crosby,
   342 Or App 419, ___ P3d ___ (2007) .............................................................................................. 42, 44, 49
State v. Dahlen,
   210 Or App 362, 149 P3d 1234 (2006) .............................................................................................. 9, 39, 57
State v. Deloache,
   207 Or App 641, 142 P3d 74 (2006) ...................................................................................................... 75, 84
State v. Denham,
   211 Or App 98, __ P3d __ (2007) ................................................................................................................82
State v. Derschon,
   206 Or App 574, 138 P3d 30,
   rev den 341 Or 392 (2006) ................................................................................................................... 5, 9, 37
State v. Dinsmore,
   342 Or 1, 147 P3d 1146 (2006) ........................................................................................................ 26, 39, 57
State v. Dobash,
   210 Or App 145, 149 P3d 1235 (2006) ........................................................................................................74
State v. Eades,
   208 Or App 173, 144 P3d 1003 (2006) ................................................................................ 28, 79, 80, 82, 84
State v. Eldridge,
   207 Or App 337, 142 P3d 82 (2006) ............................................................................................................70
State v. Evans,
   211 Or App 162, ___ P3d ___ (2007) ..........................................................................................................50

                                                                            x
State v. Farmer,
   210 Or App 625, ___ P3d ___ (2007) ..........................................................................................................51
State v. Fettel,
   210 Or 404, 150 P3d 1076 (2007) ..................................................................................................................3
State v. Ford,
   205 Or App 506, 134 P3d 959 (2006) ...................................................................................................... 3, 38
State v. Ford,
   207 Or App 407, 142 P3d 107 (2006) ..........................................................................................................92
State v. Fugate,
   210 Or App 8, 150 P3d 409 (2006) ..............................................................................................................67
State v. Fults,
   210 Or App 150, 149 P3d 1248 (2006) ........................................................................................................76
State v. Gaino,
   210 Or App 107, 149 P3d 1229 (2006) ........................................................................................................26
State v. Gallegos,
   208 Or App 488, 145 P3d 255 (2006) .................................................................................................... 86, 87
State v. Garcia,
   206 Or App 745, 138 P3d 927 (2006) .............................................................................. 5, 10, 14, 29, 46, 49
State v. Garcia/Jackson,
   207 Or App 438, 142 P3d 501 (2006) ..........................................................................................................90
State v. Gatt,
   210 Or App 117, 149 P3d 1220 (2006) ........................................................................................................12
State v. Gordian,
   209 Or App 600, 149 P3d 190 (2006) ..........................................................................................................77
State v. Gortler,
   207 Or App 321, 142 P3d 74 (2006) .................................................................................................. 6, 76, 86
State v. Greenlick,
   210 Or App 662, ___ P3d ___ (2007) .................................................................................................... 89, 96
State v. Guest,
   207 Or App 395, 142 P3d 482 (2006) ..........................................................................................................94
State v. Guzek,
   342 Or 345, ___ P3d ___ (2007) ..................................................................................................................21
State v. Hankins,
   342 Or 258, 151 P3d 149 (2007) .............................................................................................................. 1, 25
State v. Hathaway,
   207 Or App 716, 143 P3d 545,
   rev den 342 Or 254 (2006) ..................................................................................................................... 81, 84
State v. Henderson,
   341 Or 219, 142 P3d 58 (2006) .............................................................................................................. 62, 64
State v. Hewitt,
   206 Or App 680, 138 P3d 873 (2006) .................................................................................................... 38, 96




                                                                           xi
State v. Hinton,
   209 Or App 210, 147 P3d 345 (2006) .................................................................................................... 13, 87
State v. Howard,
   205 Or App 408, 134 P3d 1042,
   rev den 341 Or 198 (2006) ......................................................................................................... 51, 78, 85, 93
State v. Hylton,
   210 Or App 104, 150 P3d 47 (2006) ...................................................................................................... 48, 81
State v. Illig-Renn,
   341 Or 228, 142 P3d 62 (2006) .................................................................................................. 17, 18, 37, 46
State v. Jacob,
   208 Or App 62, 145 P3d 212 (2006) ...................................................................................................... 78, 98
State v. Johnson,
   210 Or App 733, ___ P3d ___ (2007) .................................................................................................... 24, 25
State v. Johnson,
   340 Or 319, 131 P3d 173 (2006) .................... 5, 13, 16, 23, 25, 31, 33, 34, 36, 43, 48, 59, 61, 64, 69, 71, 83
State v. Kaufman,
   205 Or App 10, 132 P3d 668,
   rev den 340 Or 673 (2006) ............................................................................................................... 74, 78, 85
State v. Ketchum,
   206 Or App 635, 138 P3d 860,
   rev den 341 Or 450 (2006) ..................................................................................................... 9, 10, 24, 46, 88
State v. Knight,
   209 Or App 562, 149 P3d 164 (2006),
   Rev Allowed 342 Or 473 (2007) ............................................................................................................. 31, 32
State v. Krueger,
   208 Or App 166, 144 P3d 1007 (2006) ............................................................................................ 17, 18, 56
State v. Lane,
   341 Or 433, 144 P3d 927 (2006) ............................................................................................................ 29, 50
State v. Lazaro-Martinez,
   207 Or App 526, 142 P3d 120 (2006) ..........................................................................................................82
State v. Litscher,
   207 Or App 565, 142 P3d 549 (2006) .............................................................................................. 10, 13, 20
State v. Liviu,
   209 Or App 249, 147 P3d 371 (2006) ............................................................................................................5
State v. Lonergan,
   210 Or App 155, 149 P3d 1215 (2006) ........................................................................................................29
State v. Longo,
   341 Or 580, 148 P3d 892 (2006) .......................................................................................... 15, 22, 25, 33, 47
State v. Luers,
   211 Or App 34, ___ P3d ___ (2007) .............................................................................. 11, 47, 65, 81, 86, 96
State v. Makuch/Reisterer,
   340 Or 658, 136 P3d 35 (2006) .............................................................................................. 4, 61, 64, 71, 92



                                                                         xii
State v. Mastin,
   205 Or App 528, 134 P3d 1052 (2006) ........................................................................................................10
State v. Maul,
   205 Or App 14, 132 P3d 665,
   rev den 341 Or 80 (2006) .............................................................................................................................26
State v. McBeth,
   209 Or App 546, 149 P3d 212 (2006) .............................................................................................. 30, 34, 95
State v. McCathern,
   211 Or App 171, ___ P3d ___ (2007) .................................................................................................... 39, 50
State v. McCollister,
   210 Or App 1, 150 P3d 7 (2006) ............................................................................................................ 73, 76
State v. McDowell,
   211 Or App __, __ P3d __ (March 14, 2007)......................................................................................... 62, 65
State v. McFarland,
   210 Or App 744, ___ P3d ___ (2007) ..........................................................................................................93
State v. McHenry,
   205 Or App 310, 134 P3d 1016 (2006) .............................................................................................. 6, 27, 58
State v. Meharry,
   342 Or 173, 149 P3d 1155 (2006) ................................................................................................................65
State v. Mendez,
   __ Or App __, __ P3d __ (2007) ...................................................................................................... 74, 75, 82
State v. Milburn,
   205 Or App 205, 134 P3d 969 (2006) .................................................................................................... 93, 98
State v. Miles,
   208 Or App 252, 145 P3d 242 (2006) ...................................................................................................... 8, 36
State v. Miller,
   208 Or App 424, 144 P3d 1052
   adh’d to on recon 210 Or App 476, 149 P3d 1251 (2006) .................................................................... 29, 36
State v. Mojarro-Sandoval,
   208 Or App 178, 144 P3d 996,
   rev den 342 Or ___ (2006) ...........................................................................................................................56
State v. Moon,
   207 Or App 402, 142 P3d 105,
   rev den 342 Or 46 (2006) ............................................................................................................. 5, 73, 75, 84
State v. Mosley,
   206 Or App 172, 136 P3d 73 (2006) ..............................................................................................................6
State v. Murray,
   340 Or 599, 136 P3d 10 (2006) ....................................................................................................................48
State v. Nofzinger,
   206 Or App 588, 138 P3d 57 (2006) .............................................................................................................3
State v. Nordloh,
   208 Or App 309, 144 P3d 1013 (2006) ........................................................................................................70



                                                                          xiii
State v. Obeidi,
   ___ Or App ___, ___ P3d ___ (March 14, 2007).........................................................................................13
State v. Oddo,
   205 Or App 588, 135 P3d 344 (2006) .................................................................................................... 13, 89
State v. Owen,
   209 Or App 662, 149 P3d 299 (2006) .................................................................................................... 81, 84
State v. Owens,
   207 Or App 31, 139 P3d 984 (2006) ...................................................................................................... 32, 33
State v. Phillips,
   206 Or App 90, 135 P3d 461,
   rev den 341 Or 548 (2006) ............................................................................................................... 14, 76, 85
State v. Pitt,
   209 Or App 270, 147 P3d 940 (2006) .................................................................................................. 5, 8, 36
State v. Poitra,
   206 Or App 207, 136 P3d 87,
   rev den 341 Or 245 (2006) .........................................................................................................................6, 9
State v. Powell,
   209 Or App 255, 147 P3d 933 (2006) ..........................................................................................................57
State v. Ragland,
   210 Or App 182, 149 P3d 1254 (2006) .................................................................................................. 57, 97
State v. Ramirez,
   207 Or App 1, 139 P3d 981 (2006),
   rev allowed 342 Or 256 (2007) ....................................................................................................................84
State v. Randant,
   341 Or 64, 136 P3d 1113 (2006) ........................................................................................................ 7, 15, 59
State v. Renner,
   207 Or App 528, 142 P3d 1078 (2006) ........................................................................................................82
State v. Rhoades,
   210 Or App 280, 149 P3d 1259 (2006) ...................................................................................... 76, 79, 83, 86
State v. Robertson,
   207 Or App 464, 142 P3d 113,
   rev den 342 Or 254 (2006) ................................................................................................................... 2, 3, 11
State v. Roble-Baker,
   340 Or 631, 136 P3d 22 (2006) .......................................................................................................... 4, 15, 29
State v. Rodriguez-Castillo,
   210 Or App 479, 151 P3d 931 (2007) ..........................................................................................................34
State v. Roeder,
   209 Or App 199, 147 P3d 363 (2006) ..........................................................................................................38
State v. Romanov,
   210 Or App 198, 149 P3d 1224 (2006) .................................................................................................. 14, 26
State v. Rowe,
   210 Or App 66, 150 P3d 48 (2006) ..............................................................................................................96



                                                                          xiv
State v. Ry/Guinto,
   211 Or App __, __ P3d __ (March 14, 2007)...............................................................................................66
State v. Sandoval,
   ___ Or ___ (March 29, 2007).......................................................................................................................44
State v. Satchell,
   209 Or App 809, 150 P3d 4 (2006) ..............................................................................................................16
State v. Sauer,
   205 Or App 428, 134 P3d 1050,
   rev den 341 Or 141 (2006) ..................................................................................................................... 78, 92
State v. Saunders,
   211 Or App 73, ___ P3d ___ (2007) ............................................................................................................16
State v. Savage,
   208 Or App 472, 144 P3d 1063 (2006) ........................................................................................................17
State v. Scatchard,
   208 Or App 315, 145 P3d 237,
   rev den 342 Or 254 (2006) ...........................................................................................................................93
State v. Shaff,
   209 Or App 68, 146 P3d 389 (2006),
   rev allowed 342 Or ___ (March 1, 2007) ................................................................................................. 8, 16
State v. Shank,
   206 Or App 280, 136 P3d 101 (2006) ................................................................................................ 2, 59, 83
State v. Siegel,
   206 Or App 461, 136 P3d 1214 (2006) ........................................................................................................90
State v. Soreng,
   208 Or App 259, 145 P3d 195 (2006) ..........................................................................................................83
State v. Soto-Nunez,
   211 Or App __, __ P3d __ (March 28, 2007)......................................................................................... 79, 84
State v. Stalder,
   205 Or App 126, 133 P3d 920,
   rev den 340 Or 673 (2006) .............................................................................................................................6
State v. Starr,
   210 Or App 409, 150 P3d 1072 (2007) ..........................................................................................................2
State v. Steele,
   205 Or App 469, 134 P3d 1054 (2006) ........................................................................................................85
State v. Stirton,
   207 Or App 54, 138 P3d 974 (2006) ..............................................................................................................2
State v. Stock,
   209 Or App 7, 146 P3d 393 (2006) .................................................................................................. 62, 69, 70
State v. Styron,
   210 Or App 458, 150 P3d 1071 (2007) ........................................................................................................82
State v. Tannehill,
   341 Or 205, 141 P3d 584 (2006) ............................................................................................................ 39, 92



                                                                           xv
State v. Tanner,
   210 Or App 70, 150 P3d 31 (2006) ........................................................................................................ 73, 77
State v. Taylor,
   207 Or App 649, 142 P3d 1093 (2006),
   rev den 342 Or 299 (2007) ............................................................................................................... 45, 49, 59
State v. Thomas,
   204 Or App 109, 129 P3d 212,
   on recon 205 Or App 399, 134 P3d 1038,
   rev den 340 Or 673 (2006) ..................................................................................................................... 78, 85
State v. Thompkin,
   341 Or 368, 143 P3d 530 (2006) ..................................................................................................................93
State v. Tiner,
   340 Or 551, 135 P3d 305 (2006) .............................................................................. 16, 30, 57, 61, 80, 86, 89
State v. Torres,
   206 Or App 436, 136 P3d 1132 (2006) .................................................................................................... 9, 34
State v. Torres,
   207 Or App 355, 142 P3d 99 (2006) ........................................................................................................ 1, 46
State v. Trujillo,
   207 Or App 344, 142 P3d 85 (2006) ............................................................................................................83
State v. Turner,
   211 Or App 96, __ P3d __ (2007) .......................................................................................................... 80, 86
State v. Tweed,
   205 Or App 539, 134 P3d 1047,
   rev den 341 Or 80, 450 (2006) .....................................................................................................................95
State v. Vasquez-Escobar,
   211 Or App 115, __ P3d __ (2007) ..............................................................................................................74
State v. Vazquez-Escobar,
   211 Or App 115, ___ P3d ___ (2007) .................................................................................................... 28, 37
State v. Vedder,
   206 Or App 424, 136 P3d 1128 (2006),
   rev den 342 Or 417 (2007) ...........................................................................................................................77
State v. Vega,
   206 Or App 668, 139 P3d 260,
   rev den 341 Or 367 (2006) ..................................................................................................................... 50, 97
State v. Warner,
   342 Or 361, ___ P3d ___ (2007) ............................................................................................................ 38, 95
State v. Werdell,
   202 Or App 413, 122 P3d 86 (2005),
   rev’d on other grounds 340 Or 590, 136 P3d 17 (2006) .................................................................. 19, 42, 97
State v. Werdell,
   340 Or 590, 136 P3d 17 (2006) ....................................................................................................................92
State v. White,
   211 Or App 210, ___ P3d ___ (February 28, 2007).................................................................. 25, 46, 66, 80



                                                                          xvi
State v. Williams,
   206 Or App 691, 138 P3d 885,
   rev den 342 Or 117 (2006) ................................................................................................... 10, 27, 58, 73, 94
State v. Willis,
   210 Or App 364, 150 P3d 49 (2006) ..............................................................................................................5
State v. Wood,
   208 Or App 329, 144 P3d 1005 (2006) ........................................................................................................81
State v. Wood,
   210 Or App 126, 149 P3d 1265 (2006) .................................................................................................. 61, 68
State v. Woodman,
   341 Or 105, 138 P3d 1 (2006) .......................................................................................................... 42, 45, 51
State v. Yong,
   206 Or App 522, 138 P3d 37,
   rev den 342 Or 117 (2006) ......................................................................................................... 12, 31, 33, 82
State v. Zamora-Martinez,
   210 Or App 22, 150 P3d 25 (2006) ................................................................................................................3
Stogsdill v. Board of Parole,
   342 Or 332 (2007) ........................................................................................................................................52
United States v. Gonzalez-Lopez,
  548 US __, 126 S Ct 2557, 165 L Ed 2d 409 (2006) ............................................................................... 7, 58
United States v. Grubbs,
  547 US 90, 126 S Ct 1494, 164 L Ed 2d 195 (2006) ...................................................................................63
Ward v. Hall,
  206 Or App 225, 136 P3d 76,
  rev den 341 Or 245 (2006) ...........................................................................................................................43
Ware v. Hall,
  342 Or 444, ___ P3d ___ (2007) ..................................................................................................................54
Washington v. Recuenco,
  548 US __, 126 S Ct 2546, 165 L Ed 2d 466 (2006) ................................................................... 4, 11, 73, 85
Whorton v. Bockting,
  549 US ___ (05-595) (February 28, 2007) ....................................................................................... 35, 40, 54
Woodford v. Ngo,
  548 US __, 126 S Ct 2378, 165 L Ed 2d 368 (2006) ...................................................................................43
Youngblood v. West Virginia,
  547 US __, 126 S Ct 2188, 165 L Ed 2d 269 (2006) ...................................................................................25
Zedner v. United States,
  547 US __, 126 S Ct 1976, 164 L Ed 2d 749 (2006) ............................................................................... 7, 89




                                                                            xvii
ACCOMPLICES

         State v. Black, 208 Or App 719, 145 P3d 367 (2006). [1] ―In reviewing the trial court‘s refusal to
give a requested instruction, we view the record in the light most favorable to establishment of the facts
necessary to require that instruction.‖ [2] Because a rational juror could have concluded that there was
probable cause to believe that at least one witness could have been charged (and thus was an ―accomplice
witness), the trial court erroneously refused to give UCrJI 1053-1056, which provide the definition for
―accomplice witness‖ and which state both that corroboration is required and that the jury should view
accomplice testimony with distrust. [3] In this case, refusal to give the instruction was harmless because
there was corroboration, and because the witness testimony was, in primary part, cumulative to the
inculpatory testimony of another witness.

         State v. Torres, 207 Or App 355, 142 P3d 99 (2006). [1] A person who is named in the indictment
as a co-defendant is, as a matter of law, an ―accomplice,‖ for the purpose of the rules that apply to
accomplice testimony. [2] Although there need not be independent corroborating evidence for every material
fact necessary to be established to sustain a conviction for the offense, corroborating evidence must ―fairly
and legitimately tend[] to connect the defendant with the commission of the crime.‖ [3] Testimony
connecting defendant to the co-defendant, although not to the criminal activity, was insufficient.
[4] Testimony connecting defendant to the transport of motorcycles that a co-defendant removed from a barn
was insufficient corroboration of the burglary charge, which required that defendant entered the barn with the
intent to commit a crime therein, or that he aided and abetted an entry by his co-defendant.

ACCUSATORY INSTRUMENTS
     See also ―Demurrers,‖ below.

         State v. Hankins, 342 Or 258, 151 P3d 149 (2007). Defendant was charged with delivering
marijuana to a minor in violation of former ORS 475.995 (1999). That offense is presumptively a Class A
felony, but only if the defendant is over 18 years old and at least three years older than a minor. Otherwise,
the offense is a violation offense only. The caption on the charge stated ―Victim Juv 3 Years Younger Def,‖
but the body of the charge did not contain that language. And neither the caption nor the charge alleged that
defendant was over 18 years old at the time of the delivery. Defendant did not demur to the indictment, but,
at the close of the state‘s evidence, moved for a judgment of acquittal on the Class A felony charge, arguing
that the indictment failed to allege the age-related factors necessary to constitute that offense. Held: [1] A
challenge to an indictment must be made by demurrer, not a motion for a judgment of acquittal. [2] A
demurrer under ORS 135.630(4) may be predicated on an argument that, although the indictment states some
offense, the facts stated do not constitute the offense that the indictment purports to charge. [3] The trial
court acted within its discretion when it refused to allow defendant to raise a demurrer mid-trial.
[4] Alternatively, defendant could have raised the issue in a motion in arrest of judgment after trial. And
although he made a post-trial motion that arguably could have been construed as a motion in arrest of
judgment, he did not assign error to that ruling, and thus the appellate court had no authority to remand for
the purpose of requiring the trial court to treat the post-trial motion as a motion in arrest of judgment.

        State v. Clayton, 210 Or App 442, 150 P3d 1078 (2007). The fact that the defendant had a prior
conviction for stalking or violation of a court stalking protective order (VSPO) is an element of the crime of
felony VSPO that must be alleged in the accusatory instrument and proved at trial.

APPEALS
     See also ―Sentencing: appeal,‖ below.

        Appeals: appealable orders, filing notice of appeal, appellate jurisdiction

        Engweiler v. Board of Parole, 340 Or 361, 133 P3d 910 (2006). In 1990, petitioner was convicted
2

of aggravated murder for a crime he committed when he was 15 years old, and the court imposed an
indeterminate life sentence. The parole board established a 480-month ―prison term‖ and set a ―murder
review date‖ in 2030. Petitioner petitioned for judicial review under ORS 144.335 (1999), and the Court of
Appeals dismissed. Held: Affirmed. [1] To the extent that petitioner may have a right to have the board
conduct a hearing under ORS 144.120(1)(a) (1989) to set an initial parole-release date, this judicial-review
proceeding may not be used to enforce that right — he will need to prosecute a mandamus or habeas corpus
proceeding for that purpose. [2] The board‘s order is not subject to judicial review under ORS 144.335(3)
(1990), because it is an order ―relating to a parole consideration hearing date.‖

         State v. Starr, 210 Or App 409, 150 P3d 1072 (2007). After she was convicted at trial, but before
sentencing, defendant filed a motion in arrest of judgment. The trial court orally denied the motion as
untimely filed, sentenced defendant, and entered a judgment of conviction and sentence. It did not but did
not enter a written order denying the motion. Although defendant appealed within 30 days after the entry of
the judgment, the Court of Appeals dismissed the appeal on the ground that the motion was still pending.
After more than 55 days had elapsed since the filing of the motion in arrest of judgment, defendant filed a
second notice of appeal, arguing that a motion in arrest of judgment, like a motion for a new trial, is ―deemed
denied‖ if the trial court does not rule within 55 days. Held: Appeal dismissed as premature. There is no
established time period within which a trial court must rule on a motion in arrest of judgment; moreover,
defendant‘s premature appeal deprived the trial court of jurisdiction to rule on the motion for the time period
during which the appeal was pending. Thus, the judgment remains nonappealable until the trial court enters
a written order disposing of the motion.

         State v. Robertson, 207 Or App 464, 142 P3d 113, rev den 342 Or 254 (2006). ORS 19.235
establishes a procedure by which a trial court may, notwithstanding the filing of a notice of appeal, make a
summary determination as to whether the decision being appealed is an appealable order. The statute applies
in both civil and criminal cases. In this case, the trial court did not commit error by proceeding through entry
of judgment after making the determination that defendant had not appealed from an appealable order.

         State v. Shank, 206 Or App 280, 136 P3d 101 (2006). Defendant appealed from a limited judgment
that required her, per ORS 151.487 to contribute $127 toward the cost of her court-appointed counsel, in a
criminal case in which the charges ultimately were dismissed. Held: [1] The limited judgment is appealable
under ORS 19.205(5) as an order entered in a special statutory proceeding, and the appeal is not subject to
the $250 limit in ORS 19.205(4). [2] But the State Public Defender had no authority to represent defendant,
because it was not a judgment ―in a criminal action‖ under ORS 138.020, and hence defendant was not
entitled to court-appointed counsel for the appeal.

         State v. Allen, 205 Or App 219, 134 P3d 976 (2006). Defendant moved for a dismissal of his DUII
charge complaining that the delay of almost 19 months deprived him of a speedy trial. The court denied that
motion and found him guilty, but the court did not enter a written order denying the motion until after
defendant had filed his notice of appeal. Held: Vacated and remanded. Because of the pending appeal, ―the
trial court lacked jurisdiction to enter that order.‖ But the court‘s ―de facto denial‖ of the motion ―antedated
the filing of the notice of appeal and is subject to our review.‖

        Appeals: filing fees

         State v. Stirton, 207 Or App 54, 138 P3d 974 (2006). A circuit order denying a motion for a waiver
of filing fees under ORS 21.605(1) in an appeal from violation convictions was an abuse of discretion; the
material that showed defendant‘s indigence was uncontested and the court offered no explanation for the
denial of motion.
                                                                                                           3

        Appeals: dismissal of appeal

        State v. Fettel, 210 Or 404, 150 P3d 1076 (2007). ORAP 8.05(3) permits the court to dismiss an
appeal if the defendant has escaped or absconded from supervision unless the defendant has ―surrendered‖
before the motion is decided. In this context, a defendant surrenders only if he voluntarily has returned to
custody, and it is his burden to make that showing. Thus, here, where the state made a prima facie showing
that, more likely than not, the defendant had absconded from supervision, it was insufficient that defendant
offered evidence that he was in the custody of a county jail; he offered no evidence that he was in custody
because he surrendered.

         State v. Zamora-Martinez, 210 Or App 22, 150 P3d 25 (2006). Defendant originally was placed on
probation with a special condition that required him not to unlawfully return to the United States and
required him to contact his probation officer if he legally returned. Defendant was later deported and then
returned to the United States. He did not report to a probation officer, and later admitted to an unspecified
probation violation. After defendant filed a notice of appeal, the state moved to dismiss the appeal based on
ORAP 8.05(3), arguing that defendant ―escape[d] or abscond[ed]‖ from supervision. Held: Motion denied.
The special probation condition required defendant to report to supervision only if he ―lawfully‖ returned to
the United States, and the record does not show that defendant lawfully returned. Thus, the state failed to
establish that defendant absconded or escaped from supervision, and the appellate court declined to exercise
its inherent authority to dismiss the appeal.

         State v. Nofzinger, 206 Or App 588, 138 P3d 57 (2006) (per curiam). The Court of Appeals
dismissed defendant‘s appeal based on ORAP 8.05(3) because she had failed to report to her probation
officer as required by the judgment and a warrant had been issued for her arrest. The fact that she
subsequently was arrested and hence was back before the court does not justify retention of her appeal.

         State v. Ford, 205 Or App 506, 134 P3d 959 (2006). The state moved to dismiss defendant‘s appeal
under ORAP 8.05(3) on the ground that he had ―absconded from the jurisdiction of the court and was a
fugitive from justice‖ based on evidence that a warrant was outstanding for his arrest based on allegations
that he had failed to comply with the conditions of his probation. Held: Motion denied. [1] In order to
―escape or abscond from custody or supervision,‖ an appellant ―must evade the legal process of the court by
fleeing, hiding himself, or making some conscious effort to avoid custody or supervision.‖ Merely failing to
comply with a condition of probation, in itself, does not constitute escaping or absconding from custody or
supervision. ―The mere existence of an unserved warrant does not establish that a person has absconded.‖
[2] Defendant had not absconded — although he had failed to comply with alcohol treatment or to make
financial payments, he was not required to any supervisory authority and he was in contact with the court.
         See also State v. Baker, 205 Or App 514, 134 P3d 962 (2006) (same; although defendant was not
making financial payments to court and had failed to appear at a show-cause hearing, that was only because
he could not afford to travel, and he otherwise was in contact with the court).

        Appeals: motions filed in the appellate courts

        State v. Robertson, 207 Or App 464, 142 P3d 113, rev den 342 Or 254 (2006). ORAP 7.15(3),
which precludes a party, without leave of the court, from resubmitting a motion that previously was denied
before submission of the case, contains an exception for challenges to the court‘s jurisdiction. In addition, it
does not preclude the appellate court from sua sponte reconsidering a prior decision on a motion.

        Appeals: record on appeal

         State v. Barber, 209 Or App 262, 147 P3d 915 (2006). [1] The Court of Appeals was entitled to take
judicial notice of a judicially-noticeable fact for the first time on appeal, under OEC 201(f), which provides
4

that ―[j]udicial notice may be taken at any stage of the proceeding.‖ [2] The court‘s own records qualify as
sources for judicially noticed facts under OEC 201(b), which states that a judicially noticed fact must be one
not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of
the trial court; or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot
be questioned.

        Appeals: issues reviewable

         State v. Allen, 205 Or App 219, 134 P3d 976 (2006). Defendant moved for a dismissal of his DUII
charge complaining that the delay of almost 19 months deprived him of a speedy trial. The court denied that
motion and found him guilty, but the court did not enter a written order denying the motion until after
defendant had filed his notice of appeal. Held: Vacated and remanded. Because of the pending appeal, ―the
trial court lacked jurisdiction to enter that order.‖ But the court‘s ―de facto denial‖ of the motion ―antedated
the filing of the notice of appeal and is subject to our review.‖


        Appeals: preservation of error, ―plain error‖ review
        See also ―Sentencing: appeal — reviewability,‖ below.

          Washington v. Recuenco, 548 US __, 126 S Ct 2546, 165 L Ed 2d 466 (2006). Based on an incident
in which he threatened his wife with a firearm, defendant was charged with second-degree assault ―with a
deadly weapon.‖ Although the jury was instructed that a firearm is a deadly weapon, it did not specifically
find, by its guilty verdict, that he used a firearm. The sentencing court imposed an enhanced sentence based
on its finding that defendant used a firearm. Based on the intervening decisions in Apprendi and Blakely, the
state supreme court vacated the sentence and remanded for resentencing without the firearm enhancement.
Held: Reversed and remanded. ―We have repeatedly recognized that the commission of constitutional error
at trial alone does not entitle a defendant to automatic reversal. Instead, most constitutional errors can be
harmless. If the defendant had counsel and was tried by an impartial adjudicator, there is a strong
presumption that any other constitutional errors that may have occurred are subject to harmless-error
analysis. Only in rare cases has this Court held that error is structural, and thus requires automatic reversal.
In such cases, the error necessarily renders a criminal trial fundamentally unfair or an unreliable vehicle for
determining guilt or innocence.‖ The error here is indistinguishable from the one in Neder v. United States,
527 Or 1 (1999), because under Blakely ―we have treated sentencing factors, like elements, as facts that have
to be tried to the jury and proved beyond a reasonable doubt.‖ Consequently, ―[f]ailure to submit a
sentencing factor to the jury, like failure to submit an element to the jury, is not structural error‖ and is
subject to harmless-error review.

        State v. Makuch/Reisterer, 340 Or 658, 136 P3d 35 (2006). By failing to raise a Fourth Amendment
claim in the Court of Appeals, defendants failed to preserve the claim for purposes of Supreme Court review.

         State v. Roble-Baker, 340 Or 631, 136 P3d 22 (2006). Defendant filed a motion to suppress all of
her statements to police based on her argument that she was in ―compelling circumstances‖ and did not
receive Miranda warnings, and the circuit court denied that motion. On appeal, she argued, alternatively,
that the circumstances became compelling at any of various points during her contact with police and that the
court should have suppressed at least some of her statements. The state argued, based on State v. Brown, 310
Or 347, 359 (1990), that defendant‘s motion did not preserve her argument. Held: The motion triggered the
state‘s burden to establish that defendant‘s statements were not compelled. Although, on appeal, defendant
identifies three alternative points at which she contended the circumstances became compelling, neither the
state‘s obligation nor the trial court‘s inquiry changed. Thus, she preserved her Miranda claim by moving to
suppress all statements.
                                                                                                           5

         State v. Johnson, 340 Or 319, 131 P3d 173 (2006). The Supreme Court refused to consider
defendant‘s complaints about access to legal materials because his counsel failed to follow through with the
trial court‘s direction to schedule a special hearing to consider those complaints.

         Hendricks v. Hill, 209 Or App 812, 149 P3d 318 (2006). Even assuming the state had the ability to
preserve a claim of error by filing a post-judgment objection to a grant of relief, the post-conviction court
committed plain error by granting relief based on an issue that was not alleged in the petition. The Court of
Appeals exercised its discretion to review the issue because the state‘s practical opportunity to respond to the
error -- which appeared for the first time in the judgment – was ―minimal or nonexistent.‖

         State v. Willis, 210 Or App 364, 150 P3d 49 (2006). Notwithstanding defendant‘s claim that he filed
a pre-hearing motion to exclude hearsay testimony in his probation-revocation hearing, he failed to preserve
the issue for appeal by failing to raise an objection or seek a ruling at any time during the hearing.

         State v. Pitt, 209 Or App 270, 147 P3d 940 (2006). [1] The victims‘ videotaped statements to the
Lane County Advocacy Center, which provides services related to child-abuse investigation, in the context of
a ―forensic interview,‖ were testimonial under Crawford, and were not meaningfully different from those at
issue in State v. Mack, 337 Or 586 (2004). [2] Admission of the testimony was ―plain error,‖
notwithstanding that Crawford had not yet been decided. [3] The error was not harmless because the
victims‘ credibility was the linchpin of the case and the videotapes allowed the jury to make a first-hand
assessment of their credibility.

         State v. Barber, 209 Or App 262, 147 P3d 915 (2006). Although it was plain error to conduct a
stipulated-facts trial in the absence of a written jury waiver, the court declined to exercise its discretion to
review the error because: (1) defendant‘s counsel proposed the stipulated-facts trial and defendant
knowingly participated in that process; and (2) defendant previously had submitted written jury waivers in
other cases, and thus clearly was aware that he had a right to a jury trial and knowingly waived it in this case.

         State v. Liviu, 209 Or App 249, 147 P3d 371 (2006). [1] Defendant‘s motion for a judgment of
acquittal on several sexual offenses referred only to general inconsistencies in the testimony before the trial
court; therefore, it did not preserve his legal arguments that certain elements of the crimes were not
supported by evidence at trial. [2] Defendant‘s argument at sentencing that the court was precluded from
imposing departure sentences because the state had failed to allege departure factors in the indictment did not
preserve for appeal the argument that he was entitled to jury findings on those facts; under Perez and
Gornick, his claims are not reviewable as ―plain error.‖

        State v. Avera, 208 Or App 625, 145 P3d 288 (2006), rev den 342 Or 299 (2007). Pro se litigants
are bound by the same preservation rules that bind all other parties.

       State v. Moon, 207 Or App 402, 142 P3d 105, rev den 342 Or 46 (2006). In light of State v.
Gornick, defendant‘s unpreserved Blakely-based objection to the upward-departure sentence on his
kidnapping conviction is not reviewable as ―plain error.‖

        State v. Garcia, 206 Or App 745, 138 P3d 927 (2006). Defendant challenged the trial court‘s denial
of his motion to exclude an audiotape that contained several 911 calls made by the victim. Because
defendant challenged the admission of the entire tape recording and did not distinguish among the various
recorded statements, the trial court‘s ruling admitting the tape was upheld because at least part of the tape
was admissible.

       State v. Derschon, 206 Or App 574, 138 P3d 30, rev den 341 Or 392 (2006). Defendant and Davis
were charged with multiple crimes based on an armed home-invasion robbery they committed together.
Davis was caught and interrogated, and he confessed and identified defendant as his accomplice. Davis
6

pleaded guilty but refused to testify at defendant‘s trial. Without any objection from defendant, the trial
court admitted Davis‘s statements identifying defendant under OEC 804(3)(c). On appeal, defendant
claimed that that was plain error in light of Crawford. Held: Affirmed. [1] ―The error is plain because it is
beyond dispute that Davis‘s statement inculpating defendant, made in response to police interrogation, was
testimonial, * * * and that defendant had had no opportunity to cross-examine him.‖ [2] ―However, we
decline to exercise our discretion because the gravity of error in admitting the erroneous testimonial hearsay
was insignificant‖ in light of the other, overwhelming evidence that defendant was the accomplice. ―Had the
proper objection been made during trial, the likelihood that the state would have proceeded without the
hearsay evidence is especially pronounced.‖
         Note: The court acknowledged that State v. Gornick may require a different analysis of the plain-
error issue, but it held that any error was essentially harmless anyway.

         State v. Poitra, 206 Or App 207, 136 P3d 87, rev den 341 Or 245 (2006). Although defendant‘s
unpreserved Crawford-based challenge to the admission of hearsay evidence (viz., taped police interview of
defendant‘s unavailable accomplice) is a claim of plain error, the Court of Appeals refused to exercise its
discretion to review it. The gravity of the error was not significant because the remainder of the evidence
added little to the other evidence showing defendant‘s guilt and ―had defendant challenged its admission on
constitutional grounds, the state might well have elected to forgo use of the tape.‖

         State v. Mosley, 206 Or App 172, 136 P3d 73 (2006). The trial court admitted as evidence a CD
offered by defendant, and it allowed one track to be played during trial, but it ruled that it could not be played
to the jury during closing arguments ―for reasons of time,‖ noting that the jurors could listen to it during
deliberations. Defendant challenged that ruling on appeal. Held: Because defendant never asked the trial
court to allow him to play the CD during his argument, he cannot complain about the trial court‘s decision
not to do so.

        Alexander v. Board of Parole, 205 Or App 443, 134 P3d 449, rev den 341 Or 449 (2006). Petitioner
was sentenced as a dangerous offender in 1988, and the board in 2002 deferred his parole-consideration date
for another 24 months. Held: Affirmed. Because petitioner failed to raise in his administrative review
request a claim that he now asserts on judicial review, he failed to exhaust his administrative remedies and
the Court of Appeals declined to review that claim, ORS 144.335.

         State v. Stalder, 205 Or App 126, 133 P3d 920, rev den 340 Or 673 (2006). The trial court found
that child witness was not competent and, pursuant to OEC 803(18a)(b), admitted his statement to an officer.
Although defendant objected that the statement was not admissible under the rule, he did not assert a
constitutional confrontation objection. On appeal, he raised a Crawford claim. Held: Affirmed.
[1] Defendant‘s Crawford objection is not preserved. [2] The court declined to review the claim as ―plain
error‖ because the state may have proved the point by other means if defendant had raised that objection.

        Appeals: ―right for the wrong reason‖ affirmance

        State v. Gortler, 207 Or App 321, 142 P3d 74 (2006). Although the court could have found
persistent involvement based on facts other than those on which it relied, the prosecutor did not make that
argument and the sentencing court did not rely on it at sentencing. ―We will not substitute our own findings
for those of the trial court.‖

        State v. McHenry, 205 Or App 310, 134 P3d 1016 (2006). After defendant initially refused without
explanation to submit to a breath test, the officer noted the suspension period and asked him a second time if
he would consent to a breath test. Defendant responded, ―No, I‘m not blowing until I talk to my attorney,‖
and the officer treated that as a refusal. The trial court denied defendant‘s motion to suppress his refusal
concluding that his initial refusal was final. Held: Reversed. Defendant‘s response constituted a request to
consult with a lawyer, and the officer‘s failure to provide him with a reasonable opportunity to obtain legal
                                                                                                           7

advice before deciding whether to submit to a breath test requires exclusion of his refusal. The Court of
Appeals refused to consider the state‘s argument that defendant‘s response ―did not constitute a request to
consult with counsel‖ because the prosecutor did not make that argument below and, if he had, ―defendant
might have developed a different factual record.‖

        Appeals: claims of error that may be moot, harmless, or waived
        See also ―Sentencing: appeal — claims of error that may be moot, harmless, or waived‖ below.

          United States v. Gonzalez-Lopez, 548 US __, 126 S Ct 2557, 165 L Ed 2d 409 (2006). Defendant‘s
family retained Fahle, a local attorney, to represent defendant on felony charges in federal court, but
defendant then retained Lowe, an out-of-state attorney to assist. After initially allowing Lowe to assist, the
court denied his motion for admission pro hac vice and precluded him from assisting, denying defendant‘s
request that Lowe be his sole attorney at trial. Defendant eventually retained a third attorney to represent
him at trial, and he was found guilty. On appeal, the Eighth Circuit reversed and remanded, holding that the
district court erred in barring Lowe and that the error was not subject to harmless-error review.
Held: Affirmed. An element of the right to counsel under the Sixth Amendment is ―the right of a defendant
who does not require appointed counsel to choose who will represent him.‖ ―Where the right to be assisted
by counsel of one‘s choice is wrongly denied, therefore, it is unnecessary to conduct an ineffectiveness or
prejudice inquiry to establish a Sixth Amendment violation.‖ So, ―erroneous deprivation of the right to
counsel of choice, with consequences that are necessarily unquantifiable and indeterminate, unquestionably
qualifies as structural error.‖

         Zedner v. United States, 547 US __, 126 S Ct 1976, 164 L Ed 2d 749 (2006). At a pretrial hearing
in a federal-court prosecution, the defendant executed, at the trial court‘s suggestion, a ―for all time‖ waiver
of the federal speedy-trial act, 18 USC § 3161(c)(1). He was convicted at a trial held six years later.
Held: Reversed. [1] Defendant‘s waiver was ineffective because a defendant may not prospectively waive
the provisions of the Act. [2] Defendant‘s execution of the legally ineffective waiver did not estop him from
moving for dismissal under the Act. [3] Because the Act specifically requires the court to make an ―ends of
justice‖ finding at the time of a set over, which the court did not do in this case, the judgment cannot be
affirmed on the basis of harmless error.

          State v. Randant, 341 Or 64, 136 P3d 1113 (2006). Defendant repeatedly contacted detectives and
made statements about a murder, both before and after he was indicted and counsel was appointed. Before
the final two conversations, defendant expressly waived his Miranda rights. Detectives did not contact
defendant‘s lawyer before talking to him. Pretrial, defendant moved to suppress all of the statements. The
circuit court denied the motion and defendant was convicted. The Court of Appeals affirmed.
Held: Affirmed. Defendant‘s right to counsel under Article I, section 11, of the Oregon Constitution and the
Sixth Amendment was not violated. [1] If the right to counsel has attached, a defendant nonetheless may
initiate conversations with the detectives, and neither counsel‘s presence nor advance notice to counsel is
required. Unlike a situation in which the defendant wishes to waive counsel at trial, detectives are not
required to engage in any formal colloquy to determine whether a defendant wishes to waive counsel during
questioning. The Miranda warnings before the final two interviews were sufficient to establish that
defendant intended to waive counsel. [2] Because the earlier unwarned statements were merely cumulative
and less detailed than the later statements, the court did not decide whether the record showed a voluntary
waiver because any error in admitting the statements was harmless.

        State v. Cook, 340 Or 530, 135 P3d 260 (2006). Under the Confrontation Clause of the Sixth
Amendment as interpreted in Crawford v. Washington, 541 US 36 (2004), the codefendants‘ statements were
inadmissible, because although the declarants were unavailable, their statements were ―testimonial‖ and
defendant had no opportunity to cross-examine them. But the error in admitting the statements was harmless
beyond a reasonable doubt, because several other trial witnesses testified to substantially the same facts as
were in the hearsay statements, and the state‘s case against defendant was strong.
8


        State v. Becker, 211 Or App 1, ___ P3d ___ (2007). Assuming, without deciding, that the admission
of a CARES report was erroneous under Crawford, it was harmless; the content of the report ―does not reveal
any information that was not otherwise before the court through the testimony of other witnesses.‖

         State v. Pitt, 209 Or App 270, 147 P3d 940 (2006). [1] The victims‘ videotaped statements to the
Lane County Advocacy Center, which provides services related to child-abuse investigation, in the context of
a ―forensic interview,‖ were testimonial under Crawford, and were not meaningfully different from those at
issue in State v. Mack, 337 Or 586 (2004). [2] Admission of the testimony was ―plain error,‖
notwithstanding that Crawford had not yet been decided. [3] The error was not harmless because the
victims‘ credibility was the linchpin of the case and the videotapes allowed the jury to make a first-hand
assessment of their credibility.

         State v. Shaff, 209 Or App 68, 146 P3d 389 (2006), rev allowed 342 Or ___ (March 1, 2007).
[1] Although defendant was at his own residence when the officers arrived to perform a welfare check in
response to a report of a possible assault, the circumstances became ―compelling‖ during his conversation
with one officer while another officer checked on the victim of the alleged assault, because of the following
factors: (1) defendant was physically restrained by the presence of one officer in his front doorway while the
other contacted the victim; (2) coercive overtones, including the conduct, language, and repetitive
questioning by the questioning officer, and the conduct of the other officer in walking the victim past the
defendant (thus demonstrating her recent injuries) and separately questioning her; and (3) the questioning
officer confronted defendant with misstatements of what the victim had reported to the other officer, which
increased the likelihood that a reasonable person would feel a compulsion to respond to the accusations.
[2] Admission of the statement was not harmless because it was defendant‘s sole admission in connection
with the charge.

         State v. Black, 208 Or App 719, 145 P3d 367 (2006). [1] ―In reviewing the trial court‘s refusal to
give a requested instruction, we view the record in the light most favorable to establishment of the facts
necessary to require that instruction.‖ [2] Because a rational juror could have concluded that there was
probable cause to believe that at least one witness could have been charged (and thus was an ―accomplice
witness), the trial court erroneously refused to give UCrJI 1053-1056, which provide the definition for
―accomplice witness‖ and which state both that corroboration is required and that the jury should view
accomplice testimony with distrust. [3] In this case, refusal to give the instruction was harmless because
there was corroboration, and because the witness testimony was, in primary part, cumulative to the
inculpatory testimony of another witness.

         State v. Barnes, 208 Or App 640, 145 P3d 261 (2006). [1] Defendant‘s offer of proof, which
included a lay witness‘s testimony that the victim appeared to be ―coming down‖ from the effects of
methamphetamine use, was sufficient to preserve his argument on appeal that the court erroneously refused
to permit evidence that the victim was ―under the influence of‖ methamphetamine. [2] A layperson‘s
opinion that another person is under the influence of methamphetamine is admissible as long as it is
rationally based on the layperson‘s perceptions. OEC 701. It is not necessary that the characteristics
observed were unique to people who are under the influence; rather, the witness‘s opinion may be rationally
based on observations that may be susceptible to more than one plausible interpretation (for example, the fact
that the person was ―irritable‖). [3] The fact that an expert opinion under OEC 702 might be useful to prove
a position does not mean that expert testimony is required, or that a lay opinion may not be offered to prove
the same point. [4] Because the excluded evidence had been offered to impeach the testimony of a witness
whose credibility was central to the state‘s case-in-chief, the exclusion of the evidence was not harmless.

         State v. Miles, 208 Or App 252, 145 P3d 242 (2006). [1] The victim‘s statements to a police officer
were testimonial because there was no ongoing emergency and the purpose of the interrogation was to
establish past events potentially relevant to a later prosecution; thus, admission of her out-of-court statements
                                                                                                           9

violated the Sixth Amendment Confrontation Clause. [2] Defendant‘s conviction for harassment could not be
upheld on harmless-error grounds, notwithstanding that defendant had admitted to pushing the victim,
because the prosecutor relied heavily on the victim‘s statements and thus their admission was not harmless
beyond a reasonable doubt.

         State v. Ketchum, 206 Or App 635, 138 P3d 860, rev den 341 Or 450 (2006). Defendant was
charged with first-degree sexual abuse and unlawful sexual penetration. Held: Reversed and remanded for
new trial. The trial court erroneously refused to give defendant‘s requested jury instruction regarding the
statutory defense that the penetration was ―part of a medically recognized treatment or diagnostic procedure.‖
The jury‘s guilty verdict on the sexual-abuse charges — which necessarily included a finding beyond a
reasonable doubt that he had touched the victim with an intent to sexually arouse — was not sufficient to
establish that the instructional error was harmless. Had the jurors been properly instructed that the state had
the burden to disprove the medical excuse, they may also have developed a reasonable doubt as to whether
defendant had a sexual purpose in touching the child. Moreover, because the charges were so ―intertwined,‖
the instructional error as the defense to the penetration charge may have affected the sexual-abuse conviction
as well and requires reversal of that conviction, too.

         State v. Derschon, 206 Or App 574, 138 P3d 30, rev den 341 Or 392 (2006). Defendant and Davis
were charged with multiple crimes based on an armed home-invasion robbery they committed together.
Davis was caught and interrogated, and he confessed and identified defendant as his accomplice. Davis
pleaded guilty but refused to testify at defendant‘s trial. Without any objection from defendant, the trial
court admitted Davis‘s statements identifying defendant. On appeal, defendant claimed that that was plain
error in light of Crawford. Held: Affirmed. Although ―[t]he error is plain because it is beyond dispute that
Davis‘s statement inculpating defendant, made in response to police interrogation, was testimonial, * * * and
that defendant had had no opportunity to cross-examine him,‖ * * * we decline to exercise our discretion
because the gravity of error in admitting the erroneous testimonial hearsay was insignificant‖ in light of the
other, overwhelming evidence that defendant was the accomplice.

        Baize v. Board of Parole, 206 Or App 548, 138 P3d 58 (2006). Because of the remand for a new
hearing before the board in compliance with the APA (in light of Larsen v. Board of Parole), petitioner‘s
various arguments concerning the sufficiency of the evidence and the standard of proof ―are moot.‖

         State v. Torres, 206 Or App 436, 136 P3d 1132 (2006). Defendant assaulted his fiancée in front of
her children and was charged with those crimes. The state failed to provide timely notice of its intent to rely
on statements of one of the children under OEC 803(18a)(b), but the court found good cause for admitting
them, and defendant was convicted based in part on those statements. Held: Reversed. Admission of the
child‘s statements was error and not harmless because they were pivotal in this ―swearing contest.‖

        State v. Poitra, 206 Or App 207, 136 P3d 87, rev den 341 Or 245 (2006). It was not necessary to
resolve defendant‘s claim that the police unlawfully seized an object during the execution of a warrant,
because the evidence at issue was merely cumulative, and the alleged error thus was harmless.

        Alexander v. Board of Parole, 205 Or App 443, 134 P3d 449, rev den 341 Or 449 (2006). Petitioner
was sentenced as a dangerous offender in 1988, and the board in 2002 deferred his parole-consideration date
for another 24 months. Held: Affirmed. Petitioner‘s challenge to the 2002 order is not moot in light of the
board‘s order in 2004 deferring his release for another 24 months.


        Appeals: remand for further proceedings, proceedings on remand
        See also ―Sentencing: appeal — remand for resentencing,‖ below.

        State v. Dahlen, 210 Or App 362, 149 P3d 1234 (2006). Because defendant‘s convictions were
10

based on his conditional guilty plea, ORS 135.335(3) requires the appellate court, as a remedy for his
successful challenge to a pretrial order on appeal, to remand to allow him the opportunity to decide whether
to adhere to his plea or to withdraw it.

        State v. Litscher, 207 Or App 565, 142 P3d 549 (2006). [1] To commit burglary, the defendant must
unlawfully enter a building with the intent to commit a ―crime‖ therein. Evidence that defendant entered
with the intent to violate a civil restraining order was insufficient to support the burglary conviction.
[2] Proper remedy is to vacate burglary conviction and enter judgment of conviction on lesser-included
offense of first-degree criminal trespass, the elements of which the jury necessarily found in convicting
defendant on the burglary charge.

         State v. Garcia, 206 Or App 745, 138 P3d 927 (2006). Defendant was convicted of two counts of
coercion and other charges arising from an incident in which he threatened to burn her house down if she
called for help and to kill her if she testified against him. She did testify against him at trial. The first
coercion count was based on his threats to induce her not to call 911; the second was based on his threats to
induce her not to testify against him. On the second count, defendant asked for instruction on the lesser-
included offense of attempted coercion, arguing that the victim had not in fact ―abstained from‖ testifying
against him at trial. The trial court denied the request. Held: Reversed and remanded for entry of a reduced
conviction. Because the jury could have concluded that defendant only attempted to induce the victim not to
testify but had failed to achieve that result, the instruction on attempted coercion should have been given.
Because defendant does not dispute that the evidence is sufficient to support a conviction on the lesser-
included offense of attempted coercion, the remedy is to reverse and remand for entry of conviction on the
lesser-included offense.

         State v. Williams, 206 Or App 691, 138 P3d 885, rev den 342 Or 117 (2006). Defendant was
arrested for DUII and refused to submit to a breath test. He moved to suppress the refusal on the ground that
he was denied an opportunity to consult privately with counsel in deciding whether to take the breath test.
He testified that he did not call counsel because he believed that the telephone at the station was monitored
and that his call would be recorded. The circuit court denied the motion, ruling that the mere possibility that
the phone call would be recorded would not violate his rights, and defendant was convicted at trial.
Held: Reversed and remanded. The trial court erroneously concluded that the fact that a phone is monitored
is irrelevant. Because the court did not make any finding on the ―crucial fact‖ of whether the phone line
actually was recorded, the remedy is to reverse the conviction and remand for the court to find whether the
phone line was recorded. If it was recorded, then the circuit court shall grant the motion to suppress and
order a new trial; if not, it shall deny the motion to suppress and reinstate defendant‘s conviction.

         State v. Ketchum, 206 Or App 635, 138 P3d 860, rev den 341 Or 450 (2006). Defendant was
charged with first-degree sexual abuse and unlawful sexual penetration. Held: Reversed and remanded for
new trial. The trial court erroneously refused to give defendant‘s requested jury instruction regarding the
statutory defense that the penetration was ―part of a medically recognized treatment or diagnostic procedure.‖
The jury‘s guilty verdict on the sexual-abuse charges — which necessarily included a finding beyond a
reasonable doubt that he had touched the victim with an intent to sexually arouse — was not sufficient to
establish that the instructional error was harmless. Because the charges were so ―intertwined,‖ the
instructional error as the defense to the penetration charge may have affected the sexual-abuse conviction as
well and requires reversal and a new trial of that conviction, too.

        State v. Mastin, 205 Or App 528, 134 P3d 1052 (2006). Defendant entered a conditional plea of
guilty pursuant to ORS 135.335(3) and appealed challenging the trial court‘s denial of his motion to
suppress. The Court of Appeals reversed in part and remanded, and the state moved for reconsideration
contending that the error was harmless. Held: Original opinion adhered to. ORS 135.335(3) provides that if
the defendant prevails on appeal, he ―may withdraw the plea.‖ To affirm based on a harmless-error analysis
would defeat that statutory right. Defendant may decide on remand that to withdraw his plea and go to trial,
                                                                                                           11

or he may choose, in light of his limited success on appeal, not to withdraw his plea.

         State v. Allen, 205 Or App 219, 134 P3d 976 (2006). Defendant moved for a dismissal of his DUII
charge complaining that the delay of almost 19 months deprived him of a speedy trial under ORS 135.747.
The court denied that motion and found him guilty, but the court did not enter a written order denying the
motion until after defendant had filed his notice of appeal. Held: Vacated and remanded. If the 4-month
delay that is at issue is attributable to the defendant, then the resulting delay of 11½ months is not, in itself,
―unreasonable‖ for purposes of ORS 135.747. Consequently, the court vacated the conviction and remanded
for further factfinding on which party was responsible for that delay.

        Appeals: law of the case

         State v. Robertson, 207 Or App 464, 142 P3d 113, rev den 342 Or 254 (2006). Law of the case
doctrine is essentially one of judicial economy and judicial discretion, and does not preclude an appellate
court from reconsidering prior decisions about its own jurisdiction.

        Appeal: Review by United States Supreme Court

          Kansas v. Marsh, 548 US __, 126 S Ct 2516, 165 L Ed 2d 429 (2006). Finding an evidentiary error,
the state supreme court reversed defendant‘s aggravated-murder conviction and death sentence and remanded
for a new trial. The court also invalidated the Kansas capital-sentencing statute on the ground that it creates
a presumption of death, in violation of the Eighth Amendment, by requiring the jury to return a death
sentence unless it finds that mitigating circumstances outweigh aggravating factors (i.e., death is required if
the jury finds the evidence in equipoise). Held: Reversed and remanded. Even though the state supreme
court remanded for a new trial on a separate issue, its ruling that the state statute is facially unconstitutional
is final and binding and hence the Court has jurisdiction to review that ruling under 28 USC § 1257.

         Washington v. Recuenco, 548 US __, 126 S Ct 2546, 165 L Ed 2d 466 (2006). Based on an incident
in which he threatened his wife with a firearm, defendant was charged with second-degree assault ―with a
deadly weapon.‖ Although the jury was instructed that a firearm is a deadly weapon, it did not specifically
find, by its guilty verdict, that he used a firearm. The sentencing court imposed an enhanced sentence based
on its finding that defendant used a firearm. Based on the intervening decisions in Apprendi and Blakely, the
state supreme court vacated the sentence and remanded for resentencing without the firearm enhancement.
Held: Reversed and remanded. The ruling at issue was not based on an adequate and independent state
ground — it was based on a ruling that a Blakely is not subject to harmless-error affirmance.
         See also Brigham City, Utah v. Stuart, 547 US __, 126 S Ct 1943, 164 L Ed 2d 650 (2006) (federal
issue properly was before Court because state courts based suppression order only on Fourth Amendment).

ARREST
     See also ―Stop & Frisk,‖ below.

ARSON AND RELATED OFFENSES

         State v. Luers, 211 Or App 34, ___ P3d ___ (2007). Defendant was convicted of various charges
based on his conduct in committing an arson at one location and an attempted arson at another. He also was
convicted of one count of first-degree criminal mischief and one count of attempted first-degree criminal
mischief at each location, and one count each of unlawful manufacture and possession of a destructive device
at each location. [1] The charges relating to the separate incidents were properly joined for trial under
ORS 132.560(2), and, because much of the evidence would have been admissible in both cases even in
separate trials, defendant did not show that he would suffer ―substantial prejudice‖ by the joint trial and thus
was not entitled to severance under ORS 132.560(3). [2] A gas can that had been modified to include a fuse
12

was a ―destructive device‖ within the meaning of ORS 166.382; the statute defines the term as any bomb
―with an explosive, incendiary or poison gas component. The gas can had an ―incendiary‖ component; the
state was not required to prove that it also carried an explosive charge. [3] Multiple convictions based on
alternative theories of first-degree arson (or attempted first-degree arson) arising from a single criminal
episode merge into a single conviction under ORS 161.067(1). Nor could separate convictions be justified
under ORS 161.067(2) (separate victims), because the ―victim‖ of the crime of arson is the property owner,
not the persons who were endangered by the fire. [4] The crimes of possession of a destructive device and
manufacture of a destructive device do not merge under ORS 161.067(1): each was a separate statutory
violation, and each offense includes an element that the other does not. [5] The trial court correctly denied
defendant‘s motion for a judgment of acquittal on the ground that state failed to present sufficient evidence to
support its allegation for purposes of a Measure 11 sentence under ORS 137.700(2)(b)(A) that the fire
―represented a threat of serious physical injury‖ to persons present when he set a fire at a car dealership at
night. The evidence showed that a security guard at the location had to pass the fire in order to call 911, and
that the fire was spreading quickly toward the building from which the guard was talking to the 911 operator.

ASSAULT, CRIMINAL MISTREATMENT, AND RELATED OFFENSES
     See also ―Sentencing: merger,‖ below.

         State v. Gatt, 210 Or App 117, 149 P3d 1220 (2006). The evidence did not support defendant‘s
conviction for felony fourth-degree assault for punching his son in the face and throwing him to the ground
on the theory that his son ―witnessed‖ the assault. Under ORS 163.160(3)(c), a fourth-degree assault is
elevated to a felony if the assault is ―committed in the immediate presence of, or is witnessed by, the
[defendant‘s] or the victim‘s minor child or stepchild or a minor child residing within the household of the
[defendant] or victim.‖ Given the context of the statute, the minor child cannot be both the victim of and the
witness to the assault.

         State v. Chapman, 209 Or App 771, 149 P3d 284 (2006). Defendant was charged with second-
degree assault on an aid-and-abet theory for his part in an assault on a victim that involved three other
assailants. At trial, he argued that he was entitled to a jury instruction on third-degree assault as a lesser-
included offense of second-degree assault. Defendant conceded that, under the statute, third-degree assault is
not a lesser-included offense of second-degree assault because its elements are not necessarily subsumed in
the elements of the greater offense, but argued that the indictment, which alleged that he ―acted with others,‖
sufficiently alleged that he was ―aided by another person actually present‖ within the meaning of third-
degree assault. Held: Defendant was not entitled to a third-degree assault instruction, because an allegation
that he ―acted with others‖ is not the equivalent of an allegation that he was aided by a person actually
present.

        State v. Yong, 206 Or App 522, 138 P3d 37, rev den 342 Or 117 (2006). In a domestic-assault case
in which the victim testified but minimized the defendant‘s conduct, the trial court properly admitted
evidence of defendant‘s prior assaults on this victim and his former wife. That evidence was admissible
under OEC 404(3), even though identity was not at issue, ―because it tended to prove that when similarly
agitated in a domestic setting defendant will act violently and intentionally.‖

         State v. Cavaner, 206 Or App 131, 135 P3d 402 (2006). In a prosecution for third-degree assault
and DUII, the state offered evidence of defendant‘s prior participation in a DUII diversion program to show
that he had committed the assault ―recklessly.‖ The trial court excluded the evidence, and the state appealed.
Held: Reversed and remanded. [1] The evidence was relevant to show defendant‘s awareness of the risk that
someone might be injured by his intoxicated driving and his conscious disregard of that risk. [2] The
evidence was not subject to exclusion under OEC 403, because OEC 404(4) eliminated OEC 403 balancing
of prejudicial effect versus probative value. The due-process clause does not require exclusion of other-
crimes evidence in all cases.
                                                                                                         13

         State v. Oddo, 205 Or App 588, 135 P3d 344 (2006). Defendant was convicted of two counts of
criminal mistreatment under ORS 163.205 for withholding ―necessary and adequate medical attention‖ from
two dependent persons. He argued that the evidence was insufficient. Held: Reversed. The evidence was
insufficient to support the convictions. The state ―presented no evidence that either alleged victim actually
was in need of medical attention.‖

BURGLARY / TRESPASS

        State v. Johnson, 210 Or App 733, ___ P3d ___ (2007). [1] Under ORS 161.055(1), the state had no
obligation to disprove a potential defense of ―honest claim of right‖ until the defendant raised the defense at
trial. Here, defendant moved for a judgment of acquittal after the close of the state‘s evidence, but before
defendant presented his case. Because defendant had not yet ―raised‖ his defense, the state did not have the
burden to disprove it. [2] In any event, there was sufficient evidence from which a rational trier of fact could
find beyond a reasonable doubt that defendant was not acting under a reasonable belief that he had a right to
the money that he demanded: he attempted to flee the scene when police were called, and he made
inconsistent statements to the investigating officers about the motive for his conduct.

         State v. Hinton, 209 Or App 210, 147 P3d 345 (2006). The trial court correctly denied defendant‘s
motion for a judgment of acquittal on the charge of criminal trespass, because the evidence showed that
defendant could have determined from a map that he had crossed from BLM land that was open to the public
to an area not open to the public. The fact that the precise boundary might have been difficult to determine at
the time of entry was irrelevant, because a rational trier of fact could conclude that defendant remained on
the property at a location that a reasonable person would have known was closed to the public.

        State v. Litscher, 207 Or App 565, 142 P3d 549 (2006). [1] To commit burglary, the defendant must
unlawfully enter a building with the intent to commit a ―crime‖ therein. Evidence that defendant entered
with the intent to violate a civil restraining order was insufficient to support the burglary conviction.
[2] Proper remedy is to vacate burglary conviction and enter judgment of conviction on lesser-included
offense of first-degree criminal trespass, the elements of which the jury necessarily found in convicting
defendant on the burglary charge.

CHILD NEGLECT

         State v. Obeidi, ___ Or App ___, ___ P3d ___ (March 14, 2007). Defendant left her two children, a
one-year-old and a three-year-old, alone in a parked car in a high-traffic area while she went into a store to
buy diapers; she was in the store for 30 minutes. In her trial for second-degree child neglect, he claimed that
the children were not left unattended ―for such period of time as may be likely to endanger the health or
welfare of such child,‖ in violation of ORS 163.545(1), because she had locked the car, activated the car
alarm, and left the windows partly open for air circulation. Held: The evidence was sufficient to support
defendant‘s conviction for second-degree child neglect. The statute does not require the state to prove that it
was probable that any particular harm would occur; rather, circumstances ―may be likely to endanger‖ when
leaving a child unattended is in some degree likely to make probable a state of being exposed to harm. Here,
the children were left vulnerable in a public place in which they could be seen from outside the car. The
parking lot was in a busy, high-crime area, and the children were accessible through the open windows to
anyone passing through the parking lot. A finder of fact could infer that the child was probably exposed to
harm from any wrongdoer who happened along.

CLAIM PRECLUSION / COLLATERAL ESTOPPEL / LAW OF CASE

        Lincoln Loan Co. v. City of Portland, 340 Or 613, 136 P3d 1 (2006). After the Court of Appeals
affirmed a judgment against plaintiff, plaintiff attempted to collaterally attack the judgment by seeking a
declaratory judgment stating that the Court of Appeals was unconstitutionally established. The circuit court
14

denied relief and the Court of Appeals certified the appeal to the Supreme Court. Held: Because plaintiff
reasonably could have challenged the authority of the Court of Appeals in the original proceeding, the
doctrine of claim preclusion, or res judicata, precludes him from doing so in a collateral proceeding.

         State v. Romanov, 210 Or App 198, 149 P3d 1224 (2006). The doctrine of issue preclusion does not
operate to bar prosecution of defendant for fourth-degree assault based on the court‘s earlier determination,
in allowing defendant into diversion on a related DUII charge, that defendant‘s DUII offense ―did not
involve an accident resulting in physical injury.‖ Issue preclusion applies only if the issue that was decided
in the other proceeding was identical to the issue in the second proceeding. Although the court determined in
the diversion eligibility hearing that the DUII itself did not result in physical injury, the question in the
assault case was whether any of defendant‘s conduct, when accompanied by the necessary culpable mental
state, resulted in physical injury. Thus, because the issues were not identical, the trial court erroneously
dismissed the assault based on issue preclusion.

COERCION

         State v. Garcia, 206 Or App 745, 138 P3d 927 (2006). Defendant was convicted of two counts of
coercion and other charges arising from an incident in which he threatened his girlfriend that he would burn
her house down if she called for help and to kill her if she testified against him. She did testify against him at
trial. The first coercion count was based on his threats to induce her not to call 911; the second was based on
his threats to induce her not to testify against him. On the second count, defendant asked for instruction on
the lesser-included offense of attempted coercion, arguing that the victim had not in fact ―abstained from‖
testifying against him at trial. The trial court denied the request. Held: Reversed and remanded for entry of
a reduced conviction. [1] Because the jury could have concluded that defendant only attempted to induce the
victim not to testify but had failed to achieve that result, the court erred in failing to instruct the jury on
attempted coercion. [2] Because defendant does not dispute that the evidence is sufficient to support a
conviction on the lesser-included offense of attempted coercion, the remedy is to reverse and remand for
entry of conviction on the lesser-included offense.

         State v. Phillips, 206 Or App 90, 135 P3d 461, rev den 341 Or 548 (2006). Defendant was convicted
of two counts of coercion under ORS 163.275, involving incidents with two 12-year-old neighbor girls who
frequented his house and to whom he gave alcohol and marijuana. In one, defendant showed the victim a
sexually explicit video, she got up to turn it off, and defendant pushed her back down on the couch. She left
soon thereafter. In the other, defendant began touching the victim sexually, she pushed him away, and as she
started to leave he grabbed her arm. She slapped him and escaped. Defendant argued that the evidence was
insufficient, because there was no evidence that he successfully compelled the victims to remain, and
because there was no evidence that he caused the victims to fear that some adverse consequence would occur
if they failed to comply with his wishes. Held: Affirmed. As to the first incident, a rational juror could find
that the victim remained on the couch for at least a short time out of fear of what defendant would do to her if
she left immediately. As to the second, a rational juror could find that by forcefully grabbing the victim,
defendant implicitly threatened her with physical injury if she tried to leave, and that she remained for at
least a short time out of fear of defendant.

CONFESSIONS / MIRANDA
     See also ―Arrest,‖ above.

         Sanchez-Llamas v. Oregon, 548 US __, 126 S Ct 2669, 165 L Ed 2d 557 (2006). Defendant, a
Mexican national, was arrested after a gun battle with police. The officers provided him Miranda warnings
but did not advise him of his rights under Article 36(1)(b) of the Vienna Convention on Consular Relations
(VCCR), and he made incriminating statements during interrogation. He moved to suppress, contending that
the police violated the VCCR and that suppression is the proper remedy. The Oregon Supreme Court ruled
that the VCCR does not create a right enforceable by an individual. Held: Affirmed. [1] The VCCR ―does
                                                                                                       15

not prescribe specific remedies for violations of Article 36‖ — ―the availability of the exclusionary rule for
Article 36 violations is a matter of domestic law.‖ [2] The Court cannot impose an exclusionary remedy
pursuant to supervisory authority because ―we do not hold a supervisory power over the courts of the several
States.‖ [3] Although ―a self-executing treaty binds the States pursuant to the Supremacy Clause, * * *
where a treaty does not provide a particular remedy, either expressly or implicitly, it is not for the federal
courts to impose one on the States through lawmaking of their own.‖ [4] Neither the VCCR ―nor our
precedents applying the [constitutionally based] exclusionary rule support suppression of [defendant‘s]
statements to the police.‖ [5] In the companion case of Bustillo v. Johnson, the Court affirmed the state
court‘s dismissal, on procedural-default grounds, of the petitioner‘s post-conviction claim based on an
alleged violation of the VCCR — ―claims under Article 36 of the [VCCR] may be subjected to the same
procedural-default rules that apply generally to federal-law claims.‖ The ruling by the International Court of
Justice in LaGrand does compel a different result.
         Note: Given its ruling, the Court found it ―unnecessary to resolve the question whether the [VCCR]
grants individuals enforceable rights.‖

        State v. Longo, 341 Or 580, 148 P3d 892 (2006). [1] The circuit court correctly denied defendant‘s
motion to prohibit the death penalty because: (1) Article 36 of the VCCR does not create individually
enforceable rights (following Sanchez-Llamas, 338 Or 267, 276, aff’d on other gds sub nom Sanchez-Llamas
v. Oregon, 548 US ___, 126 S Ct 2669 (2006)), and although it permits US consular officials to visit US
nationals, it does not require them to do so; (2) the 1978 United States-Mexico Extradition Treaty does not
apply because defendant was not extradited, but rather returned voluntarily to the United States; and (3) even
if the Department of State Foreign Affairs Manual applies to an FBI agent without consular duties, it is not a
source of law. [2] The court correctly admitted defendant‘s statements to police, which were made after
Miranda warnings; defendant voluntarily spoke with the officers and did not invoke any right to silence or
counsel by picking and choosing what to talk about.

         State v. Randant, 341 Or 64, 136 P3d 1113 (2006). Defendant repeatedly contacted detectives and
made statements about a murder, both before and after he was indicted and counsel was appointed. Before
the final two conversations, defendant expressly waived his Miranda rights. Detectives did not contact
defendant‘s lawyer before talking to him. Pretrial, defendant moved to suppress all of the statements. The
circuit court denied the motion and defendant was convicted. The Court of Appeals affirmed. Held:
Affirmed. Defendant‘s right to counsel under Article I, section 11, of the Oregon Constitution and the Sixth
Amendment was not violated. [1] If the right to counsel has attached, a defendant nonetheless may initiate
conversations with the detectives, and neither counsel‘s presence nor advance notice to counsel is required.
[2] Unlike a situation in which the defendant wishes to waive counsel at trial, detectives are not required to
engage in any formal colloquy to determine whether a defendant wishes to waive counsel during questioning.
[3] The Miranda warnings before the final two interviews were sufficient to establish that defendant intended
to waive counsel. [4] Because the earlier unwarned statements were merely cumulative and less detailed
than the later statements, the court did not decide whether the record showed a voluntary waiver because any
error in admitting the statements was harmless. [5] The detectives‘ conduct in discussing a possible
polygraph examination and other typical subjects of lawyer-client communications after defendant‘s
initiation of conversation did not impermissibly interfere with his right to counsel. Rather, the detectives
acted professionally, clarified any misunderstandings, and reminded defendant that his statements could be
used against him.

        State v. Roble-Baker, 340 Or 631, 136 P3d 22 (2006). After the skeletal remains of defendant‘s
missing husband were discovered in the backyard of her former residence, defendant voluntarily
accompanied detectives to the station to be interviewed. The contact spanned several hours, during which
she made at least one statement suggesting she wished to end the interview. Without providing
Miranda warnings, officers continued to engage her in conversation, at least in part because she was waiting
while her young son was being interviewed by other officers. Defendant ultimately made inculpatory
statements in response to questioning. The trial court denied her motion to suppress. Held: Reversed.
16

[1] Although defendant originally came to the police station voluntarily, the circumstances eventually
became compelling for purposes of Article I, section 12. The following factors created a ―police-dominated
atmosphere that Miranda warnings were intended to counteract‖: (a) defendant spent five to six hours at the
police station; (b) officers refused to honor her requests to end the contact; (c) defendant was dependent on
them for a ride home and was waiting for her son, and thus was, as a practical matter, not free to leave; and
(d) the detectives continued to ask questions that assumed her guilt. [2] But: ―Defendant‘s claim that her
statements were involuntary has no merit,‖ and she was not entitled to Miranda warnings under the federal
constitution.

         State v. Tiner, 340 Or 551, 135 P3d 305 (2006). [1] ―[T]he state and federal privileges [against self-
incrimination] apply to only testimonial evidence — the communication of a person‘s belief, knowledge or
state of mind — but not to defendant‘s physical characteristics, such as identity, appearance, and physical
condition.‖ So, ―a defendant may be required to display part of his or her body on request, and such a display
does not raise an issue of self-incrimination. In addition, the tattoos were preexisting documentary evidence
available to the state as part of the discovery process.‖ [2] Ordering defendant to display his prison-gang
tattoos outside the presence of the jury so that a witness could positively identify him, and so that a state‘s
gang expert could testify about them, did not violate defendant‘s right against compelled self-incrimination.

         State v. Johnson, 340 Or 319, 131 P3d 173 (2006). [1] The trial court correctly denied defendant‘s
Miranda-based motion to suppress. Although defendant reasonably could have believed initially that he was
in custody when officers with drawn guns ordered him out of his house, ―any such belief would have been
dispelled when [the officers presented him] with apparently lawful search warrants, asked him to come down
to the station to assist in an investigation, and told him explicitly that he was not under arrest.‖ Moreover,
some of the statements ―were spontaneous on his part and not the product of any interrogation‖ and
―defendant very actively controlled the interrogation * * * and, when he asked the investigators to terminate
the interview and to return him to his home, they did so.‖ [2] Statements that defendant made to officers
who transported him back from Florida, after he had invoked his right to counsel, were made freely,
voluntarily, and spontaneously and were not the product of questioning that was the ―functional equivalent to
interrogation.‖

        State v. Saunders, 211 Or App 73, ___ P3d ___ (2007). Although defendant‘s interview by
detectives occurred in his own home, the circumstances became compelling because the detectives controlled
defendant‘s physical movements by asking him to sit down when he attempted to stand up to get cigarettes
and water, by ―pressuring‖ him with highly incriminating evidence (the victim‘s drawings depicting the
abuse) and telling him that they believed he was guilty, and by stressing the importance of expressing
remorse, despite defendant‘s repeated denials of the allegations. Thus, his statements were inadmissible
because the detectives had not warned him of his Miranda rights.

         State v. Satchell, 209 Or App 809, 150 P3d 4 (2006). OSP fish and wildlife troopers received a
report that defendant had committed wildlife violations. The troopers found defendant driving in a pickup
truck while shining a spotlight into trees and lawfully stopped him for a traffic violation. Due to concerns
that defendant might be armed, the troopers ordered defendant and his passenger out of the pickup,
handcuffed him, and then searched both defendant and his passenger and the pickup for weapons. Before
giving him Miranda warnings, the troopers questioned defendant, who was still handcuffed, for about 20-30
minutes during which time defendant made incriminating statements. The Court of Appeals held the trial
court should have suppressed defendant‘s statements because, at the time defendant made the statements, he
was at least under compelling circumstances, if not in custody, and should have been given Miranda
warnings.

        State v. Shaff, 209 Or App 68, 146 P3d 389 (2006), rev allowed 342 Or 473 (2007). [1] Although
defendant was at his own residence when the officers arrived to perform a welfare check in response to a
report of a possible assault, the circumstances became ―compelling‖ during his conversation with one officer
                                                                                                           17

while another officer checked on the victim of the alleged assault, because of the following factors:
(1) defendant was physically restrained by the presence of one officer in his front doorway while the other
contacted the victim; (2) coercive overtones, including the conduct, language, and repetitive questioning by
the questioning officer, and the conduct of the other officer in walking the victim past the defendant (thus
demonstrating her recent injuries) and separately questioning her; and (3) the questioning officer confronted
defendant with misstatements of what the victim had reported to the other officer, which increased the
likelihood that a reasonable person would feel a compulsion to respond to the accusations. [2] Admission of
the statement was not harmless because it was defendant‘s sole admission in connection with the charge.

         State v. Savage, 208 Or App 472, 144 P3d 1063 (2006). Defendant, who was sharing a marijuana
pipe with a minor in public, was not placed in ―compelling circumstances‖ when a city code-enforcement
officer approached and asked him to sit on the curb until a police officer could arrive, or when the police
officer arrived and asked questions to determine whether a crime had been committed. Neither officer did
anything to restrain defendant, and the circumstance were otherwise uncoercive. Although the officers
testified that they would not have permitted defendant to leave the scene, neither of them informed defendant
of that fact.

CONSTITUTIONAL LAW
         See also ―Ex Post Facto‖; ―Former Jeopardy‖; ―Search & Seizure‖; ―Sentencing: constitutional
issues‖; ―Stop & Frisk,‖ and ―Venue,‖ below.

        Constitutional law: due-process issues

         Carey v. Musladin, 549 US ___ (05-785) (December 11, 2006). At petitioner‘s murder trial,
members of the victim‘s family sat in the front row of the spectators‘ gallery wearing buttons displaying the
victim‘s image. The trial court denied petitioner‘s motion to order the family members not to wear the
buttons, and petitioner was convicted at trial. The state appellate courts rejected petitioner‘s argument that
his right to a fair trial was violated by the ruling, and petitioner sought federal habeas corpus relief. The
federal district court denied relief, but the Ninth Circuit Court of Appeals reversed, concluding that the state
court‘s decision was an unreasonable application of clearly established federal law. The United States
Supreme Court granted certiorari. Held: Reversed. The Court previously has held that certain courtroom
practices (such as compelling defendants to wear prison garb and ordering uniformed troopers to sit
immediately behind the defendant at trial) are ―inherently prejudicial‖ and violate defendants‘ fair-trial
rights. However, it has never held that the conduct of private persons can deprive a defendant of a fair trial
or otherwise violate the Due Process Clause. Thus, the state courts‘ application of prior Supreme Court
precedent was not unreasonable.

         State v. Illig-Renn, 341 Or 228, 142 P3d 62 (2006). ORS 162.247(1)(b), which defines the offense
of interfering with a peace officer by refusing to obey a ―lawful order,‖ is not constitutionally overbroad
under Art. I, § 8, or the 1st Amend. Nor is it facially vague: it does not permit arbitrary and retroactive
punishment under the equal privileges clause in Art. I, § 20, or the ex post facto clause of Art. I, § 21, and
provides sufficient warning under the 14th Amend. Due Process Clause.

         State v. Krueger, 208 Or App 166, 144 P3d 1007 (2006). The Portland city ordinance prohibiting
―prostitution procurement activity‖ is not preempted by state law. The terms ―lingering,‖ ―repeatedly
circling‖ in a motor vehicle, or ―repeatedly beckoning‖ to pedestrians or motor-vehicle operators do not
render the ordinance facially vague in violation of the 14th Amend. Due Process Clause because (1) the
ordinance is not vague in all of its possible applications and (2) because the terms, read in context, give fair
warning of the conduct that is prohibited.
18

        Constitutional law: equal-protection issues

         State v. Illig-Renn, 341 Or 228, 142 P3d 62 (2006). ORS 162.247(1)(b), which defines the offense
of interfering with a peace officer by refusing to obey a ―lawful order,‖ is not constitutionally overbroad
under Art. I, § 8, or the 1st Amend. Nor is it facially vague: it does not permit arbitrary and retroactive
punishment under the equal privileges clause in Art. I, § 20, or the ex post facto clause of Art. I, § 21, and
provides sufficient warning under the 14th Amend. Due Process Clause.

        Constitutional law: free-speech issues

         Garcetti v. Ceballos, 547 US __, 126 S Ct 1951, 164 L Ed 2d 689 (2006). A state DDA filed suit
under 42 USC § 1983 contending that the DA unlawfully retaliated against him, in violation of his First
Amendment rights, based on an internal memorandum in which he had argued that a search was unlawful
and that the case should be dismissed. (His recommendation was not followed, and the trial court ultimately
denied the motion to suppress.) The district court concluded that the memo was not protected speech and
dismissed his case. Held: Dismissal affirmed. ―[W]hen public employees make statements pursuant to their
official duties, the employees are not speaking as citizens for First Amendment purposes, and the
Constitution does not insulate their communications from employer discipline.‖

          Hartman v. Moore, 547 US __, 126 S Ct 1695, 164 L Ed 2d 441 (2006). ―A Bivens (or § 1983)
action for retaliatory prosecution will not be brought against the prosecutor, who is absolutely immune from
liability for the decision to prosecute. Instead, the defendant will be a non-prosecutor, an official * * * who
may have influenced the prosecutorial decision but did not himself make it, and the cause of action will not
be strictly for retaliatory prosecution, but for successful retaliatory inducement to prosecute. The
consequence is that the plaintiff must show that the non-prosecuting official acted in retaliation, and must
also show that the he induced the prosecutor to bring charges that would not have been initiated with his
urging.‖ Therefore, in a § 1983 or Bivens action seeking damages against an investigatory official for a
wrongful prosecution that allegedly was pursued in retaliation against the plaintiff‘s exercise of First
Amendment rights, the plaintiff must allege and prove that the prosecutor in the underlying criminal case
lacked probable cause for pressing the charges.

        Constitutional law: pre-emption

         State v. Krueger, 208 Or App 166, 144 P3d 1007 (2006). The Portland city ordinance prohibiting
―prostitution procurement activity‖ is not preempted by state law.

        Constitutional law: other issues

         Sanchez-Llamas v. Oregon, 548 US __, 126 S Ct 2669, 165 L Ed 2d 557 (2006). Defendant, a
Mexican national, was arrested after a gun battle with police. The officers provided him Miranda warnings
but did not advise him of his rights under Article 36(1)(b) of the Vienna Convention on Consular Relations
(VCCR), and he made incriminating statements during interrogation. He moved to suppress, contending that
the police violated the VCCR and that suppression is the proper remedy. The Oregon Supreme Court ruled
that the VCCR does not create a right enforceable by an individual. Held: Affirmed. [1] The VCCR ―does
not prescribe specific remedies for violations of Article 36‖ — ―the availability of the exclusionary rule for
Article 36 violations is a matter of domestic law.‖ [2] The Court cannot impose an exclusionary remedy
pursuant to supervisory authority because ―we do not hold a supervisory power over the courts of the several
States.‖ [3] Although ―a self-executing treaty binds the States pursuant to the Supremacy Clause, * * *
where a treaty does not provide a particular remedy, either expressly or implicitly, it is not for the federal
courts to impose one on the States through lawmaking of their own.‖ [4] Neither the VCCR ―nor our
precedents applying the [constitutionally based] exclusionary rule support suppression of [defendant‘s]
                                                                                                           19

statements to the police.‖ [5] In the companion case of Bustillo v. Johnson, the Court affirmed the state
court‘s dismissal, on procedural-default grounds, of the petitioner‘s post-conviction claim based on an
alleged violation of the VCCR — ―claims under Article 36 of the [VCCR] may be subjected to the same
procedural-default rules that apply generally to federal-law claims.‖ The ruling by the International Court of
Justice in LaGrand does compel a different result.
         Note: Given its ruling, the Court found it ―unnecessary to resolve the question whether the [VCCR]
grants individuals enforceable rights.‖

        Lincoln Interagency Narcotics Team v. Kitzhaber, 341 Or 496, 145 P3d 151 (2006). Ballot
Measure 3 (Oregon Property Protection Act) does not contain two or more constitutional amendments, and
thus does not violate of the separate-vote requirement of Art. VII, § 1.

         Jury Service Resource Center v. DeMuniz et al., 340 Or 423, 134 P3d 948 (2006). Plaintiffs
brought this declaratory-judgment suit contending that they are entitled to information about all potential
jurors within certain counties and hence are were entitled to review the source lists, master lists and term lists
from which jurors are randomly selected. Held: Action dismissed. [1] The court adopted the decision of the
Court of Appeals, 199 Or App 106, 110 P3d 594 (2005), on some issues: (a) plaintiffs have standing to bring
the challenge, because the open-courts provision in Article I, section 10, and the ―right to access to
information about trials‖ under the First Amendment ―belong to the public generally and not to any
individual more than another‖; (b) the open-courts provision of Article I, section 10, of the Oregon
Constitution guarantees the openness only of ―adjudications‖; the compilation of jury lists is not an
adjudication and, therefore, need not be made open to the public under Article I, section 10; and
(c) plaintiff‘s various claims under the Public Records Law and Article I, sections 8 and 20, have no merit.
[2] Plaintiffs are not entitled to the records under the First Amendment, which encompasses a public right to
observe the workings of at least some parts of the administration of justice, particularly criminal trials and
requires that trials must be conducted openly with full access to the public. The process of juror selection is
itself a matter of importance, not simply to the adversaries but to the criminal-justice system. Historically,
the process of the selection of jurors has presumptively been a public process with exceptions only for good
cause shown. The process of selecting potential jurors, however, has never been open in the same way.
Although open criminal proceedings give assurances of fairness to both the public and the accused, there are
some limited circumstances in which the right of the accused to a fair trial might be undermined by publicity.
As a result, there is no right of access under the First Amendment to jury pool records, such a source lists,
master lists, and jury term lists.

        Liberty Northwest Ins. v. Oregon Ins. Guarantee, 206 Or App 102, 136 P3d 49 (2006). Because
the ―remedy clause‖ in Article I, section 10, uses the term ―every man,‖ it ―applies to natural persons only‖
and not to corporations.

        Constitutional law: construing constitutional provisions

         State v. Werdell, 202 Or App 413, 122 P3d 86 (2005), rev’d on other grounds 340 Or 590, 136 P3d
17 (2006). [1] ―Although venue is not an element of the offense, it is a material allegation that the state must
prove to a jury beyond a reasonable doubt.‖ [2] ―Article I, section 11, does not permit the legislature to
establish venue where no element of the crime occurred.‖ [3] ―In analyzing a constitutional provision, we
strive to understand the wording in the light of the way that wording would have been understood and used
by those who created the provision. We also seek to apply faithfully the principles embodied in the Oregon
Constitution to modern circumstances as those circumstances arise.‖ ―Later-enacted statutes that do not
merely codify preexisting common law shed little, if any, light on the meaning of the constitution.‖

        Liberty Northwest Ins. v. Oregon Ins. Guarantee, 206 Or App 102, 136 P3d 49 (2006). Because
the ―remedy clause‖ in Article I, section 10, uses the term ―every man,‖ it ―applies to natural persons only‖
and not to corporations.
20

CONTEMPT

        State v. Litscher, 207 Or App 565, 142 P3d 549 (2006). [1] To commit burglary, the defendant must
unlawfully enter a building with the intent to commit a ―crime‖ therein. Evidence that defendant entered
with the intent to violate a civil restraining order was insufficient to support the burglary conviction.
[2] Proper remedy is to vacate burglary conviction and enter judgment of conviction on lesser-included
offense of first-degree criminal trespass, the elements of which the jury necessarily found in convicting
defendant on the burglary charge.

COURTS

        Mabon v. Wilson, 340 Or 385, 133 P3d 899 (2006). Relying on ORS 30.510, plaintiff filed an
action contending that a sitting circuit-court judge is not qualified to hold that position because she had not
taken the proper oath of office under Article VII (Am), section 7. The trial court dismissed the action, and
the Court of Appeals affirmed. Held: Affirmed. [1] ORS 30.510 et seq. ―is a statutory substitute for the
common-law writ of quo warranto.‖ [2] When ORS 30.510(1) is viewed in context with ORS 30.530 and
30.610, ―only a district attorney may initiate statutory proceedings in the nature of quo warranto.‖

DEATH PENALTY
     See also ―Homicide,‖ below.

        Death penalty: federal cases

         Kansas v. Marsh, 548 US __, 126 S Ct 2516, 165 L Ed 2d 429 (2006). Finding an evidentiary error,
the state supreme court reversed defendant‘s aggravated-murder conviction and death sentence and remanded
for a new trial. The court also invalidated the Kansas capital-sentencing statute on the ground that it creates
a presumption of death, in violation of the Eighth Amendment, by requiring the jury to return a death
sentence unless it finds that mitigating circumstances outweigh aggravating factors (i.e., death is required if
the jury finds the evidence in equipoise). Held: Reversed and remanded. The Kansas statute is
constitutional because a capital-sentencing statute ―may place the burden on the defendant to prove that
mitigating circumstances outweigh aggravating circumstances‖ and hence ―may direct imposition of the
death penalty when the State has proved beyond a reasonable doubt that mitigators do not outweigh
aggravators, including where the aggravating circumstances and mitigating circumstances are in equipoise.‖
         Note: ORS 163.150(1) and (2) do not impose a burden of proof on the fourth question or require a
juror to find that mitigating circumstances ―outweigh‖ aggravating facts in order to vote against either death
or a true-life sentence.

         House v. Bell, 547 US __, 126 S Ct 2064, 165 L Ed 2d 1 (2006). In 1985, petitioner‘s neighbor was
found dead, having been beaten and perhaps sexually assaulted. Based on circumstantial evidence
connecting petitioner to the crime, he was convicted of the murder and was sentenced to death. The
conviction and sentence was affirmed on direct appeal, and in 1990 petitioner unsuccessfully sought post-
conviction relief. Years later, based on newly obtained DNA evidence and witness statements that suggested
that the victim‘s husband was actual murderer, petitioner filed a second petition for post-conviction relief
asserting new inadequate-assistance claims. After the state court held the petition was barred, petitioner filed
a § 2254 petition asserting the procedurally defaulted claims and sought to obtain relief from his default
under the Schlup v. Delo ―actual innocence‖ exception. Held: Remanded for hearing on those claims.
[1] Under Schlup, ―although to be credible a gateway claim requires new reliable evidence — whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was
not presented at trial, the habeas court‘s analysis is not limited to such evidence. * * * The court‘s function is
not to make an independent factual determination about what likely occurred, but rather to assess the likely
impact of the evidence on reasonable jurors.‖ [2] ―[T]he Schlup standard does not require absolute certainty
                                                                                                          21

about the petitioner‘s guilt or innocence. A petitioner‘s burden at the gateway stage is to demonstrate that
more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a
reasonable doubt.‖ [3] The strict standards in AEDPA that govern successive § 2254 petitions and new
evidentiary hearings (§ 2244(b)(2)(B); § 2254(e)(2)) do not apply to a Schlup claim asserted in a first
petition. [4] Although ―this is not a case of conclusive exoneration, * * * this is the rare case where — had
the jury heard all the conflicting evidence — is it more likely than not that no reasonable juror viewing the
record as a whole would lack reasonable doubt.‖ Consequently, he ―may proceed on remand with
procedurally defaulted constitutional claims.‖ [5] The Court‘s decision in Herrera v. Collins, which left
open the possibility of a freestanding actual-innocence claim, implied that any such claim ―requires more
convincing proof of innocence than Schlup.‖ Because petitioner‘s evidence does not meet that higher
standard, it is unnecessary to consider whether such a freestanding claim is available.

         Hill v. McDonough, 547 US __, 126 S Ct 2096, 165 L Ed 2d 44 (2006). Petitioner, a death-row
inmate, filed suit under 28 USC § 1983 to enjoin the lethal-injection procedure, contending that it might
cause him severe pain in violation of the Eighth Amendment. The district court construed the suit as one for
habeas corpus relief and dismissed it based on the successive-petition bar in 28 USC § 2244. Held:
Reversed and remanded. [1] ―Challenges to the lawfulness of confinement and to particulars affecting its
duration are the province of habeas corpus. An inmate‘s challenge to the circumstances of his confinement,
however, may be brought under § 1983.‖ [2] Because petitioner‘s ―action, if successful, would not
necessarily prevent the State from executing him by lethal injection‖ but merely alter the method by which
that is done, ―a grant of injunctive relief could not be seen as barring the execution of [his] sentence.‖ Thus,
a § 1983 action is proper. [3] ―Filing an action that can proceed under § 1983 does not entitle the
complainant to an order staying an execution as a matter of course. Both the State and the victims of crime
have an important interest in the timely enforcement of a sentence. * * * [I]nmates seeking time to challenge
the manner in which the State plans to execute them must satisfy all the requirements for a stay, including a
showing of a significant possibility of success on the merits. A court considering a stay must also apply a
strong equitable presumption against the grant of a stay where a claim could have been brought at such time
as to allow consideration of the merits without requiring entry of a stay.‖

         Holmes v. South Carolina, 547 US __, 126 S Ct 1727, 164 L Ed 2d 503 (2006). Based on a home-
invasion robbery in which the elderly victim died after being beaten and raped, defendant was convicted of
murder and was sentenced to death. On appeal, he contended that the trial court erred in excluding his
proffered evidence that a third person actually had committed the. The state supreme court affirmed, ruling
that because the forensic evidence of defendant‘s guilt was overwhelming, the proffered evidence was too
speculative to create a ―reasonable inference‖ of defendant‘s innocence. Held: Reversed and remanded.
[1] Although states ―have broad latitude under the Constitution to establish rules excluding evidence from
criminal trial, * * * the Constitution guarantees criminal defendants a meaningful opportunity to present a
complete defense. This right is abridged by evidence rules that infringe upon a weighty interest of the
accused and are arbitrary or disproportionate to the purposes they are designed to serve.‖ [2] ―[W]ell-
established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by
certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury.‖ And
those rules may exclude evidence of third-party responsibility that is only ―speculative or remote.‖ [3] The
state‘s evidentiary rule in this case was ―arbitrary,‖ and hence violated the defendant‘s right to present a
defense, because the court excluded his proffered evidence of third-party responsibility based on its
assessment that the case against the defendant was strong: ―by evaluating the strength of only one party‘s
evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the
other side to rebut or cast doubt.‖

        Death penalty: state cases

        State v. Guzek, 342 Or 345, ___ P3d ___ (2007). This case was remanded to the Oregon Supreme
Court after the United States Supreme Court reversed the previous Oregon Supreme Court decision holding
22

that defendant had an Eighth Amendment right in the sentencing phase to present transcripts of alibi
testimony that had been admitted in the guilt phase, as well as new live alibi (or ―residual doubt‖) testimony.
Although the United States Supreme Court held that defendant had no right under the Eighth Amendment to
present the proffered alibi evidence, the question remained whether state law otherwise required the court to
admit the evidence. Held: [1] Although the defendant originally framed his challenge in the appellate courts
to the trial court‘s exclusion of ―alibi‖ evidence in terms of the Eighth Amendment to the United States
Constitution, the ―broad legal issue regarding the admissibility of alibi evidence‖ in the penalty phase was
sufficiently preserved below, and thus the new arguments raised by defendant in his supplemental briefs
were reviewable on direct review. [2] ORS 138.012(2)(b) provides that, in a penalty-phase retrial after a
remand by an appellate court, ―all exhibits and other evidence properly admitted in the prior trial and
sentencing proceeding are admissible in the new sentencing proceeding.‖ Thus, the transcript of all
testimony properly admitted in defendant‘s prior trial and sentencing proceedings – which, in this case,
encompasses ―alibi‖ testimony from both defendant‘s mother and grandfather – is admissible in the new
penalty-phase proceeding without regard to issues of relevancy or balancing. [3] Unlike the transcripts of the
prior proceedings, which are categorically admissible, any live testimony is admissible under ORS
138.012(2)(b) only if is ―additional relevant evidence.‖ Because the issue of guilt already has been
determined at the time of sentencing, ―alibi‖ evidence is not relevant to the issues in the penalty phase. [4]
Live alibi testimony is not admissible in the penalty phase to ―impeach‖ the testimony of his codefendants
regarding his involvement in the crimes because impeachment is permissible only with regard to any
―independently relevant fact‖; because guilt is not at issue at sentencing, any ―alibi‖ evidence is not
admissible to impeach that collateral matter.

         State v. Longo, 341 Or 580, 148 P3d 892 (2006). Guilt phase: [1] The circuit court correctly denied
defendant‘s motion to prohibit the death penalty because: (1) Article 36 of the VCCR does not create
individually enforceable rights (following Sanchez-Llamas, 338 Or 267, 276, aff’d on other gds sub nom
Sanchez-Llamas v. Oregon, 548 US ___, 126 S Ct 2669 (2006)), and although it permits US consular
officials to visit US nationals, it does not require them to do so; (2) the 1978 United States-Mexico
Extradition Treaty does not apply because defendant was not extradited, but rather returned voluntarily to the
United States; and (3) even if the Department of State Foreign Affairs Manual applies to an FBI agent
without consular duties, it is not a source of law. [2] The court correctly admitted defendant‘s statements to
police, which were made after Miranda warnings; defendant voluntarily spoke with the officers and did not
invoke any right to silence or counsel by picking and choosing what to talk about. [3] The court correctly
denied defendant‘s Batson challenge because defendant failed to produce evidence sufficient to permit a trial
judge to draw an inference that discrimination had occurred; there was no evidence that the juror in question
was in fact a minority, and no pattern of questioning by the prosecutor that suggested racial discrimination.
[4] The prosecutor did not commit discovery or Brady violation by failing to disclose statements by witness
that were not documented in investigating officer‘s report; moreover, defendant was not prejudiced because
he received continuance to investigate after witness statements were disclosed at trial. [5] Excited utterances
made by wife victim were properly admitted, because she made the statements soon after being told by
defendant that he no longer loved her, and she was upset, sobbing, and visibly shaken when she made the
statements. Penalty phase: [6] Oregon is not constitutionally required to establish statewide standards for
imposing the death penalty, and defendant is not entitled to discovery of information regarding that issue
(reaffirming State v. Cunningham, 320 Or 47, 65-68 (1994)); the US Supreme Court‘s decision in Bush v.
Gore did not undermine that decision. [7] The second question (probability of future dangerousness) does
not allow a defendant to be sentenced on less than proof beyond a reasonable doubt in violation of Apprendi
v. New Jersey. [8] The fourth question (whether the defendant should be sentenced to death) does not require
proof beyond a reasonable doubt because it does not involve any determination of fact. [9] The court
properly allowed defendant to offer evidence about the circumstances of his arrest and extradition from
Mexico, but it did not prevent defendant from offering ―mitigating‖ evidence when it refused to allow him to
offer evidence regarding Mexican extradition and deportation law. Mexican law did not demonstrate
anything about defendant‘s character or make it more or less likely that he planned the murders ahead of
time.
                                                                                                         23


         State v. Bowen, 340 Or 487, 135 P3d 272 (2006). [1] The trial court did not commit reversible error
by requiring defendant, who was charged with aggravated murder, to wear a ―stun belt‖ during trial.
Defendant did not object to the belt at trial, but he argued on appeal that that was plain error, relying on
earlier decisions that had held that forcing a defendant to appear before a jury in shackles was inherently
prejudicial to the defendant. Because the stun belt was not visible to the jurors, the cases finding jury bias
from leg shackling were not applicable, and defendant failed to make a record that wearing a stun belt may
have affected his ability to assist in his defense. Consequently, the court did not find plain error. [2] In the
penalty phase, and over defendant‘s objection that the evidence was unduly prejudicial under OEC 403, the
trial court correctly allowed the state to present evidence that defendant had murdered a woman in 1989. The
evidence of the earlier murder was relevant to the question of future dangerousness; the evidence was not
unfairly prejudicial (i.e., encouraging the jury to make a decision on an improper basis); and the trial court
mitigated any risk of unfair prejudice by excluding gory photographs of the crime scene and instructing the
jury to weigh the evidence calmly and dispassionately. The court also rejected defendant‘s argument that the
evidence should have been excluded because he was not prepared to defend against a second murder: ―A
party‘s lack of preparedness to meet evidence is not a factor under OEC 403 for determining whether that
evidence should be excluded.‖ [3] In the penalty phase, the state introduced evidence that defendant had
pleaded guilty to being an accessory after the fact to the 1989 murder and that he may have actually
committed that murder. The trial court correctly refused to give defendant‘s instruction that such evidence
was relevant only to the question of his future dangerousness, because it incorrectly stated the law — the
evidence also was relevant to the ―fourth question‖ whether defendant should receive a sentence of death.
[4] In the penalty phase, the court correctly refused to allow the defense to elicit from defendant‘s ex-
girlfriend her belief that defendant should not be sentenced to death. Although defendant argued that this
violated his right to present mitigating evidence, the evidence was properly excluded under State v. Wright,
323 Or 8 (1996), because it merely expressed the witness‘s opinion and was ―not relevant to any aspect of
defendant‘s character or background under ORS 163.150(1)(b)(D).‖ [5] Because defendant was convicted of
two counts of aggravated murder for killing one victim, and each count alleged a different theory of
aggravated murder, the court erred when it entered two judgments of conviction and two sentences of death.
The case was remanded to the trial court for entry of one judgment of conviction which enumerated both
theories, and for entry of one sentence of death. [6] The court also incorrectly sentenced defendant for both
the conviction for intentional murder and the conviction for aggravated felony murder. Because intentional
murder is a lesser-included offense of aggravated felony murder, the court committed plain error in failing to
merge the convictions.

         State v. Johnson, 340 Or 319, 131 P3d 173 (2006). [1] The Supreme Court refused to consider
defendant‘s complaints about access to legal materials because his counsel failed to follow through with the
trial court‘s direction to schedule a special hearing to consider those complaints. [2] The indictment was not
subject to demurrer for failing to allege the penalty-phase factors. [3] The trial court properly quashed
defendant‘s subpoena ducas tecum to obtain jury records in the absence of a showing ―that the method of
selecting the jury pool is or was constitutionally suspect.‖ [4] The trial court correctly denied defendant‘s
motion for judgment of acquittal.

DEFENSES
     See also ―Insanity,‖ below.

        Dixon v. United States, 548 US __, 126 S Ct 2437, 165 L Ed 2d 299 (2006). Defendant was
prosecuted for firearms offenses under federal law, and she asserted a duress defense, contending her
boyfriend had coerced her. The district court instructed the jury that she had the burden to prove that defense
by a preponderance of the evidence, rejecting her request for instruction that would have required the
government to disprove the defense beyond a reasonable doubt. Held: Affirmed. [1] ―[T]he defense of
duress does not negate a defendant‘s criminal state of mind when the applicable offense requires a defendant
to have acted knowingly or willfully; instead, it allows the defendant to avoid liability because coercive
24

conditions or necessity negates a conclusion of guilt even though the necessary mens rea was present.‖
[2] The Due Process Clause does not preclude placing the burden on defendant to establish the defense of
duress by a preponderance of the evidence. [3] Under the common law, the burden of proving all affirmative
defenses rested on the defendant, and that ―accords with the doctrine that where the facts with regard to an
issue lie particularly within the knowledge of a party, that party has the burden of proving the issue.‖
Nothing in the history of these particular offenses discloses that Congress intended to shift the burden of
proof to the government.
         Note: The duress defense in federal law is not codified. See ORS 161.270, 161.055.

         Holmes v. South Carolina, 547 US 319, 126 S Ct 1727, 164 L Ed 2d 503 (2006). Based on a home-
invasion robbery in which the elderly victim died after being beaten and raped, defendant was convicted of
murder and was sentenced to death. On appeal, he contended that the trial court erred in excluding his
proffered evidence that a third person actually had committed the. The state supreme court affirmed, ruling
that because the forensic evidence of defendant‘s guilt was overwhelming, the proffered evidence was too
speculative to create a ―reasonable inference‖ of defendant‘s innocence. Held: Reversed and remanded.
[1] Although states ―have broad latitude under the Constitution to establish rules excluding evidence from
criminal trial, * * * the Constitution guarantees criminal defendants a meaningful opportunity to present a
complete defense. This right is abridged by evidence rules that infringe upon a weighty interest of the
accused and are arbitrary or disproportionate to the purposes they are designed to serve.‖ [2] ―[W]ell-
established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by
certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury.‖ And
those rules may exclude evidence of third-party responsibility that is only ―speculative or remote.‖ [3] The
state‘s evidentiary rule in this case was ―arbitrary,‖ and hence violated the defendant‘s right to present a
defense, because the court excluded his proffered evidence of third-party responsibility based on its
assessment that the case against the defendant was strong: ―by evaluating the strength of only one party‘s
evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the
other side to rebut or cast doubt.‖

        State v. Johnson, 210 Or App 733, ___ P3d ___ (2007). [1] Under ORS 161.055(1), the state had no
obligation to disprove a potential defense of ―honest claim of right‖ until the defendant raised the defense at
trial. Here, defendant moved for a judgment of acquittal after the close of the state‘s evidence, but before
defendant presented his case. Because defendant had not yet ―raised‖ his defense, the state did not have the
burden to disprove it. [2] In any event, there was sufficient evidence from which a rational trier of fact could
find beyond a reasonable doubt that defendant was not acting under a reasonable belief that he had a right to
the money that he demanded: he attempted to flee the scene when police were called, and he made
inconsistent statements to the investigating officers about the motive for his conduct.

         State v. Ketchum, 206 Or App 635, 138 P3d 860, rev den 341 Or 450 (2006). Defendant was
convicted of first-degree sexual abuse and first-degree unlawful sexual penetration based on crimes
committed against his 4-year-old stepdaughter. He claimed that he had touched and penetrated the child‘s
vagina because her mother had asked him to apply ointment to a rash (which she denied). Defendant
requested an instruction based on the defense in ORS 163.412(1) that the penetration was ―part of a
medically recognized treatment or diagnostic procedure.‖ The trial court refused the instruction on the
ground that the defense applies only to medical personnel. The jury convicted on both the sexual-abuse and
penetration charges. Held: Reversed and remanded for a new trial. [1] The statutory defense for medical
treatment or diagnostic procedures applies to anyone giving medical treatment. [2] Because there was some
evidence (i.e., defendant‘s testimony that he was treating a rash) to support the instruction, the trial court
erred in refusing to give it.
                                                                                                          25

DEMURRERS
    See also ―Accusatory Instruments,‖ above.

         State v. Hankins, 342 Or 258, 151 P3d 149 (2007). Defendant was charged with delivering
marijuana to a minor in violation of former ORS 475.995 (1999). That offense is presumptively a Class A
felony, but only if the defendant is over 18 years old and at least three years older than a minor. Otherwise,
the offense is a violation offense only. The caption on the charge stated ―Victim Juv 3 Years Younger Def,‖
but the body of the charge did not contain that language. And neither the caption nor the charge alleged that
defendant was over 18 years old at the time of the delivery. Defendant did not demur to the indictment, but,
at the close of the state‘s evidence, moved for a judgment of acquittal on the Class A felony charge, arguing
that the indictment failed to allege the age-related factors necessary to constitute that offense. Held: [1] A
challenge to an indictment must be made by demurrer, not a motion for a judgment of acquittal. [2] A
demurrer under ORS 135.630(4) may be predicated on an argument that, although the indictment states some
offense, the facts stated do not constitute the offense that the indictment purports to charge. [3] The trial
court acted within its discretion when it refused to allow defendant to raise a demurrer mid-trial.
[4] Alternatively, defendant could have raised the issue in a motion in arrest of judgment after trial. And
although he made a post-trial motion that arguably could have been construed as a motion in arrest of
judgment, he did not assign error to that ruling, and thus the appellate court had no authority to remand for
the purpose of requiring the trial court to treat the post-trial motion as a motion in arrest of judgment.

       State v. Johnson, 340 Or 319, 131 P3d 173 (2006). In a capital case, the indictment was not subject
to demurrer for failing to allege the penalty-phase factors.

DISCOVERY

         Youngblood v. West Virginia, 547 US __, 126 S Ct 2188, 165 L Ed 2d 269 (2006). [1] The state‘s
obligation under Brady v. Maryland extends to evidence that is merely impeaching, as well as to evidence
that is exculpatory, and a violation of Brady ―occurs when the government fails to turn over even evidence
that is known only to police investigators and not to the prosecutor.‖ [2] ―The reversal of a conviction is
required upon a showing that the favorable evidence could reasonably be taken to put the whole case in such
a different light as to undermine confidence in the verdict.‖

        State v. Longo, 341 Or 580, 148 P3d 892 (2006). The prosecutor did not commit discovery or Brady
violation by failing to disclose statements by witness that were not documented in investigating officer‘s
report; moreover, defendant was not prejudiced because he received continuance to investigate after witness
statements were disclosed at trial.

         State v. Johnson, 210 Or App 733, ___ P3d ___ (2007). In defendant‘s trial for robbery, one of the
victims testified regarding the incident. During cross-examination of the investigating officer, the officer
testified that, in writing his report, he had relied on handwritten notes that he had made during the
investigation. Defense counsel then asked the court to require the officer to produce the notes. The court
denied the motion based on the prosecutor‘s statement that the notes did not contain anything that was not
incorporated into the report. Held: Because the prosecutor‘s statement that the notes were completely
incorporated into the report was not based on any evidence (i.e., the officer testified only that he had used the
notes to prepare the report, not that he had fully incorporated them in his report), the record does not
establish that the notes contained no ―relevant statements‖ that were required to be disclosed under
ORS 135.815(1)(a). Thus, a remand was necessary to allow defendant to review the notes and to allow the
trial court to determine whether the state‘s failure to provide the notes constituted a discovery violation.

         State v. White, 211 Or App 210, ___ P3d ___ (February 28, 2007). The prosecutor did not violate
ORS 135.845(2), which required him to ―promptly‖ notify defendant of the names of witnesses he intended
to call. Although the prosecutor determined a week before the disclosure that he wanted to determine the
26

identity of a particular fact witness, it took several days to find the person, and the prosecutor disclosed the
witness‘s name to the defense on the day that he learned the identity of the witness.

DRIVING UNDER THE INFLUENCE OF INTOXICANTS

        DUII: diversion

         State v. Romanov, 210 Or App 198, 149 P3d 1224 (2006). The doctrine of issue preclusion does not
operate to bar prosecution of defendant for fourth-degree assault based on the court‘s earlier determination,
in allowing defendant into diversion on a related DUII charge, that defendant‘s DUII offense ―did not
involve an accident resulting in physical injury.‖ Issue preclusion applies only if the issue that was decided
in the other proceeding was identical to the issue in the second proceeding. Although the court determined in
the diversion eligibility hearing that the DUII itself did not result in physical injury, the question in the
assault case was whether any of defendant‘s conduct, when accompanied by the necessary culpable mental
state, resulted in physical injury. Thus, because the issues were not identical, the trial court erroneously
dismissed the assault based on issue preclusion.

         State v. Gaino, 210 Or App 107, 149 P3d 1229 (2006). Defendant was charged with DUII and was
represented by counsel at the time she initially entered diversion. Later, defendant, pro se, filed a petition to
extend the duration of her diversion agreement and the statutorily required petition to enter a guilty plea to
the DUII. The trial court denied the motion to extend the diversion, and accepted the plea without advising
defendant of the risks of proceeding without counsel. On appeal, the defendant alleged that the trial court
erred in allowing her to proceed without first determining if defendant had voluntarily and intelligently
waived her right to counsel. Held: Defendant had a constitutional right to counsel when she petitioned for
extension of diversion and offered her guilty plea, and the trial court erroneously failed to determine whether
defendant was knowingly waiving that right before ruling on the motion and accepting the plea.

         State v. Maul, 205 Or App 14, 132 P3d 665, rev den 341 Or 80 (2006). After defendant‘s six-month
extension under ORS 813.225 to complete diversion had expired, he applied for additional extensions. Over
the state‘s objection, the court purported to continue the hearing for another six months. Upon his
completion of the treatment program, the court dismissed the DUII charge. The state appealed from the
dismissal. Held: Reversed and remanded for entry of the DUII conviction. [1] The Court of Appeals
reviews the dismissal ―for errors of law.‖ [2] ORS 813.225 does not permit any extensions other than one
six-month extension, nor does a court have authority to toll the termination date. [3] Because defendant did
not complete diversion within the prescribed period, the court was required to terminate diversion and enter
the conviction.

        DUII: breath test

         State v. Dinsmore, 342 Or 1, 147 P3d 1146 (2006). Based on a fatal vehicle accident, defendant was
convicted of vehicular assault, manslaughter, DUII, and other traffic offenses. The officer who administered
the breath test unlawfully interfered with defendant‘s right to consult with counsel under State v. Durbin, 335
Or 183 (2003), by failing to let her have a private conversation. Although ORS 813.320(1) permits
admission of the breath-test result for all charges other than DUII despite any noncompliance with implied-
consent requirements, the right-to-counsel rule in Durbin applies with equal force when the defendant is
arrested for DUII and other charges, too, and is asked to submit to a breath test. Consequently, the breath-
test result must be suppressed as to all the charges, not just the DUII charge.

         Davis v. DMV, 209 Or App 39, 146 P3d 378 (2006), rev den 342 Or 344 (2007). Any response that
is substantially short of ―an unqualified, unequivocal assent‖ to an officer‘s request to submit to a breath test
constitutes a refusal; that rule is subject only to a limited exception to allow the person to communicate with
                                                                                                          27

another person, such as an attorney, and only if the communication would not unreasonably delay the testing.
Here, the officer correctly treated as a ―refusal‖ the petitioner‘s statement that she would not submit to a
breath test until the officer repeated the Implied Consent rights and consequences to her.

        DUII: evidence

         State v. Barber, 209 Or App 604, 149 P3d 260 (2006). The state offered certified copies of signed
breath test certifications as a foundation for the admissibility of defendant‘s breath test. The defendant
objected, arguing that state was required to produce the lab tech who had signed the certifications; he also
objected to the admission of the reports based on Crawford v. Washington. The trial court overruled the
objection and admitted the evidence, and defendant was convicted at trial. On appeal, defendant abandoned
his Crawford objection (which since had been rejected in State v. Norman, 203 Or App 1, 125 P3d 15,
rev den 340 Or 308 (2006), but assigned error to the trial court‘s foundational ruling. Held: The certified
copies of signed certifications were admissible under the traditional public records exception of OEC 803(8).
Under 803(8) the admissibility of the document does not depend on defendant‘s ability to subpoena the tech
who conducted the test. (The court determined that OEC 803(25)(a) does not apply to certified copies of
signed certifications).

         State v. Williams, 206 Or App 691, 138 P3d 885, rev den 342 Or 117 (2006). Defendant was
arrested for DUII and refused to submit to a breath test. He moved to suppress the refusal on the ground that
he was denied an opportunity to consult privately with counsel in deciding whether to take the breath test.
He testified that he did not call counsel because he believed that the telephone at the station was monitored
and that his call would be recorded. The circuit court denied the motion, ruling that the mere possibility that
the phone call would be recorded would not violate his rights, and defendant was convicted at trial.
Held: Reversed and remanded. [1] The trial court erroneously concluded that the fact that a phone is
monitored is irrelevant because the state lacks authority to listen to the recording. [2] Because the court did
not make any finding on the ―crucial fact‖ of whether the phone line actually was recorded, the remedy is to
reverse the conviction and remand for the court to find whether the phone line was recorded. If it was
recorded, then the circuit court shall grant the motion to suppress and order a new trial; if not, it shall deny
the motion to suppress and reinstate defendant‘s conviction.
         Note: The opinion does not address whether defendant testified that he believed at the time of the
refusal that the phone was recorded, that he complained on that basis and asked to use a private phone, or
that his belief about the monitoring in fact caused him to refuse to take the test. It does not appear that the
court intended to hold that the arrestee‘s mere unexpressed suspicion that the offered telephone is monitored
requires suppression of a breath-test result or refusal. Rather, unless the defendant asks to consult with
counsel, he cannot insist that his right to do so was denied. And if the defendant had asked to consult with
counsel and the immediately available phone is monitored, it is reasonable to assume that the officer would
have offered a private phone.

         Davis v. DMV, 209 Or App 39, 146 P3d 378 (2006), rev den 342 Or 344 (2007). Any response that
is substantially short of ―an unqualified, unequivocal assent‖ to an officer‘s request to submit to a breath test
constitutes a refusal; that rule is subject only to a limited exception to allow the person to communicate with
another person, such as an attorney, and only if the communication would not unreasonably delay the testing.
Here, the officer correctly treated as a ―refusal‖ the petitioner‘s statement that she would not submit to a
breath test until the officer repeated the Implied Consent rights and consequences to her.

        State v. McHenry, 205 Or App 310, 134 P3d 1016 (2006). After defendant initially refused without
explanation to submit to a breath test, the officer noted the suspension period and asked him a second time if
he would consent to a breath test. Defendant responded, ―No, I‘m not blowing until I talk to my attorney,‖
and the officer treated that as a refusal. The trial court denied defendant‘s motion to suppress his refusal
concluding that his initial refusal was final. Held: Reversed. [1] ―We review the denial of a motion to
suppress a defendant‘s refusal to take a breath test for errors of law.‖ [2] Defendant‘s initial refusal was not
28

a ―final refusal‖ because the officer reopened the issue and gave him a second opportunity. [3] Defendant‘s
response constituted a request to consult with a lawyer, and the officer‘s failure to provide him with a
reasonable opportunity to obtain legal advice before deciding whether to submit to a breath test requires
exclusion of his refusal. [4] The Court of Appeals refused to consider the state‘s argument that defendant‘s
response ―did not constitute a request to consult with counsel‖ because the prosecutor did not make that
argument below and, if he had, ―defendant might have developed a different factual record.‖

        DUII: felony DUII

         State v. Eades, 208 Or App 173, 144 P3d 1003 (2006). [1] Under State v. McCoin, 190 Or App 532
(2003), the sentencing court did not commit error by counting defendant‘s prior DUIIs when calculating his
criminal-history score, even though those prior convictions were the basis of his conviction for felony DUII.
[2] It was not plain error for the court to impose both a prison sentence and a $2,000 fine, notwithstanding
that ORS 813.010(6)(c) establishes a minimum $2,000 fine ―if the person is not sentenced to a term of
imprisonment.‖ That statute refers to a minimum fine that must be imposed ―[i]n addition to any other
sentence that may be imposed,‖ and ORS 161.625 permits the imposition of a fine up to $100,000. [3] The
sentencing court did not commit plain error by finding defendant to be ineligible for temporary leave and
other forms of sentence modification under ORS 137.750; following State v. Clark, 205 Or App 338 (2006)
(denial of ORS 137.750 credits is not subject to Blakely).

        DUII: administrative license-suspension hearings

         State v. Vazquez-Escobar, 211 Or App 115, ___ P3d ___ (2007). ORS 809.235(1)(b) (2003), which
requires for permanent revocation of a driver license if the defendant has been convicted of DUII for a third
time, expressly applies to convictions that occur on or after the effective date of the Act (January 1, 2004),
even if the incident underlying the conviction occurred before that date. Because the legislative purpose
underlying the license revocation is remedial, not punitive, and because it does not in fact impose any
increased detriment, restraint, or deprivation that amounts to punishment, application of the law to acts
occurring before the date of the Act does not violate the ex post facto prohibition in Art I, § 21. For the same
reasons, the Act does not violate the federal Ex Post Facto Clause.

         Davis v. DMV, 209 Or App 39, 146 P3d 378 (2006), rev den 342 Or 344 (2007). Any response that
is substantially short of ―an unqualified, unequivocal assent‖ to an officer‘s request to submit to a breath test
constitutes a refusal; that rule is subject only to a limited exception to allow the person to communicate with
another person, such as an attorney, and only if the communication would not unreasonably delay the testing.
Here, the officer correctly treated as a ―refusal‖ the petitioner‘s statement that she would not submit to a
breath test until the officer repeated the Implied Consent rights and consequences to her.

        DUII: sentencing

         State v. Eades, 208 Or App 173, 144 P3d 1003 (2006). [1] Under State v. McCoin, 190 Or App 532
(2003), the sentencing court did not commit error by counting defendant‘s prior DUIIs when calculating his
criminal-history score, even though those prior convictions were the basis of his conviction for felony DUII.
[2] It was not plain error for the court to impose both a prison sentence and a $2,000 fine, notwithstanding
that ORS 813.010(6)(c) establishes a minimum $2,000 fine ―if the person is not sentenced to a term of
imprisonment.‖ That statute refers to a minimum fine that must be imposed ―[i]n addition to any other
sentence that may be imposed,‖ and ORS 161.625 permits the imposition of a fine up to $100,000. [3] The
sentencing court did not commit plain error by finding defendant to be ineligible for temporary leave and
other forms of sentence modification under ORS 137.750; following State v. Clark, 205 Or App 338 (2006)
(denial of ORS 137.750 credits is not subject to Blakely).
                                                                                                         29

DRUG OFENSES

         State v. Miller, 208 Or App 424, 144 P3d 1052 adh’d to on recon 210 Or App 476, 149 P3d 1251
(2006). [1] The statements of a criminalist in a crime-lab report, describing the result of the testing of a
substance, are ―testimonial‖ within the meaning of Crawford and for purposes of the 6th Amend. [2] A
defendant can invoke his right to cross-examine the criminalist by complying with ORS 475.235, as
interpreted in State v. Hancock, 317 Or 5 (1993), which requires him to notify the state that he wishes to have
the criminalist present at trial; requiring the defendant to comply with that process is a reasonable condition
on the defendant‘s ability to exercise his rights under the 6th Amend.
         See also State v. Dibbern, 209 Or App 602, 149 P3d 170 (2006) (following Miller); State v. Wells,
208 Or App 480, 144 P3d 1077 (2006) (same).

ESCAPE

         State v. Lane, 341 Or 433, 144 P3d 927 (2006). Defendant committed second-degree escape when
he escaped from the constructive custody of the jail, a correctional facility, by running from a courtroom
after the court revoked his release agreement and told him that he was ―reduced to custody.‖ The allegation
that he ―knowingly‖ escaped from a correctional facility required proof that he knew he was escaping, but
not that he knew that the location was a correctional facility.

         State v. Lonergan, 210 Or App 155, 149 P3d 1215 (2006). Defendant, who broke free from an
arresting officer, ran for more than 50 yards, and then fought the officer to avoid recapture, properly was
convicted of second-degree escape under ORS 162.155, by ―us[ing] or threaten[ing] to use physical force
escaping from custody.‖ Although defendant ―escaped‖ at the moment when he broke free from the officer,
the escape continued at least as long as the immediate pursuit of the escapee and until the officer was able to
regain control over defendant; thus, a rational trier of fact could find that he used force in escaping from
custody.

EVIDENCE

        Evidence: sufficiency of objection
        See also ―Appeals: preservation of error, ‗plain error‘ review,‖ above.

         State v. Roble-Baker, 340 Or 631, 136 P3d 22 (2006). Defendant filed a motion to suppress all of
her statements to police based on her argument that she was in ―compelling circumstances‖ and did not
receive Miranda warnings, and the circuit court denied that motion. On appeal, she argued, alternatively,
that the circumstances became compelling at any of various points during her contact with police and that the
court should have suppressed at least some of her statements. The state argued, based on State v. Brown, 310
Or 347, 359 (1990), that defendant‘s motion did not preserve her argument. Held: The motion triggered the
state‘s burden to establish that defendant‘s statements were not compelled. Although, on appeal, defendant
identifies three alternative points at which she contended the circumstances became compelling, neither the
state‘s obligation nor the trial court‘s inquiry changed. Thus, she preserved her Miranda claim by moving to
suppress all statements.

        State v. Garcia, 206 Or App 745, 138 P3d 927 (2006). Defendant challenged the trial court‘s denial
of his motion to exclude an audiotape that contained several 911 calls made by the victim. Because
defendant challenged the admission of the entire tape recording and did not distinguish among the various
recorded statements, the trial court‘s ruling admitting the tape was upheld because at least part of the tape
was admissible.
30

        Evidence: judicial notice (OEC 201)

          State v. Barber, 209 Or App 262, 147 P3d 915 (2006). [1] The Court of Appeals was entitled to take
judicial notice of a judicially noticeable fact for the first time on appeal, under OEC 201(f), which provides
that ―[j]udicial notice may be taken at any stage of the proceeding.‖ [2] The court‘s own records qualify as
sources for judicially noticed facts under OEC 201(b), which states that a judicially noticed fact must be one
not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of
the trial court; or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot
be questioned.

        Evidence: relevance (OEC 401, 402)

          State v. Bowen, 340 Or 487, 135 P3d 272 (2006). In the penalty phase of an aggravated-murder
trial, the court refused to allow the defense to elicit from defendant‘s ex-girlfriend her belief that defendant
should not be sentenced to death. Defendant argued that this violated his right to present mitigating
evidence. Held: The evidence was properly excluded under State v. Wright, 323 Or 8 (1996), because it
merely expressed the witness‘s opinion and was ―not relevant to any aspect of defendant‘s character or
background under ORS 163.150(1)(b)(D).‖

         State v. McBeth, 209 Or App 546, 149 P3d 212 (2006). The trial court correctly admitted testimony
of a witness that, when defendant engaged in the conduct that was the source of the tampering charge (his
attempts to induce her not to appear or to testify, in violation of ORS 162.285(1)(a) and (b)), she was in fear
of defendant because of rumors that he had been involved in murders of other people. Although it is not an
element of the crime that the defendant actually place the victim in fear, the fact that the victim was fearful
(and the reasons for her fear) was relevant under OEC 401 to prove that the victim credibly interpreted
defendant‘s conduct as an attempt to use his presence and his reputation to induce her not to appear or to
testify against him. Likewise, it was relevant to prove the mens rea element of the crime: that defendant
knowingly was attempting to induce her not to testify.

        Evidence: probative value vs. prejudice (OEC 403)

         Holmes v. South Carolina, 547 US __, 126 S Ct 1727, 164 L Ed 2d 503 (2006). Based on a home-
invasion robbery in which the elderly victim died after being beaten and raped, defendant was convicted of
murder and was sentenced to death. On appeal, he contended that the trial court erred in excluding his
proffered evidence that a third person actually had committed the. The state supreme court affirmed, ruling
that because the forensic evidence of defendant‘s guilt was overwhelming, the proffered evidence was too
speculative to create a ―reasonable inference‖ of defendant‘s innocence. Held: Reversed and remanded.
[1] Although states ―have broad latitude under the Constitution to establish rules excluding evidence from
criminal trial, * * * the Constitution guarantees criminal defendants a meaningful opportunity to present a
complete defense. This right is abridged by evidence rules that infringe upon a weighty interest of the
accused and are arbitrary or disproportionate to the purposes they are designed to serve.‖ [2] ―[W]ell-
established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by
certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury.‖ And
those rules may exclude evidence of third-party responsibility that is only ―speculative or remote.‖ [3] The
state‘s evidentiary rule in this case was ―arbitrary,‖ and hence violated the defendant‘s right to present a
defense, because the court excluded his proffered evidence of third-party responsibility based on its
assessment that the case against the defendant was strong: ―by evaluating the strength of only one party‘s
evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the
other side to rebut or cast doubt.‖

       State v. Tiner, 340 Or 551, 135 P3d 305 (2006). Evidence that defendant associated with the Aryan
Warriors prison gang while in prison in Nevada and had white-supremacist tattoos was relevant to rebut his
                                                                                                        31

penalty-phase evidence that he ―did not associate with problem inmates‖ while in prison; and the evidence
was not unfairly prejudicial.

         State v. Bowen, 340 Or 487, 135 P3d 272 (2006). [1] The state offered explicit photographs of
injuries that the murder defendant inflicted when he assaulted a different victim, using the same pistol later
used to kill the murder victim, earlier on the same day that the murder victim was killed. Defendant objected
that the photographs were unduly prejudicial. Held: The trial court did not abuse its discretion under
OEC 403 when it admitted the photographs. The photographs created no danger of unfair prejudice, ―other
than to evoke a person‘s natural revulsion regarding the beating that [the assault victim] endured.‖ [2] In the
penalty phase, the state introduced evidence that defendant had murdered a woman in 1989. Defendant
objected that evidence of that murder was unduly prejudicial under OEC 403. Held: The evidence of the
earlier murder was relevant to the penalty-phase question of future dangerousness; the evidence was not
unfairly prejudicial (i.e., encouraging the jury to make a decision on an improper basis); and the trial court
mitigated any risk of unfair prejudice by excluding gory photographs of the crime scene and instructing the
jury to weigh the evidence calmly and dispassionately. The court also rejected defendant‘s argument that the
evidence should have been excluded because he was not prepared to defend against a second murder: ―A
party‘s lack of preparedness to meet evidence is not a factor under OEC 403 for determining whether that
evidence should be excluded.‖

         State v. Knight, 209 Or App 562, 149 P3d 164 (2006), rev allowed 342 Or 473 (2007). The trial
court did not abuse its discretion under OEC 403 in admitting a taped statement in which he made
disparaging statements about his attorney. The tape was relevant to defendant‘s credibility, because it was
offered to show that defendant, in his testimony, had mischaracterized his prior statements on the tape about
other matters. Although the statements about the attorney were potentially prejudicial, the risk of prejudice
did not substantially outweigh the probative value of the rest of the evidence.
         Note: The court did not decide whether the trial court should have redacted the tape or allowed the
prosecution to offer only parts of the recording, because defendant did not make that argument on appeal. If
you have a case in which the defendant asks for redaction of a portion of your proffered evidence, you should
make a record of why redaction of prejudicial material is not necessary or feasible.

        Evidence: other crimes, wrongs, or acts (OEC 404(3), (4))

         State v. Johnson, 340 Or 319, 131 P3d 173 (2006). [1] The trial court properly admitted evidence of
defendant‘s drugging and sexually assaulting several other young women. ―The essential inquiry under
OEC 404(3) is not whether the testimony can be made to fit into one of the listed categories, but whether and
how it is logically relevant to a noncharacter issue in the case.‖ In the context of this case, that evidence
made it more likely that defendant drugged and raped this victim (distinguishing State v. Pratt).
[2] Testimony from defendant‘s probation officer did not violate OEC 404(3) or 403, because the officer did
not disclose any information regarding defendant‘s past crimes and addressed only where he lived during the
time of the murder, which was relevant to venue, ―an issue that defendant chose to contest.‖

        State v. Yong, 206 Or App 522, 138 P3d 37, rev den 342 Or 117 (2006). In a domestic-assault case
in which the victim testified but minimized the defendant‘s conduct, the trial court properly admitted
evidence of defendant‘s prior assaults on this victim and his former wife. That evidence was admissible
under OEC 404(3), even though identity was not at issue, ―because it tended to prove that when similarly
agitated in a domestic setting defendant will act violently and intentionally.‖

         State v. Cavaner, 206 Or App 131, 135 P3d 402 (2006). In a prosecution for third-degree assault
and DUII, the state offered evidence of defendant‘s prior participation in a DUII diversion program to show
that he had committed the assault ―recklessly.‖ The trial court excluded the evidence, and the state appealed.
Held: Reversed and remanded. [1] The evidence was relevant to show defendant‘s awareness of the risk that
someone might be injured by his intoxicated driving and his conscious disregard of that risk. [2] The
32

evidence was not subject to exclusion under OEC 403, because OEC 404(4) eliminated OEC 403 balancing
of prejudicial effect versus probative value. The due-process clause does not require exclusion of other-
crimes evidence in all cases.

        Evidence: impeachment by prior statement (OEC 613)

        State v. Knight, 209 Or App 562, 149 P3d 164 (2006), rev allowed 342 Or 473 (2007). The trial
court did not abuse its discretion under OEC 403 in admitting a taped statement in which he made
disparaging statements about his attorney. The tape was relevant to defendant‘s credibility, because it was
offered to show that defendant had mischaracterized his statements about other matters. Although the
statements about the attorney were potentially prejudicial, the risk of prejudice did not substantially outweigh
the probative value of the rest of the evidence.
        Note: The court did not decide whether the trial court should have redacted the tape or allowed the
prosecution to offer only parts of the recording, because defendant did not make that argument on appeal. If
you have a case in which the defendant asks for redaction of a portion of your proffered evidence, you should
make a record of why redaction of prejudicial material is not necessary or feasible.

        Evidence: lay opinion (OEC 701)

         State v. Barnes, 208 Or App 640, 145 P3d 261 (2006). [1] Defendant‘s offer of proof, which
included a lay witness‘s testimony that the victim appeared to be ―coming down‖ from the effects of
methamphetamine use, was sufficient to preserve his argument on appeal that the court erroneously refused
to permit evidence that the victim was ―under the influence of‖ methamphetamine. [2] A layperson‘s
opinion that another person is under the influence of methamphetamine is admissible as long as it is
rationally based on the layperson‘s perceptions. OEC 701. It is not necessary that the characteristics
observed were unique to people who are under the influence; rather, the witness‘s opinion may be rationally
based on observations that may be susceptible to more than one plausible interpretation (for example, the fact
that the person was ―irritable‖). [3] The fact that an expert opinion under OEC 702 might be useful to prove
a position does not mean that expert testimony is required, or that a lay opinion may not be offered to prove
the same point. [4] Because the excluded evidence had been offered to impeach the testimony of a witness
whose credibility was central to the state‘s case-in-chief, the exclusion of the evidence was not harmless.

         State v. Owens, 207 Or App 31, 139 P3d 984 (2006). ―Scientific evidence‖ is opinion evidence that
is proffered by an expert witness and possesses significantly increased potential to influence jurors as a
scientific assertion. Testimony by witnesses about their observations of blood draw and their direct
knowledge of the nurse‘s qualifications was not ―scientific evidence‖ that required a foundational showing
under Brown and O’Key; rather, it was merely lay opinion under OEC 701.

        Evidence: expert testimony (OEC 702)

         State v. Barnes, 208 Or App 640, 145 P3d 261 (2006). [1] Defendant‘s offer of proof, which
included a lay witness‘s testimony that the victim appeared to be ―coming down‖ from the effects of
methamphetamine use, was sufficient to preserve his argument on appeal that the court erroneously refused
to permit evidence that the victim was ―under the influence of‖ methamphetamine. [2] A layperson‘s
opinion that another person is under the influence of methamphetamine is admissible as long as it is
rationally based on the layperson‘s perceptions. OEC 701. It is not necessary that the characteristics
observed were unique to people who are under the influence; rather, the witness‘s opinion may be rationally
based on observations that may be susceptible to more than one plausible interpretation (for example, the fact
that the person was ―irritable‖). [3] The fact that an expert opinion under OEC 702 might be useful to prove
a position does not mean that expert testimony is required, or that a lay opinion may not be offered to prove
the same point. [4] Because the excluded evidence had been offered to impeach the testimony of a witness
whose credibility was central to the state‘s case-in-chief, the exclusion of the evidence was not harmless.
                                                                                                            33


        State v. Clemens, 208 Or App 632, 145 P3d 294 (2006), rev den 342 Or 299 (2007). In response to
questioning about a child victim‘s account of long-term abuse, a police officer explained that, in his
experience, it was not uncommon for a victim –even when asked for a chronological account -- to first
recount the more significant abusive events, and then describe less-significant events later in the interview.
[1] The testimony was not a comment on the credibility of a witness, in violation of State v. Milbradt, 305 Or
621 (1988), because it did not suggest that the victim‘s account was more credible than that of a victim
whose accounts were chronological. [2] The officer‘s testimony based on his experience was not ―scientific
evidence‖ that requires a Brown foundation under OEC 702, because it did not possess significantly
increased potential to influence the trier of fact as a scientific assertion.

        State v. Owens, 207 Or App 31, 139 P3d 984 (2006). Testimony by witnesses about their
observations of blood draw and their direct knowledge of the nurse‘s qualifications was not ―scientific
evidence‖ that required a foundational showing under Brown and O’Key, and OEC 702 did not require
exclusion. The testimony was merely lay opinion under OEC 701.

        Evidence: scientific evidence

        State v. Clemens, 208 Or App 632, 145 P3d 294 (2006), rev den 342 Or 299 (2007). In response to
questioning about a child victim‘s account of long-term abuse, a police officer explained that, in his
experience, it was not uncommon for a victim – even when asked for a chronological account -- to first
recount the more significant abusive events, and then describe less-significant events later in the interview.
[1] The testimony was not a comment on the credibility of a witness, in violation of State v. Milbradt, 305 Or
621 (1988), because it did not suggest that the victim‘s account was more credible than that of a victim
whose accounts were chronological. [2] The officer‘s testimony based on his experience was not ―scientific
evidence‖ that requires a Brown foundation under OEC 702, because it did not possess significantly
increased potential to influence the trier of fact as a scientific assertion.

        Evidence: hearsay exceptions — statement not hearsay (OEC 801(4))

         State v. Johnson, 340 Or 319, 131 P3d 173 (2006). The trial court properly admitted as
rehabilitative evidence under OEC 801(4)(a)(B) testimony that the witness had told a friend that defendant
had drugged and raped her.

        Evidence: hearsay exceptions — ―excited utterance‖ (OEC 803(2))

        State v. Longo, 341 Or 580, 148 P3d 892 (2006). Excited utterances made by wife victim were
properly admitted, because she made the statements soon after being told by defendant that he no longer
loved her, and she was upset, sobbing, and visibly shaken when she made the statements.

        State v. Yong, 206 Or App 522, 138 P3d 37, rev den 342 Or 117 (2006). In a domestic-assault case
in which the victim testified but minimized the defendant‘s conduct, the trial court admitted the victim‘s
recorded 911 calls on January 11 and 16 and the statements she made to the investigating officer on January
16 about both that incident and the earlier incident; the court ruled that all the statements were excited
utterances under OEC 803(2). Held: Affirmed. [1] ―The trial court finds the facts that underlie the
application of OEC 803(2), and we will not disturb those findings if evidence in the record supports them.
* * * [But], an appellate court reviews the trial court‘s legal conclusion that a statement is or is not an excited
utterance as a matter of law.‖ [2] Even thought the victim‘s statements to the 911 operator and the
responding officer were prompted by questions, they constituted excited utterances under the totality of the
circumstances. [3] In construing OEC 803(2), ―it is permissible to look to federal authorities interpreting
FRE 803(2),‖ the comparable federal exception. [4] The trial court properly concluded that the startling
nature of the event on January 16 made the victim‘s statements to the officer on that date about the earlier
34

events of January 11 an excited utterance, too. But ―to ensure that a hearsay statement is not the product of
conscious reflection or fabrication and there that it is sufficiently reliable that the declarant need not be called
to testify to it, there must be a either a direct or indirect relationship between a previous event and a later
startling event, such that the latter is likely, under the stress of excitement that it has generated, to evoke an
exclamation about the former.‖ The record establishes that connection in this case.

        Evidence: hearsay exceptions — ―state of mind‖ (OEC 803(3))

         State v. Johnson, 340 Or 319, 131 P3d 173 (2006). The trial court correctly admitted as ―state of
mind‖ evidence under OEC 803(3) the victim‘s statement, on the night she disappeared, that she intended to
go to defendant‘s house. The court cannot be faulted for failing to give a limiting instruction that defendant
did not request. Admission of that statement did not violate the Confrontation Clause as construed in
Crawford because the statement was not ―testimonial.‖

         State v. McBeth, 209 Or App 546, 149 P3d 212 (2006). The trial court correctly admitted testimony
of a witness that, when defendant engaged in the conduct that was the source of the tampering charge (his
attempts to induce her not to appear or to testify, in violation of ORS 162.285(1)(a) and (b)), she was in fear
of defendant because of rumors that he had been involved in murders of other people. Although it is not an
element of the crime that the defendant actually place the victim in fear, the fact that the victim was fearful
(and the reasons for her fear) was relevant under OEC 401 to prove that the victim credibly interpreted
defendant‘s conduct as an attempt to use his presence and his reputation to induce her not to appear or to
testify against him. Likewise, it was relevant to prove the mens rea element of the crime: that defendant
knowingly was attempting to induce her not to testify.

        Evidence: hearsay exceptions — statements relating to child abuse (OEC 803(18a)(b))

         State v. Rodriguez-Castillo, 210 Or App 479, 151 P3d 931 (2007). Defendant, who was convicted
of multiple counts of sex abuse, challenged the admissibility of the hearsay testimony of a police detective
concerning statements that the victim made to him through an interpreter. Held: Statements by the victim
were admissible under OEC 803(18a)(b), the exception for statements concerning acts of abuse, because the
victim testified at trial and was subject to cross-examination. The additional levels of hearsay – the
interpreter‘s translation of victim‘s statements and the officer‘s testimony about those statements – were
admissible under the hearsay catch-all exception (OEC 803(28)).

         State v. Torres, 206 Or App 436, 136 P3d 1132 (2006). Defendant assaulted his fiancée in front of
her children and was charged with those crimes. Two days before trial, the prosecutor filed a notice of intent
to rely on hearsay statements of one of the children under OEC 803(18a)(b). The trial court denied
defendant‘s motion to exclude the testimony, finding ―good cause‖ for the failure to comply with the 15-day
notice requirement, and defendant was convicted at trial based in part on the child‘s out-of-court statements.
Held: Reversed. [1]The mere fact that plea negotiations were ongoing up until the state filed the notice was
not good cause for the state‘s failure to provide the required notice 15 days before trial. (The court declined
to decide whether a prosecutor may rely on an affirmative statement by defense counsel about the pendency
of a plea or other waiver of the need for a trial). [2] Likewise, the trial court‘s conclusion that the child‘s
unanticipated unavailability at trial did not support a good-cause finding, because the state failed to show that
it had made attempts to subpoena the child before the night before trial and did not otherwise explain why
―unavailability‖ constituted good cause. [3] Admission of the child‘s statements was not harmless because
they were pivotal in this ―swearing contest.‖

        Evidence: hearsay exceptions — against penal interest (OEC 804(3)(c))

         State v. Cook, 340 Or 530, 135 P3d 260 (2006). Statements made by two codefendants to police
shortly after their arrest, which implicated both of them as well as defendant in a double homicide, were
                                                                                                           35

admissible under OEC 804(3)(c): The declarants were unavailable because they refused to testify at
defendant‘s trial; the statements subjected the declarants to criminal liability; and the statements were such as
would not have been made unless they were true. The court refused to ―parse‖ the statements into ―single
sentences or phrases‖ and examine each separately; instead the court considered the statements as a whole,
even though some parts inculpated the declarants and some parts inculpated defendant.

        Evidence: Confrontation Clause, Crawford objections

         Whorton v. Bockting, 549 US ___ (05-595) (February 28, 2007). The rule in Crawford v.
Washington, 541 US 36 (2004), is a new rule because it departed from prior precedent; however, it was not a
―watershed rule‖ of criminal procedure, and therefore does not apply retroactively to cases already final on
direct review. To qualify as a watershed rule, the rule must (1) be necessary to prevent an ―impermissibly
large risk‖ of an inaccurate conviction, and (2) alter the bedrock procedural elements essential to the
proceeding‘s fairness. It is unclear whether the Crawford rule increased or decreased the number of
unreliable statements that can be admitted in criminal trials. Moreover, it is not sufficient that the Crawford
rule is based on the bedrock right to confront witnesses; rather, the new rule itself must constitute a
previously unrecognized bedrock procedural element that is essential to the fairness of a proceeding.

         Davis v. Washington, 547 US __, 126 S Ct 2266, 165 L Ed 2d 224 (2006). The Court considered
two domestic-assault cases (Davis and Hammon v. Indiana) in which the state courts admitted at trial hearsay
statements from the absent victims over the defendants‘ Crawford objections. [1] ―Statements are
nontestimonial [for Crawford purposes] when made in the course of police interrogation under circumstances
objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an
ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such
on-going emergency, and that the primary purpose of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution.‖ [2] When the assault victim in Davis talked with the 911
operator (whom the Court accepted as a police agent) while the incident was continuing, her statements were
not testimonial even though they were prompted by the operator‘s questions. Once the assailant left the
premises, however, and the operator questioned the victim about the past events, her statements were
testimonial. ―The Framers were no more willing to exempt from cross-examination volunteered testimony or
answers to open-ended questions than they were to exempt answers to detailed interrogation.‖ [3] The
assault victim‘s statements in Hammon, which were elicited by an investigating officer while the defendant
was detained in a separate room and which recounted what had happened, ―are inherently testimonial‖ for
Crawford purposes, even though the state court had determined that the statements were excited utterances
and hence admissible hearsay. [4] In dictum, the Court reiterated that ―the rule of forfeiture by wrongdoing
extinguishes confrontation claims on essentially equitable grounds‖ such that ―one who obtains the absence
of a witness by wrongdoing forfeits the constitutional right to confrontation.‖ The Court further cited
FRE 804(b)(6), ―which codifies the forfeiture doctrine,‖ and noted that federal courts of appeal ―have
generally held the government only to the preponderance-of-the-evidence standard‖ and have held that the
court may consider the hearsay statement itself in making that determination.

         State v. Cook, 340 Or 530, 135 P3d 260 (2006). [1] Under the confrontation clause of Article I,
section 11, hearsay statements made by codefendants were admissible in defendant‘s murder trial because the
codefendants were unavailable (because they refused to testify) and their statements carried sufficient indicia
of reliability (they subjected the declarants to criminal liability, the declarants did not attempt to shift blame
to defendant, and the declarants had not been threatened or offered leniency or a plea bargain in exchange for
their statements). [2] Under the Confrontation Clause of the Sixth Amendment as interpreted in Crawford v.
Washington, 541 US 36 (2004), the codefendants‘ statements were inadmissible, because although the
declarants were unavailable, their statements were ―testimonial‖ and defendant had no opportunity to cross-
examine them. [3] The error in admitting the statements was harmless beyond a reasonable doubt, because
several other trial witnesses testified to substantially the same facts as were in the hearsay statements, and the
state‘s case against defendant was strong.
36


        State v. Johnson, 340 Or 319, 131 P3d 173 (2006). The trial court correctly admitted as ―state of
mind‖ evidence under OEC 803(3) the victim‘s statement, on the night she disappeared, that she intended to
go to defendant‘s house. Admission of that statement did not violate the Confrontation Clause as construed in
Crawford because the statement was not ―testimonial.‖

         Peed v. Hill, 210 Or App 704, ___ P3d ___ (2007). The post-conviction court correctly dismissed
the petition. Petitioner‘s claims of sentencing-court error were based on Crawford v. Washington; Crawford
did not announce a ―watershed‖ rule, and thus it does not apply retroactively. Petitioner‘s claims of
inadequate assistance of counsel based on counsel‘s failure to foresee Crawford fail because those claims
contradict his assertion that his present claim ―reasonably could not have been raised‖ before Crawford;
moreover, he offers no persuasive reason why counsel should have anticipated that the United States
Supreme Court would deviate from its previous precedent when it decided Crawford.

         State v. Pitt, 209 Or App 270, 147 P3d 940 (2006). [1] The victims‘ videotaped statements to the
Lane County Advocacy Center, which provides services related to child-abuse investigation, in the context of
a ―forensic interview,‖ were testimonial under Crawford, and were not meaningfully different from those at
issue in State v. Mack, 337 Or 586 (2004). [2] Admission of the testimony was ―plain error,‖
notwithstanding that Crawford had not yet been decided. [3] The error was not harmless because the
victims‘ credibility was the linchpin of the case and the videotapes allowed the jury to make a first-hand
assessment of their credibility.

         State v. Camarena, 208 Or App 575, 145 P3d 267 (2006). Statements made to a 911 operator by a
domestic-violence victim after the victim made an incomplete call did not violate defendant‘s rights to
confront witnesses under either Art. I, § 11 or the 6th Amend. [1] In evaluating whether an out-of-court
statement violates a defendant‘s rights under Art. I, § 11, Oregon courts rely on the test announced in Ohio v.
Roberts, 448 US 56 (1980): the declarant must be unavailable, and the statements must have adequate
indicia of reliability. Here, the victim was unavailable and because the statements were excited utterances
and thus were admitted under a ―firmly rooted‖ hearsay exception, they met the reliability requirement. [2]
Statements are ―testimonial‖ under the 6th Amend. if the totality of the circumstances objectively indicate
that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.
Factors relevant to that inquiry are: the temporal relationship between the statements and the events; whether
the exchange related to responding to an ongoing emergency, as opposed to investigating past criminal
conduct; and the formality of the questioning. Here, when the victim made the statements, the danger of a
renewal of the assault had not fully abated, the questioning related to whether the emergency still existed,
and the victim‘s statements were ―frantic,‖ rather than made in response to formal questioning; thus, her
statements were not testimonial.

         State v. Miller, 208 Or App 424, 144 P3d 1052 adh’d to on recon 210 Or App 476, 149 P3d 1251
(2006). [1] The statements of a criminalist in a crime-lab report, describing the result of the testing of a
substance, are ―testimonial‖ within the meaning of Crawford and for purposes of the 6th Amend. [2] A
defendant can invoke his right to cross-examine the criminalist by complying with ORS 475.235, as
interpreted in State v. Hancock, 317 Or 5 (1993), which requires him to notify the state that he wishes to have
the criminalist present at trial; requiring the defendant to comply with that process is a reasonable condition
on the defendant‘s ability to exercise his rights under the 6th Amend.
         See also State v. Wells, 208 Or App 480 (2006) (following Miller).

         State v. Miles, 208 Or App 252, 145 P3d 242 (2006). [1] The victim‘s statements to a police officer
were testimonial because there was no ongoing emergency and the purpose of the interrogation was to
establish past events potentially relevant to a later prosecution; thus, admission of her out-of-court statements
violated the Sixth Amendment Confrontation Clause. [2] Defendant‘s conviction for harassment could not be
upheld on harmless-error grounds, notwithstanding that defendant had admitted to pushing the victim,
                                                                                                         37

because the prosecutor relied heavily on the victim‘s statements and thus their admission was not harmless
beyond a reasonable doubt.

         McDonald v. Belleque, 206 Or App 655, 138 P3d 392, rev den 341 Or 392 (2006). Petitioner filed a
petition for post-conviction relief, claiming that his attorney in 1997 should have objected to the sentencing
court‘s reliance on out-of-court statements that petitioner claims now would be considered ―testimonial‖
under Crawford v. Washington. The post-conviction court dismissed the petition as time-barred.
Held: Affirmed. Even if Crawford applies retroactively to cases on collateral review (and if ―retroactivity‖
overrides the statute of limitations), petitioner‘s claim of sentencing-court error fails because the
Confrontation Clause does not apply at sentencing.

         State v. Derschon, 206 Or App 574, 138 P3d 30, rev den 341 Or 392 (2006). Defendant and Davis
were charged with multiple crimes based on an armed home-invasion robbery they committed together.
Davis was caught and interrogated, and he confessed and identified defendant as his accomplice. Davis
pleaded guilty but refused to testify at defendant‘s trial. Without any objection from defendant, the trial
court admitted Davis‘s statements identifying defendant. On appeal, defendant claimed that that was plain
error in light of Crawford. Held: Affirmed. [1] ―The error is plain because it is beyond dispute that Davis‘s
statement inculpating defendant, made in response to police interrogation, was testimonial, * * * and that
defendant had had no opportunity to cross-examine him.‖ [2] ―However, we decline to exercise our
discretion because the gravity of error in admitting the erroneous testimonial hearsay was insignificant‖ in
light of the other, overwhelming evidence that defendant was the accomplice. ―Had the proper objection
been made during trial, the likelihood that the state would have proceeded without the hearsay evidence is
especially pronounced.‖
         Note: The court acknowledged that State v. Gornick may require a different analysis of the plain-
error issue, but it held that any error was essentially harmless anyway.

EX POST FACTO
     See also ―Sentencing: constitutional issues — ex post facto,‖ below.

         State v. Illig-Renn, 341 Or 228, 142 P3d 62 (2006). ORS 162.247(1)(b), which defines the offense
of interfering with a peace officer by refusing to obey a ―lawful order,‖ is not constitutionally overbroad
under Art. I, § 8, or the 1st Amend. Nor is it facially vague: it does not permit arbitrary and retroactive
punishment under the equal privileges clause in Art. I, § 20, or the ex post facto clause of Art. I, § 21, and
provides sufficient warning under the 14th Amend. Due Process Clause.

         State v. Vazquez-Escobar, 211 Or App 115, ___ P3d ___ (2007). ORS 809.235(1)(b) (2003), which
requires for permanent revocation of a driver license if the defendant has been convicted of DUII for a third
time, expressly applies to convictions that occur on or after the effective date of the Act (January 1, 2004),
even if the incident underlying the conviction occurred before that date. Because the legislative purpose
underlying the license revocation is remedial, not punitive, and because it does not in fact impose any
increased detriment, restraint, or deprivation that amounts to punishment, application of the law to acts
occurring before the date of the Act does not violate the ex post facto prohibition in Art I, § 21. For the same
reasons, the Act does not violate the federal Ex Post Facto Clause.

FAILURE TO APPEAR

         State v. Crawford, 208 Or App 340, 144 P3d 1073 (2006). A person commits the crime of failure to
appear if the person is released pursuant to a release agreement and thereafter fails to appear in court as
required. The fact that the court has ―revoked‖ the release agreement based on a failure to comply with other
conditions of release does not immunize the defendant from the obligation to appear in court; that is, it is not
necessary for the state to prove that defendant was still entitled to release under the agreement at the time of
the failure to appear.
38


         State v. Ford, 207 Or App 407, 142 P3d 107 (2006). A defendant commits first-degree failure to
appear by failing to appear in court as required after being released ―from custody‖ pursuant to a release
agreement. ―Custody‖ means actual or constructive restraint by a peace officer pursuant to an arrest or court
order. Here, defendant had appeared at arraignment voluntarily, and there was no evidence that he was
restrained by a peace officer; the mere fact that his release agreement stated that he had been released ―from
custody‖ was insufficient.

        State v. Camarena-Velasco, 207 Or App 19, 139 P3d 979 (2006). Defendant signed a single release
agreement promising to appear at all court proceedings in two cases. His two convictions for failure to
appear at a single court appearance set on both cases should have merged because the offenses did not violate
separate statutory provisions under ORS 161.067(1). Following State v. Eastman, 112 Or App 256 (1992)
(gravamen of crime of failure to appear is the violation of a release agreement).

FORFEITURE

        Lincoln Interagency Narcotics Team v. Kitzhaber, 341 Or 496, 145 P3d 151 (2006). Ballot
Measure 3 (Oregon Property Protection Act) does not contain two or more constitutional amendments, and
thus does not violate of the separate-vote requirement of Art. VII, § 1.

FORMER JEOPARDY

         State v. Warner, 342 Or 361, ___ P3d ___ (2007). A previous prosecution on citation for careless
driving did not bar a separate prosecution for DUII and reckless driving arising from the same incident.
ORS 153.108, which provides that conviction on an infraction does not bar a separate prosecution for a crime
based on the same incident, overrides the former-jeopardy bar in ORS 131.515(2), (3), and (4), even if the
infraction is a lesser-included offense. And because ―careless driving and reckless driving are not the ‗same
offense‘ for purposes of ORS 131.515(1),‖ defendant‘s conviction for the former does not bar, under
ORS 131.515(1), his prosecution for the latter. Based on State v. Selness/Miller, 334 Or 515 (2002), the
prosecution of the infractions was not a prosecution for a ―crime‖ under the double-jeopardy bar in Article I,
section 12.

         State v. Roeder, 209 Or App 199, 147 P3d 363 (2006). A violation conviction under ORS 813.095
for refusing to take a breath test does not constitute an Art. I, § 12 former-jeopardy bar to a later prosecution
for the DUII based on the driving that was the basis for the DUII arrest, even though the violation requires a
fine of at least $500 and a maximum of $1,000, and subjects the person to a suspension of driving privileges.

        State v. Hewitt, 206 Or App 680, 138 P3d 873 (2006). Based on a single incident, defendant was
charged with DUII and DWS. At arraignment, the prosecutor reduced the DWS to a violation pursuant to
ORS 161.566(1). When defendant failed to appear on the trial date on the DWS, the court entered a default
judgment. Defendant later moved to dismiss the DUII on the statutory and constitutional former-jeopardy
grounds. The trial court granted the motion, concluding that, because the DWS originally was charged as a
misdemeanor, it was ―criminal‖ for purposes of the former-jeopardy provisions. Held: Reversed and
remanded based on State v. Page, 200 Or App 55, rev den (2005). Even if defendant was arrested and
detained for the DWS charge, that pretrial procedure did not render the prosecution criminal in nature.

        State v. Baldwin, 206 Or App 643, 138 P3d 867, rev den 341 Or 366 (2006). Defendant moved to
dismiss forgery charges in Multnomah County on the ground that his previous forgery convictions in
Columbia County barred the new charges. The trial court denied the motion on both state statutory and
constitutional grounds, ruling that defendant had failed to prove that the Multnomah County offenses were
―reasonably known‖ to the Columbia County prosecutor. Held: Affirmed. [1] Although the precise scope of
the ―reasonably known‖ element of the statutory former-jeopardy provision is unclear, defendant cannot
                                                                                                          39

prevail under any possible interpretation. That is, the record does not establish either that the charges in
either county were based on the same conduct or that the first prosecutor was aware of such a fact.
Moreover, the mere fact that one of the charges involved the same check did not establish that the Columbia
County prosecutor — who charged defendant only with the making of the check — knew or should have
known about defendant‘s subsequent uttering of the check. [2] Defendant‘s state constitutional argument
fails because that test, too, requires proof that the prosecutor knew or reasonably should have known of the
facts relevant to the second charge at the time of the first prosecution.

FURNISHING ALCOHOL TO A MINOR

          State v. McCathern, 211 Or App 171, ___ P3d ___ (2007). Under ORS 161.105, a culpable mental
state is not required for an offense defined outside the criminal code if the statute ―clearly indicates a
legislative intent to dispense with any culpable mental state requirement for the offense or for any material
element thereof.‖ The crime of furnishing alcohol to a minor, in violation of ORS 471.410(2), does not
require proof of a culpable mental state as to the age of the minor, because the context of the statute ―clearly
indicates‖ the legislature‘s intent not to require a culpable mental state. Specifically, the offense dates back
to 1887, and the predecessors to the current statute repeatedly have been construed not to require proof of
knowledge of age.

GUILTY PLEAS

         State v. Dinsmore, 342 Or 1, 147 P3d 1146 (2006). If charges are dismissed as part of a plea
agreement, a trial court may not later reinstate the dismissed charges if petitioner later successfully
challenges the conviction that was entered pursuant to the agreement, unless the agreement expressly
provides that the dismissals will be vacated. In this case, the trial court on remand lacked legal authority to
reinstate the charges that it had dismissed in the original judgment, because the agreement did not authorize
reinstatement of the dismissed charges.
         Note: Because the charge to which defendant pleaded guilty was a lesser-included offense of the
charged manslaughter, and the manslaughter charge was never dismissed, defendant properly was tried on
that charge on remand.

        State v. Tannehill, 341 Or 205, 141 P3d 584 (2006). Under ORS 133.335(3), a defendant who
successfully appeals a judgment of conviction based on a conditional plea is entitled to ―withdraw the plea.‖
The term ―the plea‖ means all concessions that underlie the entry of the plea; thus, in this case, although
defendant‘s claims on appeal related only to one charge, he was entitled to withdraw his pleas to both of the
charges to which he conditionally pleaded guilty.

        State v. Chavez, 211 Or App 142, ___ P3d ___ (2007). Because defendant did not unequivocally,
unconditionally, and unambiguously accept the prosecutor‘s plea agreement before the prosecutor revoked it,
he was not entitled to insist on receiving the benefits of the offer. Even assuming that a statement by the
prosecutor referring to a ―deadline‖ could be construed as a promise to keep the offer open, it was not an
enforceable promise because it was not supported by consideration; thus, the offer was revocable at any time
before defendant accepted it.

        State v. Dahlen, 210 Or App 362, 149 P3d 1234 (2006). Because defendant‘s convictions were
based on his conditional guilty plea, ORS 135.335(3) requires the appellate court, as a remedy for his
successful challenge to a pretrial order on appeal, to remand to allow him the opportunity to decide whether
to adhere to his plea or to withdraw it.
40

HABEAS CORPUS PROCEEDINGS
     See also ―Inmates,‖ below.

        Habeas corpus: federal-court proceedings

         Whorton v. Bockting, 549 US ___ (05-595) (February 28, 2007). The rule in Crawford v.
Washington, 541 US 36 (2004), is a new rule because it departed from prior precedent; however, it was not a
―watershed rule‖ of criminal procedure, and therefore does not apply retroactively to cases already final on
direct review. To qualify as a watershed rule, the rule must (1) be necessary to prevent an ―impermissibly
large risk‖ of an inaccurate conviction, and (2) alter the bedrock procedural elements essential to the
proceeding‘s fairness. It is unclear whether the Crawford rule increased or decreased the number of
unreliable statements that can be admitted in criminal trials. Moreover, it is not sufficient that the Crawford
rule is based on the bedrock right to confront witnesses; rather, the new rule itself must constitute a
previously unrecognized bedrock procedural element that is essential to the fairness of a proceeding.

         Lawrence v. Florida, 549 US ___ (05-8820) (February 20, 2007). The tolling provision in 28 USC
§ 2244(d)(1) provides that the one-year AEDPA statute of limitations is triggered by ―the date on which the
judgment [of a state court conviction] became final by the conclusion of direct review or the expiration of the
time for seeking such review.‖ Under subsection (d)(2), that period is tolled while ―a properly filed
application for State post-conviction or other collateral review is pending.‖ After petitioner‘s conviction and
death sentence were affirmed by the state Supreme Court, he filed a petition for state post-conviction relief
364 days into the limitations period. After the state courts finally disposed of his post-conviction action, he
filed a petition for certiorari in the United States Supreme Court, which was denied. Then, 113 days after
the United States Supreme Court denied certiorari, he filed a petition for federal habeas corpus relief,
arguing that the statute of limitations was tolled for the entire time during which his petition for certiorari
was pending. The district court dismissed, and the Eleventh Circuit affirmed the judgment of dismissal; the
United States Supreme Court granted certiorari. Held: Affirmed. [1] A petition for state post-conviction
relief ―remains pending‖ ―until the application has achieved final resolution through the State‘s post-
conviction procedures.‖ A petition for certiorari is not part of the state’s post-conviction procedures. Thus,
the statutory tolling provision does not apply. [2] Petitioner was not entitled to equitable tolling of the statute
of limitations because ―attorney miscalculation of a deadline‖ does not justify equitable tolling.

         Carey v. Musladin, 549 US ___ (05-785) (December 11, 2006). At petitioner‘s murder trial,
members of the victim‘s family sat in the front row of the spectators‘ gallery wearing buttons displaying the
victim‘s image. The trial court denied petitioner‘s motion to order the family members not to wear the
buttons, and petitioner was convicted at trial. The state appellate courts rejected petitioner‘s argument that
his right to a fair trial was violated by the ruling, and petitioner sought federal habeas corpus relief. The
federal district court denied relief, but the Ninth Circuit Court of Appeals reversed, concluding that the state
court‘s decision was an unreasonable application of clearly established federal law. The United States
Supreme Court granted certiorari. Held: Reversed. The Court previously has held that certain courtroom
practices (such as compelling defendants to wear prison garb and ordering uniformed troopers to sit
immediately behind the defendant at trial) are ―inherently prejudicial‖ and violate defendants‘ fair-trial
rights. However, it has never held that the conduct of private persons can deprive a defendant of a fair trial
or otherwise violate the Due Process Clause. Thus, the state courts‘ application of prior Supreme Court
precedent was not unreasonable.

         House v. Bell, 547 US __, 126 S Ct 2064, 165 L Ed 2d 1 (2006). In 1985, petitioner‘s neighbor was
found dead, having been beaten and perhaps sexually assaulted. Based on circumstantial evidence
connecting petitioner to the crime, he was convicted of the murder and was sentenced to death. The
conviction and sentence was affirmed on direct appeal, and in 1990 petitioner unsuccessfully sought post-
conviction relief. Years later, based on newly obtained DNA evidence and witness statements that suggested
that the victim‘s husband was actual murderer, petitioner filed a second petition for post-conviction relief
                                                                                                           41

asserting new inadequate-assistance claims. After the state court held the petition was barred, petitioner filed
a § 2254 petition asserting the procedurally defaulted claims and sought to obtain relief from his default
under the Schlup v. Delo ―actual innocence‖ exception. Held: Remanded for hearing on those claims.
[1] Under Schlup, ―although to be credible a gateway claim requires new reliable evidence — whether it be
exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was
not presented at trial, the habeas court‘s analysis is not limited to such evidence. * * * The court‘s function is
not to make an independent factual determination about what likely occurred, but rather to assess the likely
impact of the evidence on reasonable jurors.‖ [2] ―[T]he Schlup standard does not require absolute certainty
about the petitioner‘s guilt or innocence. A petitioner‘s burden at the gateway stage is to demonstrate that
more likely than not, in light of the new evidence, no reasonable juror would find him guilty beyond a
reasonable doubt.‖ [3] The strict standards in AEDPA that govern successive § 2254 petitions and new
evidentiary hearings (§ 2244(b)(2)(B); § 2254(e)(2)) do not apply to a Schlup claim asserted in a first
petition. [4] Although ―this is not a case of conclusive exoneration, * * * this is the rare case where — had
the jury heard all the conflicting evidence — is it more likely than not that no reasonable juror viewing the
record as a whole would lack reasonable doubt.‖ Consequently, he ―may proceed on remand with
procedurally defaulted constitutional claims.‖ [5] The Court‘s decision in Herrera v. Collins, which left
open the possibility of a freestanding actual-innocence claim, implied that any such claim ―requires more
convincing proof of innocence than Schlup.‖ Because petitioner‘s evidence does not meet that higher
standard, it is unnecessary to consider whether such a freestanding claim is available.

         Hill v. McDonough, 547 US __, 126 S Ct 2096, 165 L Ed 2d 44 (2006). Petitioner, a death-row
inmate, filed suit under 28 USC § 1983 to enjoin the lethal-injection procedure, contending that it might
cause him severe pain in violation of the Eighth Amendment. The district court construed the suit as one for
habeas corpus relief and dismissed it based on the successive-petition bar in 28 USC § 2244. Held:
Reversed and remanded. [1] ―Challenges to the lawfulness of confinement and to particulars affecting its
duration are the province of habeas corpus. An inmate‘s challenge to the circumstances of his confinement,
however, may be brought under § 1983.‖ [2] Because petitioner‘s ―action, if successful, would not
necessarily prevent the State from executing him by lethal injection‖ but merely alter the method by which
that is done, ―a grant of injunctive relief could not be seen as barring the execution of [his] sentence.‖ Thus,
a § 1983 action is proper. [3] ―Filing an action that can proceed under § 1983 does not entitle the
complainant to an order staying an execution as a matter of course. Both the State and the victims of crime
have an important interest in the timely enforcement of a sentence. * * * [I]nmates seeking time to challenge
the manner in which the State plans to execute them must satisfy all the requirements for a stay, including a
showing of a significant possibility of success on the merits. A court considering a stay must also apply a
strong equitable presumption against the grant of a stay where a claim could have been brought at such time
as to allow consideration of the merits without requiring entry of a stay.‖

          Day v. McDonough, 547 US 198, 126 S Ct 1675, 164 L Ed 2d 376 (2006). Petitioner filed his
§ 2254 petition for habeas corpus relief after the one-year statute of limitations in § 2244(d)(1)(A) had
expired, but the state, by miscalculating the time, conceded in its answer that the petition was timely. The
district court noticed the error, sua sponte issued a show-cause order, and ultimately dismissed the petition as
time-barred. Held: Affirmed. Although a statute-of-limitations defense is not jurisdictional, and hence a
court is under no obligation to raise the time-bar sua sponte, a district court is permitted to consider the issue
of timeliness sua sponte and to raise that issue by a show-cause order. ―Of course, before acting on its own
initiative, a court must accord the parties fair notice and an opportunity to present position [and] must assure
itself that the petitioner is not significantly prejudiced by the delayed focus on the limitation issue and
determine whether the interests of justice would be better served by addressing the merits or by dismissing
the petition as time barred.‖
42

        Habeas corpus: state-court proceedings
        See also ―Mandamus,‖ below.

        Barrett v. Belleque, 209 Or App 295, 150 P3d 1064 (2006). Petitioner, who filed a state habeas
corpus petition in which he claimed that he was denied due process in the administrative review of his
housing classification, was not entitled to raise his claim in a petition for a writ of habeas corpus. Because
he disavowed any challenge to the conditions of confinement in IMU, and because he can raise his
procedural challenges to his housing classification by means of a §1983 action, he has another adequate
remedy and his claim is not cognizable in habeas corpus.

HINDERING PROSECUTION
     See also ―Tampering with Witness,‖ below.

         State v. Werdell, 340 Or 590, 136 P3d 17 (2006). After his son, a felon, was involved in a boating
accident that killed a companion and was arrested for violating the terms of his probation by drinking
alcohol, defendant (a lawyer) obtained and disposed of a gun and a liquor bottle that his son had left at his
campsite. The son later was charged with criminally negligent homicide. Defendant was separately charged
with hindering prosecution under ORS 162.325(1)(e), based on the theory that he had suppressed physical
evidence ―which might aid in the discovery or apprehension of such person.‖ The trial court denied his
motion for judgment of acquittal. Held: Reversed. Although defendant may have destroyed evidence of the
fact that a crime was committed, that evidence was not evidence that might ―aid in the discovery or
apprehension of‖ his son. The hindering statute criminalizes acts that interfere with the discovery of the
location of a felon, not the discovery of the commission of a crime.

HOMICIDE
     See also ―Death Penalty,‖ above; ―Sentencing: statutory sentences — murder,‖ below.

          State v. Crosby, 342 Or App 419, ___ P3d ___ (2007). The general definitions of the culpable
mental states anticipate that the mental state may apply differently to different crimes, depending on whether,
in the statute creating the substantive crime, the culpable mental state is ―used with respect to‖ conduct,
circumstances, or results. In response to juror questions, the trial court, over defendant‘s objection, gave an
erroneous ―clarifying‖ instruction regarding the application of the ―recklessly‖ culpable mental state to the
charge of first-degree manslaughter based on defendant‘s neglect of her dependent mother. Here, the jurors
expressed confusion as to whether they needed to find that defendant consciously disregarded the risk of the
death, or whether it was sufficient that she was aware of the ―circumstance‖ that caused the victim‘s death
(here, bedsores that ultimately became infected and caused the victim‘s death by sepsis). Defendant argued
that, for the crime of manslaughter, which requires that the defendant ―recklessly causes the death [of another
person],‖ it would be incorrect to allow the jurors to base a guilty verdict on a finding that defendant
consciously disregarded the risk of any circumstance other than the death. The trial court disagreed, and told
the jurors that they could base a verdict on defendant‘s awareness of either the risk of death or the risk that a
―particular circumstance exists.‖ Held: Because the crime of manslaughter is defined only by a ―result‖ –
i.e., the death of another person – it was error to instruct the jurors in a way that would permit them to base a
guilty verdict on a finding of defendant‘s conscious disregard of a ―circumstance.‖

          State v. Woodman, 341 Or 105, 138 P3d 1 (2006). Defendant and Yancey were charged with
aggravated felony murder and were tried together. Defendant requested an instruction defining ―intent‖ that
the trial court refused to give; the court instead gave the uniform instructions. The jury acquitted Yancey,
evidently on the based on his self-defense claim, but found defendant guilty of intentional murder.
Held: Defendant is correct that intentional murder requires the state to prove not only that the defendant
intentionally engaged in conduct that caused the death but also that he did ―intend that his conduct result in
the death of the victim.‖ But, ―reading the instructions as a whole, rather than examining the intent
instruction standing alone, the instructions accurately reflected the statutory language.‖
                                                                                                           43


        State v. Johnson, 340 Or 319, 131 P3d 173 (2006). The trial court correctly denied defendant‘s
motion for judgment of acquittal on charges of aggravated murder.

INMATES: CONDITIONS OF CONFINEMENT
     See also ―Habeas Corpus,‖ above; ―Parole,‖ below.

         Beard v. Banks, 548 US __, 126 S Ct 2572, 165 L Ed 2d 697 (2006). Plaintiff is an inmate with a
substantial history of misbehavior who has been placed in the most high-security unit within a prison. He
filed a § 1983 action challenging a prison policy that bars such inmates from virtually any privileges,
including access to any newspapers, magazines, or pictures. The trial court granted summary judgment for
defendant, but the Third Circuit reversed. Held: Reversed and remanded. Applying the Turner v. Safley
four-factor test that governs a prison‘s authority to restrict the constitutional rights of inmates, and according
―substantial deference to the professional judgment of prison administrators,‖ the Court upheld the restriction
based on the justification ―of providing increased incentives for better prison behavior,‖ concluding that that
was ―reasonably related to legitimate penological interests.‖

         Woodford v. Ngo, 548 US __, 126 S Ct 2378, 165 L Ed 2d 368 (2006). Plaintiff, a prison inmate,
filed a grievance with prison officials complaining about prison conditions, but it was rejected as untimely
filed under state law. Plaintiff then filed a § 1983 suit based on the same complaint. The district court
dismissed the action on the ground that plaintiff had not exhausted his administrative remedies as required by
the Prison Litigation Reform Act, 42 USC § 1997e(a) (PLRA). Held: Affirmed. [1] Under the PLRA,
―[e]xhaustion is no longer left to the discretion of the district court, but is mandatory. Prisoners must now
exhaust all ‗available‘ remedies, not just those that meet federal standards. Indeed, * * * a prisoner must
now exhaust administrative remedies even where the relief sought * * * cannot be granted by the
administrative process. Finally, exhaustion of available administrative remedies is required for any suit
challenging prison conditions, not just for suits under § 1983.‖ [2] ―Proper exhaustion demands compliance
with an agency‘s deadlines and other critical procedural rules because no adjudicative system can function
effectively without imposing some orderly structure on the course of its proceedings.‖ [3] The exhaustion
requirement in the PLRA requires proper exhaustion and hence bars a § 1983 action based on the same claim
if the inmate failed to pursue his claim in an available grievance process.

         Ward v. Hall, 206 Or App 225, 136 P3d 76, rev den 341 Or 245 (2006) (per curiam). The circuit
court correctly dismissed plaintiff‘s complaint for relief under 42 USC § 1983. Plaintiff‘s claim that prison
authorities are not providing him with a certain religious diet are based on an alleged violation of the
Western Interstate Corrections Compact, which does not confer any federally protected liberty interests.
Thus, he was not entitled to raise his claim in this § 1983 proceeding.

INSANITY

         Clark v. Arizona, 548 US __, 126 S Ct 2709, 165 L Ed 2d 842 (2006). Defendant, who suffers from
paranoid schizophrenia, shot and killed a police officer during a traffic stop and was charged with aggravated
murder. He waived jury and asserted an insanity defense, which state law required him to prove by clear and
convincing evidence that as a result of a mental defect he ―did not know the criminal act was wrong.‖ The
trial court admitted all of defendant‘s proffered evidence of insanity but rejected that defense and then found
him guilty, ruling that evidence of a mental disorder short of insanity cannot negate the mens rea element of
the crime. The state supreme court affirmed, holding that the state‘s narrow standard of insanity does not
violate the Due Process Clause. Held: Affirmed. [1] The common-law insanity formulation from
M’Naghten’s Case is a two-part test: (a) ―whether a mental defect leaves a defendant unable to understand
what he is doing,‖ and (b) ―whether a mental disease or defect leaves a defendant unable to understand that
his action is wrong.‖ The state standard eliminated the first part of the test. [2] ―History shows no deference
to M’Naghten that could elevate its formula to the level of fundamental principle, so as to limit the traditional
44

recognition of a State‘s capacity to define crimes and defenses.‖ [3] The first part of the M’Naghten standard
arguably is unnecessary, because ―if a defendant did not know what he was doing when he acted, he could
not have known that he was performing the wrongful act charged as a crime.‖ [4] ―The presumption of
sanity is equally universal in some variety or other, being (at least) a presumption that a defendant has the
capacity to form the mens rea necessary for a verdict of guilt and the consequent criminal responsibility.‖
―[E]vidence tending to show that a defendant suffers from mental disease and lacks capacity to form mens
rea is relevant to rebut evidence that he did in fact form the required mens rea at the time in question.‖ [5] A
state may place the burden of persuasion on a defendant claiming insanity, and it may require ―persuasion to
a clear-and-convincing degree before the presumption of sanity and normal responsibility is overcome.‖ [6]
Arizona‘s rule precluding evidence of a mental disorder short of insanity from negating mens rea ―serves to
preserve the State‘s chosen standard for recognizing insanity as a defense and to avoid confusion and
misunderstanding on the part of jurors. For these reasons, there is no violation of due process under
Chambers and progeny.‖

INSTRUCTIONS
     See also ―Accomplices‖ and ―Defenses,‖ above; ―Lesser-Included Offenses,‖ below.

         State v. Sandoval, ___ Or ___ (March 29, 2007). In his trial for shooting and killing his ex-wife‘s
domestic partner, defendant argued that he shot the victim in self-defense. In addition to the uniform
instructions on self-defense and the limitations on using deadly force, the prosecutor requested a special
instruction that stated that the danger justifying the use of deadly force must be ―absolute, imminent, and
unavoidable,‖ and that the need for the killing must be ―actual, present, urgent and absolutely or apparently
absolutely necessary.‖ It also stated that ―[t]here must be no reasonable opportunity to escape to avoid the
affray and there must be no other means of avoiding or declining the combat.‖ The special instruction was
based on language scattered through State v. Charles, 293 Or 273 (1982), in which the Oregon Supreme
Court upheld a trial court‘s ruling denying the defendant‘s request for an instruction that would have stated
that a defendant has no duty to retreat. The trial court gave the instruction over defendant‘s objection. The
Court of Appeals affirmed without opinion, and the Supreme Court allowed review. Held: Reversed. [1]
Although the state‘s reliance on Charles is ―understandable,‖ the Charles decision was not based on the self-
defense statutes, but instead purported to decide the case based on its pre-1971 caselaw. Thus, Charles ―has
nothing to contribute‖ to the question of what the legislature intended the Criminal Code to require regarding
the duty to retreat. [2] The Oregon self-defense statutes do not require that there be no means of escape from
a threat of force. Rather, ORS 161.219 and ORS 161.209 allow the use of deadly force to defend against
what reasonably appears to be an ―imminent‖ and unlawful use of deadly force, and states that only that the
person must reasonably believe that the degree of force is necessary. It does not intend to impose an
additional requirement that the person retreat before using deadly force in his or her defense.
         Note: As a general rule, attorneys should follow the advice of the Supreme Court in Sandoval that
―constructing instructions from an amalgam of cases * * * rarely produces truly accurate instructions.‖
Special jury instructions that are phrased in the language of the statutes governing the offense and the issues
raised at trial (and tailored accordingly) will be almost unassailable; however, the language in reported court
decisions often is not sufficiently general that it can be applied in all other cases involving similar issues.

         State v. Crosby, 342 Or App 419, ___ P3d ___ (2007). The general definitions of the culpable
mental states anticipate that the mental state may apply differently to different crimes, depending on whether,
in the statute creating the substantive crime, the culpable mental state is ―used with respect to‖ conduct,
circumstances, or results. In response to juror questions, the trial court, over defendant‘s objection, gave an
erroneous ―clarifying‖ instruction regarding the application of the ―recklessly‖ culpable mental state to the
charge of first-degree manslaughter based on defendant‘s neglect of her dependent mother. Here, the jurors
expressed confusion as to whether they needed to find that defendant consciously disregarded the risk of the
death, or whether it was sufficient that she was aware of the ―circumstance‖ that caused the victim‘s death
(here, bedsores that ultimately became infected and caused the victim‘s death by sepsis). Defendant argued
that, for the crime of manslaughter, which requires that the defendant ―recklessly causes the death [of another
                                                                                                           45

person],‖ it would be incorrect to allow the jurors to base a guilty verdict on a finding that defendant
consciously disregarded the risk of any circumstance other than the death. The trial court disagreed, and told
the jurors that they could base a verdict on defendant‘s awareness of either the risk of death or the risk that a
―particular circumstance exists.‖ Held: Because the crime of manslaughter is defined only by a ―result‖ –
i.e., the death of another person – it was error to instruct the jurors in a way that would permit them to base a
guilty verdict on a finding of defendant‘s conscious disregard of a ―circumstance.‖

          State v. Woodman, 341 Or 105, 138 P3d 1 (2006). Defendant and Yancey were charged with
aggravated felony murder and were tried together. Defendant requested an instruction defining ―intent‖ that
the trial court refused to give; the court instead gave the uniform instructions. The jury acquitted Yancey,
evidently on the based on his self-defense claim, but found defendant guilty of intentional murder. Held:
[1] ―In determining whether it was error to give a particular instruction, we read the instructions as a whole
to determine whether they state the law accurately.‖ [2] Defendant is correct that intentional murder requires
the state to prove not only that the defendant intentionally engaged in conduct that caused the death but also
that he did ―intend that his conduct result in the death of the victim.‖ But, ―reading the instructions as a
whole, rather than examining the intent instruction standing alone, the instructions accurately reflected the
statutory language.‖

         State v. Bowen, 340 Or 487, 135 P3d 272 (2006). Defendant was charged with two counts of
aggravated felony murder and one count of intentional murder. Defendant requested an instruction on first-
degree manslaughter as a lesser-included offense of aggravated felony murder, but the court denied his
request, reasoning that the jurors would first have to consider the charges of aggravated felony murder, then
the murder charge, and only if they found defendant not guilty on those counts would they consider the
lesser-included offense of first-degree manslaughter. So, the court gave the manslaughter instruction but
only as a lesser-included offense of intentional murder. Held: Affirmed. [1] The court erred in refusing to
give the manslaughter instruction as a lesser-included of aggravated felony murder. Because intentional
murder is a lesser-included offense of aggravated felony murder, and manslaughter is a lesser-included
offense of intentional murder, defendant was entitled to the manslaughter instruction as a lesser-included of
aggravated felony murder. But the error was harmless, because the court instructed the jury to consider the
instructions as a whole, and when taken as a whole, the instructions adequately informed the jury of the
possible verdicts it could return on all the counts, depending on how it resolved the facts. [2] In the penalty
phase, the state introduced evidence that defendant had pleaded guilty to being an accessory after the fact to a
1989 murder and that he may have actually committed that murder. Defendant requested that the court
instruct the jury that such evidence was relevant only to the question of his future dangerousness. Held: The
trial court correctly refused to give defendant‘s instruction because it incorrectly stated the law, because the
evidence was also relevant to the ―fourth question‖ (whether defendant should receive a sentence of death).

         State v. Black, 208 Or App 719, 145 P3d 367 (2006). [1] ―In reviewing the trial court‘s refusal to
give a requested instruction, we view the record in the light most favorable to establishment of the facts
necessary to require that instruction.‖ [2] Because a rational juror could have concluded that there was
probable cause to believe that at least one witness could have been charged (and thus was an ―accomplice
witness), the trial court erroneously refused to give UCrJI 1053-1056, which provide the definition for
―accomplice witness‖ and which state both that corroboration is required and that the jury should view
accomplice testimony with distrust. [3] In this case, refusal to give the instruction was harmless because
there was corroboration, and because the witness testimony was, in primary part, cumulative to the
inculpatory testimony of another witness.

          State v. Taylor, 207 Or App 649, 142 P3d 1093 (2006), rev den 342 Or 299 (2007). In defendant‘s
trial for second-degree assault, based on his intentionally or knowingly causing serious physical injury, the
trial court correctly denied defendant‘s request for a lesser-included offense instruction on third-degree
assault, which requires only a reckless act. Because defendant testified at trial that he intended to strike the
victim, there was no evidence to support the lesser instruction.
46


        State v. Torres, 207 Or App 355, 142 P3d 99 (2006). [1] A person who is named in the indictment
as a co-defendant is, as a matter of law, an ―accomplice.‖ [2] Although there need not be independent
corroborating evidence for every material fact necessary to be established to sustain a conviction for the
offense, corroborating evidence must ―fairly and legitimately tend[] to connect the defendant with the
commission of the crime.‖ [3] Testimony connecting defendant to the co-defendant, although not to the
criminal activity, was insufficient. [4] Testimony connecting defendant to the transport of motorcycles that a
co-defendant removed from a barn was insufficient corroboration of the burglary charge, which required that
defendant entered the barn with the intent to commit a crime therein, or that he aided and abetted an entry by
his co-defendant.

         State v. Garcia, 206 Or App 745, 138 P3d 927 (2006). Defendant was convicted of two counts of
coercion and other charges arising from an incident in which he threatened his girlfriend that he would burn
the house down if she called for help and to kill her if she testified against him. She did testify against him at
trial. The first coercion count was based on his threats to induce her not to call 911; the second was based on
his threats to induce her not to testify against him. On the second count, defendant asked for instruction on
the lesser-included offense of attempted coercion, arguing that the victim had not in fact ―abstained from‖
testifying against him at trial. The trial court denied the request. Held: Reversed and remanded for entry of
a reduced conviction. Because the jury could have concluded that defendant only attempted to induce the
victim not to testify but had failed to achieve that result, the court erred in failing to instruct the jury on
attempted coercion.

         State v. Ketchum, 206 Or App 635, 138 P3d 860, rev den 341 Or 450 (2006). Defendant was
convicted of first-degree sexual abuse and first-degree unlawful sexual penetration based on crimes
committed against his 4-year-old stepdaughter. He claimed that he had touched and penetrated the child‘s
vagina because her mother had asked him to apply ointment to a rash (which she denied). Defendant
requested an instruction based on the defense in ORS 163.412(1) that the penetration was ―part of a
medically recognized treatment or diagnostic procedure.‖ The trial court refused the instruction on the
ground that the defense applies only to medical personnel. The jury convicted on both the sexual-abuse and
penetration charges. Held: Reversed and remanded for a new trial. [1] The statutory defense for medical
treatment or diagnostic procedures applies to anyone giving medical treatment. [2] Because there was some
evidence (i.e., defendant‘s testimony that he was treating a rash) to support the instruction, the trial court
erred in refusing to give it.

INTERFERING WITH A PEACE OFFICER

         State v. Illig-Renn, 341 Or 228, 142 P3d 62 (2006). ORS 162.247(1)(b), which defines the offense
of interfering with a peace officer by refusing to obey a ―lawful order,‖ is not constitutionally overbroad
under Art. I, § 8, or the 1st Amend. Nor is it facially vague: it does not permit arbitrary and retroactive
punishment under the equal privileges clause in Art. I, § 20, or the ex post facto clause of Art. I, § 21, and
provides sufficient warning under the 14th Amend. Due Process Clause.

        State v. White, 211 Or App 210, ___ P3d ___ (February 28, 2007). [1] Although the evidence
supported competing inferences, the trial court correctly denied defendant‘s motion for a judgment of
acquittal as to whether defendant had violated a ―lawful‖ order by a peace officer not to enter his own home
during an arson investigation. A reasonable factfinder could have found that the scope of defendant‘s
consent to the officers‘ investigation included an agreement not to reenter the property unless he revoked his
consent by making an express statement that he wanted them out of his house. [2] Scope of consent is
determined by an ―objective reasonableness‖ standard: what a reasonable person would have understood by
the exchange. Here, defendant‘s written consent expressly gave police the authority to enter the home for the
purpose of investigating the fire, and a reasonable person would understand that it was important to avoid
contamination of the scene; moreover, the house was marked with crime-scene tape stating ―Fire Line Do
                                                                                                           47

Not Cross‖; thus, a reasonable person could infer that defendant‘s consent included his own exclusion from
his property. [3] The prosecutor did not violate ORS 135.845(2), which required him to ―promptly‖ notify
defendant of the names of witnesses he intended to call. Although the prosecutor determined a week before
the disclosure that he wanted to determine the identity of a particular fact witness, it took several days to find
the person, and the prosecutor disclosed the witness‘s name to the defense on the day that he learned the
identity of the witness.

JOINDER

         State v. Luers, 211 Or App 34, ___ P3d ___ (2007). Defendant was convicted of various charges
based on his conduct in committing an arson at one location and an attempted arson at another. He also was
convicted of one count of first-degree criminal mischief and one count of attempted first-degree criminal
mischief at each location, and one count each of unlawful manufacture and possession of a destructive device
at each location. The trial court denied his motion to sever the charges based on the two incidents, and
defendant was convicted at trial. Held: Affirmed. The charges relating to the separate incidents were
properly joined for trial under ORS 132.560(2), and, because much of the evidence would have been
admissible in both cases even in separate trials, defendant did not show that he would suffer ―substantial
prejudice‖ by the joint trial and thus was not entitled to severance under ORS 132.560(3).

JURY TRIAL

        Jury trial: right to jury, waiver
        See also ―Sentencing: constitutional issues — right to jury,‖ below.

        Jury trial: juror selection, voir dire

         State v. Longo, 341 Or 580, 148 P3d 892 (2006). The court correctly denied defendant‘s Batson
challenge because defendant failed to produce evidence sufficient to permit a trial judge to draw an inference
that discrimination had occurred; there was no evidence that the juror in question was in fact a minority, and
no pattern of questioning by the prosecutor that suggested racial discrimination.

         Jury Service Resource Center v. DeMuniz et al., 340 Or 423, 134 P3d 948 (2006). Plaintiffs
brought this declaratory-judgment suit contending that they are entitled to information about all potential
jurors within certain counties and hence are were entitled to review the source lists, master lists and term lists
from which jurors are randomly selected. Held: Action dismissed. [1] The court adopted the decision of the
Court of Appeals, 199 Or App 106, 110 P3d 594 (2005), on some issues: (a) plaintiffs have standing to bring
the challenge, because the open-courts provision in Article I, section 10, and the ―right to access to
information about trials‖ under the First Amendment ―belong to the public generally and not to any
individual more than another‖; (b) the open-courts provision of Article I, section 10, of the Oregon
Constitution guarantees the openness only of ―adjudications‖; the compilation of jury lists is not an
adjudication and, therefore, need not be made open to the public under Article I, section 10; and
(c) plaintiff‘s various claims under the Public Records Law and Article I, sections 8 and 20, have no merit.
[2] Plaintiffs are not entitled to the records under the First Amendment, which encompasses a public right to
observe the workings of at least some parts of the administration of justice, particularly criminal trials and
requires that trials must be conducted openly with full access to the public. The process of juror selection is
itself a matter of importance, not simply to the adversaries but to the criminal-justice system. Historically,
the process of the selection of jurors has presumptively been a public process with exceptions only for good
cause shown. The process of selecting potential jurors, however, has never been open in the same way.
Although open criminal proceedings give assurances of fairness to both the public and the accused, there are
some limited circumstances in which the right of the accused to a fair trial might be undermined by publicity.
As a result, there is no right of access under the First Amendment to jury pool records, such a source lists,
master lists, and jury term lists.
48


        State v. Johnson, 340 Or 319, 131 P3d 173 (2006). The trial court properly quashed defendant‘s
subpoena duces tecum to obtain jury records in the absence of a showing ―that the method of selecting the
jury pool is or was constitutionally suspect.‖

         State v. Carter, 205 Or App 460, 134 P3d 1078 (2006). In a sexual-assault prosecution, the
defendant challenged for cause a former law-enforcement officer who admitted during voir dire that he
didn‘t think he could be fair. When asked by prosecutor and then the trial court whether he could follow the
law, the juror responded: ―Yeah, I probably could do that,‖ and ―I guess I could try.‖ The court denied the
challenge, finding that ―he said he can set them [his personal beliefs] aside, and I believe him.‖ Held:
Reversed and remanded. [1] A prospective juror may be excused for actual bias. ORCP 57 D(1)(g). That a
prospective juror has formed opinions about matters relevant to the case is not itself cause to exclude that
juror — the test is whether the prospective juror‘s ideas or opinions would impair substantially his
performance of the duties of a juror to decide the case fairly and impartially on the evidence presented in
court. [2] Whether a prospective juror is actually biased is a factual question to be determined by the trial
court as an exercise of its discretion. Although ―the standard of review is deferential,‖ the Court of Appeals
is not bound by the trial court‘s finding. [3] The trial court abused its discretion in not excusing the juror
when the juror failed to state more than that he ―could try‖ to set aside his personal beliefs.

JUVENILES

        State ex rel. Juv. Dept. v. McLaughlin, 205 Or App 325, 134 P3d 964 (2006) (per curiam).
Although ORS 419C.203(1) gives a juvenile court authority to require a youth in a delinquency proceeding
to repay cost of court-appointed counsel, the court first must consider the youth‘s ability to pay.

KIDNAPPING AND RELATED OFFENSES

         State v. Murray, 340 Or 599, 136 P3d 10 (2006). Defendant committed a carjacking in which he (at
7 feet and 300 lbs.) forced his way into the car of the 83-year-old victim and shoved her from the driver‘s
seat of onto the passenger seat. She was able to get out of the car before he drove off. Defendant was
charged with second-degree kidnapping, robbery, UUV, and assault. The trial court denied defendant‘s
motion for a judgment of acquittal, and he was convicted on all counts. Held: Reversed. A defendant
cannot be convicted of kidnapping by ―tak[ing] the person from one place to another‖ if the movement of the
victim was ―not substantial, i.e., was not from one place to another,‖ was only was incidental to the
commission of another crime (here, robbery). In such a circumstance, in order to take a person to another
place, the person must be moved ―a substantial distance.‖

         State v. Hylton, 210 Or App 104, 150 P3d 47 (2006). Defendant was charged with two counts of
first-degree kidnapping of a single victim in a single incident. The first charged that, on a particular date,
defendant kidnapped the victim ―with the purpose of terrorizing‖ the victim. The second charged that, on the
same date and as part of the same transaction, defendant kidnapped the victim ―with the purpose of causing
physical injury‖ to the victim. Defendant was convicted on both counts, and the trial court entered judgment
on both convictions. Held: The trial court erroneously failed to merge the two convictions.

LESSER-INCLUDED OFFENSES
     See also ―Instructions,‖ above; ―Sentencing: merger,‖ below.

         State v. Bowen, 340 Or 487, 135 P3d 272 (2006). Defendant was charged with two counts of
aggravated felony murder and one count of intentional murder. Defendant requested an instruction on first-
degree manslaughter as a lesser-included offense of aggravated felony murder, but the court denied his
request, reasoning that the jurors would first have to consider the charges of aggravated felony murder, then
the murder charge, and only if they found defendant not guilty on those counts would they consider the
                                                                                                           49

lesser-included offense of first-degree manslaughter. So, the court gave the manslaughter instruction but
only as a lesser-included offense of intentional murder. Held: Affirmed. [1] The court erred in refusing to
give the manslaughter instruction as a lesser-included of aggravated felony murder. Because intentional
murder is a lesser-included offense of aggravated felony murder, and manslaughter is a lesser-included
offense of intentional murder, defendant was entitled to the manslaughter instruction as a lesser-included of
aggravated felony murder. But the error was harmless, because the court instructed the jury to consider the
instructions as a whole, and when taken as a whole, the instructions adequately informed the jury of the
possible verdicts it could return on all the counts, depending on how it resolved the facts. [2] In addition,
―the trial court erred in not merging defendant‘s conviction for intentional murder with his convictions for
aggravated murder.‖

          State v. Taylor, 207 Or App 649, 142 P3d 1093 (2006), rev den 342 Or 299 (2007). In defendant‘s
trial for second-degree assault, based on his intentionally or knowingly causing serious physical injury, the
trial court correctly denied defendant‘s request for a lesser-included offense instruction on third-degree
assault, which requires only a reckless act. Because defendant testified at trial that he intended to strike the
victim, there was no evidence to support the lesser instruction.

         State v. Garcia, 206 Or App 745, 138 P3d 927 (2006). Defendant was convicted of two counts of
coercion and other charges arising from an incident in which he threatened his girlfriend that he would burn
her house down if she called for help and to kill her if she testified against him. She did testify against him at
trial. The first coercion count was based on his threats to induce her not to call 911; the second was based on
his threats to induce her not to testify against him. On the second count, defendant asked for instruction on
the lesser-included offense of attempted coercion, arguing that the victim had not in fact ―abstained from‖
testifying against him at trial. The trial court denied the request. Held: Reversed and remanded for entry of
a reduced conviction. [1] Because the jury could have concluded that defendant only attempted to induce the
victim not to testify but had failed to achieve that result, the court erred in failing to instruct the jury on
attempted coercion. [2] Because defendant does not dispute that the evidence is sufficient to support a
conviction on the lesser-included offense of attempted coercion, the remedy is to reverse and remand for
entry of conviction on the lesser-included offense.

MANDAMUS

         Roy v. Palmateer, 205 Or App 1, 132 P3d 56 (2006). [1] Although ORS 163.105(3) (1983)
authorizes the parole board to determine whether an inmate sentenced to life imprisonment on a conviction
for aggravated murder is ―likely to be rehabilitated within a reasonable period of time,‖ such a determination
does not entitle the inmate to immediate release on parole. On that basis, the trial court correctly dismissed
plaintiff‘s petition for mandamus. [2] The trial court erred in entering a money judgment against plaintiff for
the filing fee.

MENTAL STATES
    See also ―Insanity,‖ above.

         State v. Crosby, 342 Or App 419, ___ P3d ___ (2007). The general definitions of the culpable
mental states anticipate that the mental state may apply differently to different crimes, depending on whether,
in the statute creating the substantive crime, the culpable mental state is ―used with respect to‖ conduct,
circumstances, or results. In response to juror questions, the trial court, over defendant‘s objection, gave an
erroneous ―clarifying‖ instruction regarding the application of the ―recklessly‖ culpable mental state to the
charge of first-degree manslaughter based on defendant‘s neglect of her dependent mother. Here, the jurors
expressed confusion as to whether they needed to find that defendant consciously disregarded the risk of the
death, or whether it was sufficient that she was aware of the ―circumstance‖ that caused the victim‘s death
(here, bedsores that ultimately became infected and caused the victim‘s death by sepsis). Defendant argued
that, for the crime of manslaughter, which requires that the defendant ―recklessly causes the death [of another
50

person],‖ it would be incorrect to allow the jurors to base a guilty verdict on a finding that defendant
consciously disregarded the risk of any circumstance other than the death. The trial court disagreed, and told
the jurors that they could base a verdict on defendant‘s awareness of either the risk of death or the risk that a
―particular circumstance exists.‖ Held: Because the crime of manslaughter is defined only by a ―result‖ –
i.e., the death of another person – it was error to instruct the jurors in a way that would permit them to base a
guilty verdict on a finding of defendant‘s conscious disregard of a ―circumstance.‖

         State v. Lane, 341 Or 433, 144 P3d 927 (2006). Defendant committed second-degree escape when
he escaped from the constructive custody of the jail, a correctional facility, by running from a courtroom
after the court revoked his release agreement and told him that he was ―reduced to custody.‖ The allegation
that he ―knowingly‖ escaped from a correctional facility required proof that he knew he was escaping, but
not that he knew that the location was a correctional facility.

          State v. McCathern, 211 Or App 171, ___ P3d ___ (2007). Under ORS 161.105, a culpable mental
state is not required for an offense defined outside the criminal code if the statute ―clearly indicates a
legislative intent to dispense with any culpable mental state requirement for the offense or for any material
element thereof.‖ The crime of furnishing alcohol to a minor, in violation of ORS 471.410(2), does not
require proof of a culpable mental state as to the age of the minor, because the context of the statute ―clearly
indicates‖ the legislature‘s intent not to require a culpable mental state. Specifically, the offense dates back
to 1887, and the predecessors to the current statute repeatedly have been construed not to require proof of
knowledge of age.

MISTRIAL
     See also ―New-Trial Motions,‖ below.

        State v. Bowen, 340 Or 487, 135 P3d 272 (2006). The prosecutor misread defendant‘s rap sheet (he
erroneously believed that defendant had a felony theft conviction within the past 15 years) and asked him, on
cross-examination, whether he had been convicted of any felonies other than those to which he had admitted
on direct. Defendant answered that he had a prior manslaughter conviction, which was not admissible as
impeachment because it was over 15 years old. The trial court denied defendant‘s motion for a mistrial but
gave a cautionary instruction. Held: Affirmed. The prosecutor‘s behavior, ―though careless,‖ was not a
deliberate attempt to admit improper evidence, the court gave a strong immediate curative instruction, and
defendant‘s admission of the manslaughter conviction violated only an evidentiary, not a constitutional, rule.

          State v. Evans, 211 Or App 162, ___ P3d ___ (2007). The trial court acted within its discretion
when it denied defendant‘s motion for a mistrial after a potential juror, in voir dire, stated that she knew the
defendant and that she had an outstanding stalking protective order against him. The court excused that
potential juror, but defendant argued that the remaining jurors had been poisoned by the information. The
trial court offered to give a curative instruction, but defendant declined. Held: In determining whether a trial
court abused its discretion in denying a mistrial, the appellate court looks to whether a curative instruction
was sufficient to remedy any prejudice, whether the potentially prejudicial incident was sufficiently isolated
that it did not compromise a fair trial, and whether the prejudice was the product of deliberate prosecutorial
misconduct. Here, the trial court‘s decision was within the range of its discretion – particularly because the
defendant had the opportunity to examine the remaining jurors to determine whether they could remain
impartial.

        State v. Vega, 206 Or App 668, 139 P3d 260, rev den 341 Or 367 (2006). After the close of
evidence and before closing arguments in defendant‘s trial for the severe abuse of her elderly husband, a
juror became unavailable due to critical injuries suffered by her husband in an accident. Defendant refused
to proceed with fewer than 12 jurors, and over defendant‘s motions for a mistrial, the trial judge twice
postponed the trial (first for a period of six days and later for another 21 days) when it became clear that the
juror was unable to return to court. Both times, the court instructed jurors not to discuss the case or to
                                                                                                           51

conduct any independent investigation. After the trial resumed, the trial court asked the jurors whether they
had been exposed to any such information, and they responded that they had not. Counsel for both parties
declined the court‘s invitation to submit to the jurors ―any specific questions‖ regarding that issue. Held:
Affirmed. [1] Defendant failed to prove that the postponements caused any actual prejudice. Although the
trial court, in instructing the jury, referred to the constitutional requirement of a 12-person jury, it did not
suggest that defendant was refusing to waive that requirement or that she was responsible for the delay. Nor
did the trial court‘s reference to the jurors‘ ―collective memory‖ invite them to base their verdicts solely on
the recollections of other jurors. [2] The delay was not so lengthy that the duration alone required a
presumption of prejudice. [3] Whether a delay, by itself, deprives a defendant of his due-process right to a
fair trial depends on various factors, including the need for the continuance, potential prejudice to the
defendant, and the ―inevitable and complex realities faced by trial courts in scheduling jury trials.‖ Here,
those factors did not require a mistrial.

NEW-TRIAL MOTIONS

         State v. Woodman, 341 Or 105, 138 P3d 1 (2006). Defendant and Yancey were charged with
aggravated felony murder and were tried together. The jury acquitted Yancey, evidently on the based on his
self-defense claim, but found defendant guilty of intentional murder. After judgment, two jurors advised
defense counsel about confusion regarding the law of aiding-and-abetting liability during deliberations, and
counsel moved for a new trial, which the trial court granted based on ORCP 64 B(1) and (5). Held:
Reversed and remanded. [1] The instructions given were correct, the jury returned only general verdicts,
each verdict was supported by evidence in the record, and there is no inherent inconsistency between the
verdicts. Consequently, the new-trial order necessarily depends solely on the jurors‘ affidavits regarding
their deliberations. [2] The trial court erred in relying on ORCP 64 B(1) (―irregularity in the proceedings‖),
because ―juror affidavits are inadmissible to establish the jury‘s mental processes in reaching a verdict,
including any confusion that the jurors may have experienced during their deliberations.‖ [3] The trial court
erred in relying on ORCP 64 B(5) (―verdict … against the law‖), because ―juror affidavits are admissible [to
impeach the verdict] only if they disclose misconduct such as fraud, bribery, forcible coercion, or other
obstruction of justice,‖ and none of that was established in this case.

        State v. Farmer, 210 Or App 625, ___ P3d ___ (2007). The trial court correctly denied defendant‘s
motion for a new trial under ORCP 64 B(4) based on his claim that newly-discovered evidence required a
new trial. To justify a new trial, newly-discovered evidence must meet the following requirements: (1) the
evidence would probably change the result if a new trial is granted; (2) the evidence could not have been
discovered with reasonable diligence before or during the trial; (3) must be such that it could not, with
reasonable diligence, have been produced during trial; (4) it must be material to an issue; (5) it must not be
merely cumulative; and (6) it must not be merely impeaching or contradictory of other evidence. Although,
in support of his motion, defendant offered an affidavit from a person who stated definitively that defendant
was not the perpetrator, the same person previously had made statements to an investigating officer that she
had seen only a glimpse of one face and acknowledged that she would not be able to recognize the person
whom she had seen. That is, although, by itself, the affidavit may well have justified a new trial, it was
within the judge‘s discretion to conclude that, in light of the rest of the evidence, a reasonable jury could not
believe the statements contained therein.

         State v. Howard, 205 Or App 408, 134 P3d 1042, rev den 341 Or 198 (2006). [1] In construing
ORS 136.535, the statute governing a new trial in a criminal action, the proper context for PGE purposes
includes the case law construing the nearly identical rule for civil cases. [2] ―ORS 136.535 does not require
motions for new trials in criminal cases to be filed after the filing of the judgment.‖ (Essentially overruling
State v. Futch.) [3] The trial court correctly denied defendant‘s motion for new trial because he failed to
carry his ―burden of showing that the new evidence could not have been discovered [prior to trial] through
the exercise of due diligence.‖
52

         State v. Acree, 205 Or App 328, 134 P3d 1069 (2006). [1] Under ORCP 64 B(4), to obtain a new
trial based on newly discovered evidence, the movant must submit affidavits ―that show a state of undisputed
facts [that] would probably lead an ordinarily reasonable person to a different conclusion from that arrived at
by the jury.‖ [2] Defendant met that burden by demonstrating that the video of the search of her residence,
which was unavailable to her prior to trial, showed that the drug paraphernalia was not in open view as
claimed by the officers.

PAROLE

        Stogsdill v. Board of Parole, 342 Or 332 (2007). The Due Process Clause does not require the
parole board to apply a clear-and-convincing standard of proof in determining a fact that supports the board‘s
postponement of a parole-release date. A finding by a preponderance of the evidence is sufficient.

         Kellas v. Dept. of Corrections, 341 Or 471, 145 P3d 139 (2006). The Oregon Constitution does not
limit the legislature‘s authority to confer standing on ―any person‖ to seek judicial review of ―any‖
administrative rule, as in ORS 183.400(1).

         Davis v. Board of Parole, 341 Or 442, 144 P3d 931 (2006). Although the board of parole is
generally required by ORS 144.120 to set an initial release date for most prisoners admitted to DOC custody,
different rules apply to persons sentenced as dangerous offenders. ORS 144.228 requires the board to set a
parole-consideration hearing to determine whether to set an initial release date; the board must set a release
date only if it finds that the condition that ―made the prisoner dangerous is absent or in remission.‖ Thus, as
a practical matter, the burden of persuasion is on the petitioner.
         Note: Because the burden is on the petitioner, the court did not reach his claim that the Due Process
Clause requires the board must set a parole-release date unless it finds by clear-and-convincing evidence that
the condition that made the petitioner dangerous is in remission or absent standard; neither party suggests
that the clear-and-convincing standard should be imposed on petitioner.

        Atkinson v. Board of Parole, 341 Or 382, 143 P3d 538 (2006). ORS 144.335 provides that, to
support a motion for leave to proceed and obtain judicial review of an order of the parole board, a petitioner
must present a ―substantial question of law.‖ Petitioner‘s one-sentence allegation of legal violations, made
without factual support or legal analysis, did not present a substantial question of law.

         State ex rel. Engweiler v. Cook, 340 Or 373, 133 P3d 904 (2006). In 1990, petitioner was convicted
of aggravated murder for a crime he committed when he was 15 years old, and the court imposed an
indeterminate life sentence. The parole board established a 480-month ―prison term‖ and set a ―murder
review date‖ in 2030. Petitioner claimed that he is entitled to accumulate earned-time credits under
ORS 421.121 against the 480-month term, DOC denied that request, and the Court of Appeals affirmed.
Held: Affirmed. [1] A ―term of incarceration‖ as used in ORS 421.121(1) means ―the amount of time that
an inmate must spend in prison before he is eligible to be paroled,‖ not the term of incarceration imposed as
part of the sentence. [2] Given that petitioner is serving an indeterminate life sentence, the parole board is
responsible for determining the actual duration of his imprisonment. Because the 480-month term merely
determines when he might be considered for parole, he does not yet have a ―term of incarceration‖ and hence
is not entitled to application of earned-time credits against that term.

        Engweiler v. Board of Parole, 340 Or 361, 133 P3d 910 (2006). In 1990, petitioner was convicted
of aggravated murder for a crime he committed when he was 15 years old, and the court imposed an
indeterminate life sentence. The parole board established a 480-month ―prison term‖ and set a ―murder
review date‖ in 2030. Petitioner petitioned for judicial review under ORS 144.335 (1999), and the Court of
Appeals dismissed. Held: Affirmed. [1] To the extent that petitioner may have a right to have the board
conduct a hearing under ORS 144.120(1)(a) (1989) to set an initial parole-release date, this judicial-review
proceeding may not be used to enforce that right — he will need to prosecute a mandamus or habeas corpus
                                                                                                           53

proceeding for that purpose. [2] The board‘s order is not subject to judicial review under ORS 144.335(3)
(1990), because it is an order ―relating to a parole consideration hearing date.‖

         Demeyer v. Board of Parole, 206 Or App 740, 139 P3d 969 (2006). Petitioner challenged the
board‘s order deferring his release on parole, claiming that it was based on a psychological evaluation that
was filed more than 60 days after the examination of him, in violation of ORS 144.223(2), which provides
that the report ―shall‖ be filed in that time period. Held: Affirmed. [1] Although the legislature established
the 60-day filing requirement, it did not provide for any remedy for a late filing, and certainly does not
provide that the report cannot be considered. Petitioner identified no prejudice from the late filing in this
case. [2] In the event that a late report prejudices a petitioner, he or she can challenge the reliability of the
report, and the board could order a reevaluation in the case of a stale report.

         Larsen v. Board of Parole, 206 Or App 353, 138 P3d 16 (2006). [1] Under ORS 163.105, the parole
board is required to conduct its aggravated-murder review hearings as contested-case hearings under the
Administrative Procedures Act. [2] Petitioner‘s statutory right to counsel under that provision was honored:
he was represented by counsel, who presented evidence and argument on his behalf. [3] Although he
complains that he was denied the opportunity to confer directly with counsel during the hearing, he failed to
establish that he was prejudiced. [4] Even assuming petitioner has a constitutional right to counsel under
Article I, section 10, and the Fourteenth Amendment, those rights were not violated. The record shows that
counsel participated in the hearing and that both petitioner and counsel presented evidence to the board.
         See also Baize v. Board of Parole, 206 Or App 548, 138 P3d 58 (2006) (same as [1], remanding for
new hearing).

         Alexander v. Board of Parole, 205 Or App 443, 134 P3d 449, rev den 341 Or 449 (2006). Petitioner
was sentenced as a dangerous offender in 1988, and the board in 2002 deferred his parole-consideration date
for another 24 months based on a psychologist‘s evaluation that he remains dangerous. Held: Affirmed.
[1] Petitioner‘s challenge to the 2002 order is not moot in light of the board‘s order in 2004 deferring him for
another 24 months. [2] Because petitioner failed to raise in his administrative review request a claim that he
now asserts on judicial review, he failed to exhaust his administrative remedies and the Court of Appeals
declined to review that claim, ORS 144.335. [3] The board‘s finding that petitioner remained dangerous is
supported by substantial evidence. [4] The board‘s application of the current versions of ORS 144.226 and
144.228, which now permit evaluation by a psychologist (instead of only a psychiatrist, as the original
versions required), does not violate petitioner‘s due-process rights, because he has not identified ―any
meaningful risk of error regarding that evaluation that would result from its being performed by a
psychologist rather than a psychiatrist.‖

         McCline v. Board of Parole, 205 Or App 144, 133 P3d 349, rev den 342 Or 46 (2006). Petitioner
was convicted of murder in 1978, was sentenced to life imprisonment, and assigned a parole-release date in
2003. Applying ORS 144.125(3) (1977), the board postponed his release date for 24 months on a finding of
a ―severe emotional disturbance that constitutes a danger‖ to the public. Petitioner contended that that ruling
violates a federal-court judgment in Daniels v. Cogswell (1979). Held: Affirmed. [1] ―If a judgment is
ambiguous, we may resort to the trial court‘s opinion to clarify it.‖ [2] Because of the additional ―that
constitutes a danger‖ finding, the board‘s decision does not violate Daniels. Even though the statute then did
not expressly require such a finding, the board had authority to add that requirement, without prior
rulemaking, in order to limit its discretion under the statute in a manner that complied with Daniels.

         Roy v. Palmateer, 205 Or App 1, 132 P3d 56 (2006). [1] Although ORS 163.105(3) (1983)
authorizes the parole board to determine whether an inmate sentenced to life imprisonment on a conviction
for aggravated murder is ―likely to be rehabilitated within a reasonable period of time,‖ such a determination
does not entitle the inmate to immediate release on parole. Denial of release does not violate Article I,
sections 13, 15, 16, or the 8th or 14th Amendments. [2] On that basis, the trial court correctly dismissed
plaintiff‘s petition for mandamus. [3] The trial court erred in entering a money judgment against plaintiff for
54

the filing fee.

POST-CONVICTION PROCEEDINGS
     See also ―Habeas Corpus,‖ above.

         Whorton v. Bockting, 549 US ___ (05-595) (February 28, 2007). The rule in Crawford v.
Washington, 541 US 36 (2004), is a new rule because it departed from prior precedent; however, it was not a
―watershed rule‖ of criminal procedure, and therefore does not apply retroactively to cases already final on
direct review. To qualify as a watershed rule, the rule must (1) be necessary to prevent an ―impermissibly
large risk‖ of an inaccurate conviction, and (2) alter the bedrock procedural elements essential to the
proceeding‘s fairness. It is unclear whether the Crawford rule increased or decreased the number of
unreliable statements that can be admitted in criminal trials. Moreover, it is not sufficient that the Crawford
rule is based on the bedrock right to confront witnesses; rather, the new rule itself must constitute a
previously unrecognized bedrock procedural element that is essential to the fairness of a proceeding.

        Sanchez-Llamas v. Oregon, 548 US __, 126 S Ct 2669, 165 L Ed 2d 557 (2006). In the companion
case of Bustillo v. Johnson, petitioner, a Mexican national, asserted a claim in his state post-conviction
proceeding based on his complaint that the arresting officers did not advise him of his rights under Article
36(1)(b) of the Vienna Convention on Consular Relations (VCCR). The state court held that claim to be
procedurally barred. Held: Affirmed. ―[C]laims under Article 36 of the [VCCR] may be subjected to the
same procedural-default rules that apply generally to federal-law claims.‖ The ruling by the International
Court of Justice in LaGrand does compel a different result.

        Ware v. Hall, 342 Or 444, ___ P3d ___ (2007). The trial court erred when it summarily dismissed
petitioner‘s successive petition for post-conviction relief without holding a hearing. [1] ORS 138.550(3)
provides that a court may allow a successive petition if the court, ―on hearing‖ a subsequent petition, finds
grounds for relief that could not previously have been raised. That provision requires the court to give the
petitioner an opportunity to be ―heard‖ before dismissing a successive petition on procedural grounds.
[2] ORS 138.525 permits a post-conviction court to dismiss a ―meritless‖ petition on its own motion;
however, it expressly provides that such a dismissal ―is without prejudice if a meritless petition is dismissed
without a hearing and the petitioner was not represented by counsel.‖ Because the court did not hold a
hearing, it erroneously dismissed the petition with prejudice. [3] Because, under those statutes, the post-
conviction court was permitted to choose between two options – holding a hearing or dismissing without
prejudice – the proper remedy was to remand to allow it to make that determination.

        Hinton v. Hill, 342 Or 222, 149 P3d 1205 (2006). Petitioner was advised incorrectly that the
maximum possible sentence was only 226 months, she pleaded guilty on that basis, and the court then
imposed a 366-month sentence. In granting post-conviction relief, the post-conviction court vacated the
judgment and remanded either for resentencing within a 226-month maximum or to vacate petitioner‘s guilty
pleas. The post-conviction court was not required to vacate the convictions; rather, the post-conviction court
had authority under ORS 138.520 to allow resentencing within the range of which petitioner had been
advised, because that disposition is sufficient to remedy the actual prejudice that petitioner suffered.

         Gonzalez v. State of Oregon, 340 Or 452, 134 P3d 955 (2006). Petitioner, a Mexican national,
pleaded guilty to PCS and DCS. His counsel advised him that the convictions ―may cause‖ his deportation
and exclusion; petitioner did not ask for advice regarding the specific likelihood of deportation, and counsel
did not offer such advice. When INS commenced deportation proceeding, petitioner sought post-conviction
relief to vacate his convictions. Held: Counsel did not provide constitutionally inadequate assistance by not
advising petitioner regarding the specific likelihood of deportation. The Oregon Constitution does not
require counsel ―to attempt to specify the likelihood that the trial court might impose the maximum sentence
or the minimum sentence. If the constitution does not require that level of specificity concerning the direct
consequences of a criminal conviction, we see no constitutional warrant for requiring that level of specificity
                                                                                                         55

concerning a collateral consequence of a conviction.‖

        Harding v. Hall, 210 Or App 753, ___ P3d ___ (2007). The post-conviction court lacked authority
to sua sponte, and without a hearing, dismiss a petition with prejudice on the ground that it was not filed
within the statute of limitations. Although a post-conviction court has the authority under ORS 138.525 to
dismiss a ―meritless‖ petition on its own motion, such a dismissal must be without prejudice if the petition is
dismissed without a hearing and the petitioner does not have counsel.

         Peed v. Hill, 210 Or App 704, ___ P3d ___ (2007). The post-conviction court correctly dismissed
the petition. Petitioner‘s claims of sentencing-court error were based on Crawford v. Washington; Crawford
did not announce a ―watershed‖ rule, and thus it does not apply retroactively. Petitioner‘s claims of
inadequate assistance of counsel based on counsel‘s failure to foresee Crawford fail because those claims
contradict his assertion that his present claim ―reasonably could not have been raised‖ before Crawford;
moreover, he offers no persuasive reason why counsel should have anticipated that the United States
Supreme Court would deviate from its previous precedent when it decided Crawford.

        Asman v. State of Oregon, 210 Or App 369, 150 P3d 1101 (2007). In this post-conviction case,
petitioner moved for summary judgment in his favor. The court denied his motion, but ultimately granted a
motion filed by defendant for summary judgment in its favor. On appeal, petitioner assigned error to the
denial of his motion, but did not also challenge the court‘s judgment granting relief in defendant‘s favor.
Held: Petitioner‘s challenge to the denial of his motion is not reviewable, because the judgment from which
petitioner appeals was not the result of the denial of his summary judgment motion.

          Snodgrass v. Lampert, 210 Or App 390, 150 P3d 1109 (2007). Trial counsel reasonably did not
object to the imposition of consecutive sentences on the ground that the sexual offenses, committed against a
single victim on a single night, were committed in a continuous and uninterrupted course of conduct and that
the court was required to make the findings set forth in ORS 137.123(5) to support the imposition of
consecutive sentences. Although the sentencing court‘s findings were not phrased in the precise terms of the
statute, trial counsel reasonably could have interpreted the trial court‘s findings to substantively encompass
findings that would support consecutive sentences under ORS 137.123(5)(b). Moreover, in light of the
statements that the trial court made, petitioner did not prove that, if counsel had objected, the trial court
would not have re-couched its findings in the language of the statute.

        Hendricks v. Hill, 209 Or App 812, 149 P3d 318 (2006). Even assuming the state had the ability to
preserve a claim of error by filing a post-judgment objection to a grant of relief, the post-conviction court
committed plain error by granting relief based on an issue that was not alleged in the petition. The Court of
Appeals exercised its discretion to review the issue because the state‘s practical opportunity to respond to the
error – which appeared for the first time in the judgment – was ―minimal or nonexistent.‖

         Peeples v. Lampert, 209 Or App 17, 146 P3d 352 (2006). [1] Because petitioner failed to ask the
court to consider less-severe alternative sanctions for his refusal to be deposed, he failed to preserve a
challenge to the post-conviction court‘s dismissal sanction under ORCP 46D for his refusal to submit to a
deposition. [2] On the merits, the appellate court was bound by the post-conviction court‘s factual finding
that petitioner‘s request for a continuance constituted a refusal to be deposed; on those facts, the post-
conviction court did not abuse its discretion when it dismissed the petition.

        McDonald v. Belleque, 206 Or App 655, 138 P3d 392, rev den 341 Or 392 (2006). Petitioner filed
an untimely petition for post-conviction relief, claiming that his attorney in 1997 should have objected to the
sentencing court‘s reliance on out-of-court statements that petitioner claims now would be considered
―testimonial‖ under Crawford v. Washington. He also made a ―straight‖ claim of sentencing-court error on
the ground that the court should not have considered the statements, and he argued that his default in filing a
timely petition should be excused under ORS 138.510(3) because he could not reasonably have been raised
56

this claim before the issuance of Crawford. The post-conviction court dismissed the petition as time-barred.
Held: Affirmed. [1] Even if Crawford applies retroactively to cases on collateral review (and if
―retroactivity‖ overrides the statute of limitations), petitioner‘s claim of sentencing-court error fails because
the Confrontation Clause does not apply at sentencing. [2] Petitioner‘s alternative claim of inadequate
assistance is time-barred because he reasonably could have raised it in a timely petition; his claim that he
couldn‘t raise the issue before Crawford is irreconcilable with his argument that counsel should have raised
the issue. Moreover, because the Confrontation Clause does not apply at sentencing, counsel reasonably did
not argue otherwise.

         Gill v. Lampert, 205 Or App 90, 132 P3d 674 (2006). Petitioner was convicted in 1998 by jury
verdict of two counts of attempted first-degree assault for shooting at two police officers, and the court found
him to be a dangerous offender ORS 161.725(1)(b) based on its own finding that he ―seriously endangered
the life or safety of another.‖ Petitioner later petitioned for post-conviction relief contending that his trial
counsel provided inadequate assistance by failing to object to the court‘s finding based on State v. Mitchell,
84 Or App 452, rev den (1987) (under Article 1, section 11, a criminal defendant is entitled to a jury finding
on serious endangerment because it is a fact that characterizes the offense). The post-conviction court denied
petitioner‘s claim of inadequate assistance of counsel for failing to object. Held: Reversed and remanded.
[1] Because the jury, by its verdict, did not necessarily find serious endangerment and because counsel had
no tactical reason for not objecting, counsel provided inadequate assistance by failing to raise the Mitchell
issue. [2] The jury‘s verdict was not sufficient of itself to constitute the required finding, because ―an
attempted assault can occur without the offender seriously endangering the life or safety of any person.‖
[3] Petitioner was prejudiced by the deficiency because the jurors rationally could have found that he did not
seriously endanger the victims.

          Lutz v. Hill, 205 Or App 252, 134 P3d 1003, rev den 341 Or 140 (2006). Petitioner filed an
untimely and successive petition for post-conviction relief, claiming that his attorney in 1996 should have
objected to the imposition of departure sentences on Sixth Amendment grounds based on the argument that
ultimately prevailed in Apprendi v. New Jersey, 530 US 466 (2000), and Blakely v. Washington, 542 US 296
(2004), which held that a criminal defendant is entitled to have any departure findings made by a jury, not by
the trial court. He also made a ―straight‖ challenge to his sentence based on Blakely. The court granted
summary judgment on the ground that petitioner‘s claims are time-barred under ORS 138.510 and ORS
138.550, because he reasonably could have raised his claims in a timely petition, and on the ground that his
straight challenge to his sentence is barred because Apprendi and Blakely do not apply retroactively to cases
that were final when they were decided. Held: Affirmed. [1] Petitioner‘s claim of sentencing-court error
fails because Apprendi and Blakely do not apply retroactively. [2] Petitioner‘s claim of inadequate assistance
fails because, based on then-existing law, counsel reasonably did not anticipate Apprendi and Blakely.

PROSTITUTION

         State v. Krueger, 208 Or App 166, 144 P3d 1007 (2006). The Portland city ordinance prohibiting
―prostitution procurement activity‖ is not preempted by state law. The terms ―lingering,‖ ―repeatedly
circling‖ in a motor vehicle, or ―repeatedly beckoning‖ to pedestrians or motor-vehicle operators do not
render the ordinance facially vague in violation of the 14th Amend. Due Process Clause because (1) the
ordinance is not vague in all of its possible applications and (2) because the terms, read in context, give fair
warning of the conduct that is prohibited.

RECKLESSLY ENDANGERING

         State v. Mojarro-Sandoval, 208 Or App 178, 144 P3d 996, rev den 342 Or ___ (2006). Under
ORS 163.195, a person commits the crime of recklessly endangering another person if he or she engages in
conduct that creates a substantial risk of serious physical injury to another. The state is not required to prove
that other people were in fact exposed to harm. Following State v. Harbert, 155 Or App 137, rev den 327 Or
                                                                                                            57

554 (1998). Here, even without evidence of impaired driving, the state proved that defendant recklessly
endangered his two passengers by driving while under the influence of intoxicants.

RESISTING ARREST

         State v. Powell, 209 Or App 255, 147 P3d 933 (2006). Defendant, who had been arrested for DUII,
refused to consent to a blood draw. Based on probable cause and exigent circumstances, the officers
attempted do perform a forced draw, but defendant resisted for almost an hour, until several people restrained
him. Defendant cooperated with the officers after the blood was drawn. The state charged defendant with
resisting arrest and other charges arising from the incident. The trial court denied defendant‘s motion for a
judgment of acquittal. Held: Reversed. A person commits the crime of resisting arrest by resisting an
officer who is making an arrest, which includes the booking process. Here, there was no evidence that
defendant was attempting to resist his custodial status, but only the seizure of his blood.

RESTRAINING ORDERS

          Rosiles-Flores v. Browning, 208 Or App 600, 145 P3d 328 (2006). The trial court erroneously
denied the petitioner‘s petition for a FAPA restraining order on the ground that the respondent previously
had obtained a restraining order prohibiting her from contacting him. The existing order did not protect
petitioner from any unwanted contacts, because the person who obtains such an order is not restrained from
doing anything. Thus, if either party alleges sufficient facts, the party is entitled to a separate order, ensuring
that all alleged victims of abuse have immediate legal recourse and that all accused abusers have an
opportunity to be heard.

RIGHT TO COUNSEL

        Right to counsel: before indictment, during pretrial stage

         State v. Dinsmore, 342 Or 1, 147 P3d 1146 (2006). Based on a fatal vehicle accident, defendant was
convicted of vehicular assault, manslaughter, DUII, and other traffic offenses. The officer who administered
the breath test unlawfully interfered with defendant‘s right to consult with counsel under State v. Durbin, 335
Or 183 (2003), by failing to let her have a private conversation. Although ORS 813.320(1) permits
admission of the breath-test result for all charges other than DUII despite any noncompliance with implied-
consent requirements, the right-to-counsel rule in Durbin applies with equal force when the defendant is
arrested for DUII and other charges, too, and is asked to submit to a breath test. Consequently, the breath-
test result must be suppressed as to all the charges, not just the DUII charge.

         State v. Tiner, 340 Or 551, 135 P3d 305 (2006). Examining and photographing tattoos on
defendant‘s torso was not a ―critical stage of the proceedings‖ at which he had a right to have his attorney
present.

         State v. Ragland, 210 Or App 182, 149 P3d 1254 (2006). Defendant invoked her right to counsel
and to remain silent ten minutes into an encounter with officers that resulted in an arrest for DUII. At trial,
the court allowed the prosecutor to cross-examine the defendant on matters related to the defendant‘s
invocation of her right to counsel and to remain silent. The court also permitted the prosecutor to comment
directly in closing argument on defendant‘s failure to ―speak with the officer‖ and explain herself after she
was arrested. Held: The trial court erroneously overruled defendant‘s objections to the prosecutor‘s cross-
examination questions and her comments on defendant‘s exercise of the right to remain silent and her right to
have counsel present during questioning, in violation of the Fifth Amendment and Art. I, § 12.

        State v. Dahlen, 209 Or App 110, 146 P3d 359, adh’d to on recon 210 Or App 362, 149 P3d 1234
(2006). An invocation of the right to counsel under Art. I, § 12, is unequivocal if a reasonable officer in the
58

circumstances would have understood that the suspect was invoking the right to counsel. The request must be
reviewed in light of what preceded the request; the trial court may not consider subsequent events or
conversations to decide whether a request was unequivocal. In this case, defendant, who was in custody
after being arrested for robbery, unequivocally invoked his Art. I, § 12, right to consult with counsel before
questioning when he twice asked, ―When can I call my attorney?,‖ and the officer characterized the request
as a ―demand.‖ Compare State v. Charboneau, 323 Or 38, 54 (―Will I have an opportunity to call my
attorney tonight?‖ was, under the circumstances, not an unequivocal request to consult with counsel).

         State v. Williams, 206 Or App 691, 138 P3d 885, rev den 342 Or 117 (2006). Defendant was
arrested for DUII and refused to submit to a breath test. He moved to suppress the refusal on the ground that
he was denied an opportunity to consult privately with counsel in deciding whether to take the breath test,
and he testified that he did not call counsel because he believed that the telephone at the station was
monitored and that his call would be recorded. The circuit court denied the motion, ruling that the mere
possibility that the phone call would be recorded would not violate his rights, and defendant was convicted at
trial. Held: Reversed and remanded. [1] The trial court erroneously concluded that the fact that a phone is
monitored is irrelevant because the state lacks authority to listen to the recording. [2] Because the court did
not make any finding on the ―crucial fact‖ of whether the phone line actually was recorded, the remedy is to
reverse the conviction and remand for the court to find whether the phone line was recorded. If it was
recorded, then the circuit court shall grant the motion to suppress and order a new trial; if not, it shall deny
the motion to suppress and reinstate defendant‘s conviction.
         Note: The opinion does not address whether defendant testified that he believed at the time of the
refusal that the phone was recorded, that he complained on that basis and asked to use a private phone, or
that his belief about the monitoring in fact caused him to refuse to take the test. It does not appear that the
court intended to hold that the arrestee‘s mere unexpressed suspicion that the offered telephone is monitored
requires suppression of a breath-test result or refusal. Rather, unless the defendant asks to consult with
counsel, he cannot insist that his right to do so was denied. And if the defendant had asked to consult with
counsel and the immediately available phone is monitored, it is reasonable to assume that the officer would
have offered a private phone.

        State v. McHenry, 205 Or App 310, 134 P3d 1016 (2006). After defendant initially refused without
explanation to submit to a breath test, the officer noted the suspension period and asked him a second time if
he would consent to a breath test. Defendant responded, ―No, I‘m not blowing until I talk to my attorney,‖
and the officer treated that as a refusal. The trial court denied defendant‘s motion to suppress his refusal
concluding that his initial refusal was final. Held: Reversed. Defendant‘s response constituted a request to
consult with a lawyer, and the officer‘s failure to provide him with a reasonable opportunity to obtain legal
advice before deciding whether to submit to a breath test requires exclusion of his refusal.

        Right to counsel: right to counsel of choice

          United States v. Gonzalez-Lopez, 548 US __, 126 S Ct 2557, 165 L Ed 2d 409 (2006). Defendant‘s
family retained Fahle, a local attorney, to represent defendant on felony charges in federal court, but
defendant then retained Lowe, an out-of-state attorney to assist. After initially allowing Lowe to assist, the
court denied his motion for admission pro hac vice and precluded him from assisting, denying defendant‘s
request that Lowe be his sole attorney at trial. Defendant eventually retained a third attorney to represent
him at trial, and he was found guilty. On appeal, the Eighth Circuit reversed and remanded, holding that the
district court erred in barring Lowe and that the error was not subject to harmless-error review.
Held: Affirmed. [1] An element of the right to counsel under the Sixth Amendment is ―the right of a
defendant who does not require appointed counsel to choose who will represent him.‖ [2] ―Where the right
to be assisted by counsel of one‘s choice is wrongly denied, therefore, it is unnecessary to conduct an
ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation.‖ So, ―erroneous deprivation
of the right to counsel of choice, with consequences that are necessarily unquantifiable and indeterminate,
unquestionably qualifies as structural error.‖
                                                                                                         59

         Note: The Court cautioned that this ruling does not qualify its prior rulings: ―[T]he right of counsel
of choice does not extend to defendants who require counsel to be appointed for them. Nor may a defendant
insist on representation by a person who is not a member of the bar, or demand that a court honor his waiver
of conflict-free representation. We have recognized a trial court‘s wide latitude in balancing the right to
counsel of choice against the needs of fairness and against the demands of its calendar.‖

        Right to counsel: waiver of counsel

         State v. Randant, 341 Or 64, 136 P3d 1113 (2006). Defendant repeatedly contacted detectives and
made statements about a murder, both before and after he was indicted and counsel was appointed. Before
the final two conversations, defendant expressly waived his Miranda rights. Detectives did not contact
defendant‘s lawyer before talking to him. Pretrial, defendant moved to suppress all of the statements. The
circuit court denied the motion and defendant was convicted. The Court of Appeals affirmed. Held:
Affirmed. Defendant‘s right to counsel under Article I, section 11, of the Oregon Constitution and the Sixth
Amendment was not violated. [1] If the right to counsel has attached, a defendant nonetheless may initiate
conversations with the detectives, and neither counsel‘s presence nor advance notice to counsel is required.
[2] Unlike a situation in which the defendant wishes to waive counsel at trial, detectives are not required to
engage in any formal colloquy to determine whether a defendant wishes to waive counsel during questioning.
[3] The Miranda warnings before the final two interviews were sufficient to establish that defendant intended
to waive counsel. [4] The detectives‘ conduct in discussing a possible polygraph examination and other
typical subjects of lawyer-client communications after defendant‘s initiation of conversation did not
impermissibly interfere with his right to counsel. Rather, the detectives acted professionally, clarified any
misunderstandings, and reminded defendant that his statements could be used against him.

        Right to counsel: appointment of counsel and consultation

         Larsen v. Board of Parole, 206 Or App 353, 138 P3d 16 (2006). [1] Petitioner‘s statutory right to
counsel in an aggravated-murder review hearing before the parole board was honored. [2] Although he
complains that he was denied the opportunity to confer directly with counsel during the hearing, he failed to
establish that he was prejudiced. [3] Even assuming petitioner has a constitutional right to counsel under
Article I, section 10, and the Fourteenth Amendment, those rights were not violated. The record shows that
counsel participated in the hearing and that both petitioner and counsel presented evidence to the board.

         State v. Shank, 206 Or App 280, 136 P3d 101 (2006). Defendant appealed from a limited judgment
that required her, per ORS 151.487 to contribute $127 toward the cost of her court-appointed counsel, in a
criminal case in which the charges ultimately were dismissed. Held: The limited judgment is appealable
under ORS 19.205(5), but the State Public Defender had no authority to represent defendant, because it was
not a judgment ―in a criminal action‖ under ORS 138.020, and hence defendant was not entitled to court-
appointed counsel for the appeal.

        Right to counsel: substitution of counsel

        State v. Johnson, 340 Or 319, 131 P3d 173 (2006). The trial court properly denied defendant‘s
motion for appointment of substitute counsel — the court ―considered defendant‘s complaints and reasonably
concluded that those complaints did not present legitimate reasons for appointing new counsel.‖

         State v. Taylor, 207 Or App 649, 142 P3d 1093 (2006), rev den 342 Or 299 (2007). The trial court
did not abuse discretion under ORS 135.050, which allows the court to substitute appointed counsel ―when
the interests of justice require‖ substitution, when it denied defendant‘s motion for substitute counsel. The
mere fact that defendant had filed a complaint with the Oregon State Bar did not create a conflict that
required substitution. Denial of the motion did not violate defendant‘s Sixth Amendment right to counsel,
because he did not demonstrate a reasonable probability that a conflict existed that affected counsel‘s
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performance, as distinguished from a theoretical conflict of interest.
         See also State v. Estacio, 208 Or App 107, 144 P3d 1016, rev den 342 Or 117 (2006) (defendant‘s
unspecified Bar complaint did not demonstrate actual conflict of interest as distinguished from a theoretical
conflict; court had no duty to further inquire).

        State v. Gonzalez, 206 Or App 552, 138 P3d 35 (2006). Defendant was charged by a 21-count
indictment with a variety of sexually related offenses that he committed against a 14-year-old girl and her
younger brother. Prior to trial, defendant moved for appointment of substitute counsel, but the trial court
denied that motion and denied counsel‘s motion to withdraw. Defendant was convicted on all counts.
Held: Affirmed. In light of State v. Smith, the trial court sufficiently ―considered defendant‘s objections
regarding the competency of his [counsel] and, exercising its discretion, denied defendant‘s motion.‖

        Right to counsel: adequacy of representation
        See also ―Post-Conviction Proceedings,‖ above.

         Johnson v. Babcock, 206 Or App 217, 136 P3d 77, rev den 341 Or 450 (2006). Plaintiff, a
convicted defendant, filed a malpractice complaint against his former attorney claiming that he failed to
object to an excessive sentence. After serving a period that exceeded the legal maximum term, plaintiff
obtained federal habeas corpus relief based on his claim of inadequate assistance of counsel and was
released from custody. He then filed this malpractice action. The trial court dismissed on the pleadings,
concluding that plaintiff‘s allegation that he had obtained habeas corpus relief on the sentencing issue was
insufficient to allege legally cognizable harm (which requires that he allege that he had been ―exonerated‖).
Held: Reversed. Although plaintiff did not allege that he had obtained relief from the conviction itself, he
alleged the requisite harm by alleging that he had served a sentence that later was held to be unlawful.

SEARCH & SEIZURE

        Search & seizure: privacy interests / searches

         Samson v. California, 547 US __, 126 S Ct 2193, 165 L Ed 2d 250 (2006). The Fourth Amendment
does not preclude enforcement of a state statute that requires a prisoner released on parole to agree to submit
to a search or seizure by a parole or peace officer without a warrant and without cause, provided the search is
not ―arbitrary, capricious, or harassing.‖ The other mandated conditions of parole mean that parolees ―have
severely diminished expectations of privacy by virtue of their status alone,‖ and the state interest in
supervising parolees is ―substantial.‖ The fact that many jurisdictions require reasonable suspicion to justify
a search of a parolee ―is of little relevance.‖

         Georgia v. Randolph, 547 US 103, 126 S Ct 1515, 164 L Ed 2d 208 (2006). Officer responded to
call of a domestic dispute and contacted defendant and his wife at their house. Wife accused defendant of
drug abuse, the officer requested permission to search the residence, and wife consented but defendant
refused. Based on wife‘s consent, the officer entered and seized evidence that she directed him to. The
officer then obtained a warrant. The trial court found that the search was lawful based on wife‘s common
authority, and the state supreme court reversed, holding that the entry violated the Fourth Amendment.
Held: Affirmed (in a 5-3 decision). [1] ―Since the co-tenant wishing to open the door to a third party has no
recognized authority in law or social practice to prevail over a present and objecting co-tenant, his disputed
invitation, without more, gives a police officer no better claim to reasonableness in entering than the officer
would have in the absence of any consent at all.‖ [2] ―We therefore hold that a warrantless search of a
shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be
justified as reasonable as to him on the basis of consent given to the police by another resident.‖
         Notes: (a) The Court reaffirmed United States v. Matlock, 415 US 164 (1974), which held that
consent by someone with common authority over the premises or effects at issue is valid as against the
absent co-tenant who might object. (b) The Court noted that the police, having obtained valid consent by
                                                                                                         61

someone with authority, are not obliged first to contact a co-tenant who might object but who is absent,
asleep, or unavailable. (c) The Court noted that if the warrantless entry is justified under the Fourth
Amendment on a basis other than consent (e.g., exigent circumstances), the objection of the co-tenant is not
determinative.

         State v. Makuch/Reisterer, 340 Or 658, 136 P3d 35 (2006). Officers executed a search warrant at an
attorney‘s office in Washington based on probable cause to believe that he was involved in a marijuana grow
operation. The attorney gave defendants‘ first names in response to a reference by one of the officers to his
―Oregon associates.‖ The officers searched the attorney‘s personal organizer, which contained information
that later was used to support a search warrant of defendants‘ business. The circuit court ordered suppression
of the information found in the personal organizer. The Court of Appeals reversed. Held: Affirmed.
[1] Defendants had no possessory or privacy interest in their lawyer‘s home or his personal organizer, nor did
their status as his clients give them a privacy interest in materials possessed by him. [2] ―And defendants
had no privacy interest in the fact that they were clients of [his], or that their names and addresses were
written in [his] personal organizer, simply because that information was not private; [his] representation of
defendant was a matter of public record, and defendant do not suggest that their names and addresses were
secret or nonpublic.‖

         State v. Crandall, 340 Or 645, 136 P3d 30 (2006). A police officer directed defendant to ―stop‖ and
―come here.‖ Defendant obeyed that direction but, before reaching the officer, placed a clear plastic baggie
containing drugs underneath a parked car. Another officer observed defendant‘s act and retrieved the baggie.
The trial court denied defendant‘s motion to suppress. The Court of Appeals reversed on the ground that the
stop was unlawful and the defendant had not ―abandoned‖ the baggie. Held: Reversed. The officer‘s
retrieval and inspection of the baggie was lawful because ―defendant had no right to privacy in the baggie,
and the officers did not engage in a search when they discovered what any member of the public could have
seen — a baggie that appeared to contain a controlled substance lying under someone‘s car.‖ Defendant‘s
―unilateral, voluntary decision to put the baggie underneath the car‖ was an intervening act that ―sufficiently
attenuated the discovery of the evidence from the prior illegality,‖ and it was not the product of the stop.

        State v. Tiner, 340 Or 551, 135 P3d 305 (2006). Examining and photographing tattoos on
defendant‘s torso did not violate his constitutionally protected privacy interests, and hence was not a search,
because defendant was a jail inmate at the time: ―Once defendant was imprisoned, he lacked the right to
privacy that he enjoyed when he was not in prison.‖

         State v. Johnson, 340 Or 319, 131 P3d 173 (2006). Defendant did not ―have a cognizable privacy
interest in the license plates on his car, photographs taken of him in a public place, the address that he
provided to his employer for tax and payroll purposes, or the telephone usage records of his employer.‖
Although ―[d]efendant clearly had a cognizable privacy interest in the content of his telephone calls * * * ,
we cannot identify a source of law that establishes that defendant also had some interest in keeping private
any records kept by a third party, his cellular telephone provider, respecting his cellular telephone usage. The
cellular telephone provider generated and maintained those records from the provider‘s own equipment and
for the provider's own, separate, and legitimate business purposes (such as billing). Neither are we aware of
any principle that would prevent the cellular telephone provider from responding to a proper subpoena.
Defendant‘s assignment of error is not well taken.‖

        State v. Wood, 210 Or App 126, 149 P3d 1265 (2006). An officer found defendant unconscious in
the front seat of a car with loud music playing. He attempted to awaken defendant three times, but each time
defendant would only briefly raise his head, look at the officer ―in a gaze,‖ and then pass out again.
Concerned for the defendant‘s well-being, the officer opened defendant‘s car door and immediately smelled
a strong odor of alcohol. After further investigation, the officer arrested defendant for DUII. Defendant
moved to suppress all of the evidence obtained after the officer opened the car door, arguing that the opening
of the door amounted to an unlawful warrantless search. Held: ORS 133.033 authorizes police to render aid
62

to injured or ill persons. The opening of the car door to render the aid constituted a ―search‖ within the
meaning of Article I, section 9 of the Oregon Constitution, but was justified under the emergency-aid
exception to the warrant requirement because the there was ―objective indicia of a particular individual being
in distress‖ in the area entered at the time of entry.

        State v. Stock, 209 Or App 7, 146 P3d 393 (2006). During an inventory of a car, the officer
discovered a small plastic bag that had been placed inside a folded bottle cap, next to a methamphetamine
pipe and a used syringe. The circuit court denied defendant‘s motion to suppress. Held: Reversed. [1] The
container – a bottle cap bent around a plastic bag – did not ―announce its contents, and thus defendant had a
privacy interest in it. [2] The opening of the bottle cap and plastic bag was not authorized by the inventory
policy, which prohibited the opening of closed containers. [3] The container, along with the accompanying
drug paraphernalia, provided probable cause to believe that it contained drugs; thus, the officer had probable
cause to arrest defendant and was entitled to open the container incident to arrest.

        Search & seizure: probable cause

         State v. Henderson, 341 Or 219, 142 P3d 58 (2006). In an affidavit supporting an application for a
search warrant, the affiant explained that defendant was known to have possessed a ring that had been stolen
three weeks before, and that people who possess stolen property frequently hide the property in any of
various locations in and around their residences. Defendant moved to suppress on the ground that the
affidavit did not provide probable cause to search defendant‘s residence, and that it was stale. The trial court
denied the motion, and defendant was convicted on stipulated facts. The Court of Appeals concluded that the
warrant was not supported by probable cause because the ―myriad and diverse‖ number of places where the
ring might be hidden ―diffused‖ the probability that the ring would be in any one of those locations.
Held: Reversed. Because the ring was a valuable nonperishable item, the affidavit was not stale three weeks
after the theft. Moreover, the description in the affidavit of numerous locations where the ring might be
concealed within the residence did not detract from the probability that the ring would be at the residence
itself.

         State v. McDowell, 211 Or App __, __ P3d __ (March 14, 2007). Officers found drugs in
defendant‘s apartment pursuant to a search warrant for the residence. The search-warrant affidavit desribed
the officer‘s experience with drug deals and a long description of his experience with searches of vehicles
and the likelihood of finding evidence in vehicles. The only general reference to residences was the
statement that drug dealers commonly ―store their drug inventory and drug-related paraphernalia * * * in
their residences, outbuildings and vehicles,‖ and that it is common for them ―to maintain in their residence
records relating to their drug dealing activities.‖ The affidavit also described a controlled methamphetamine
buy that an informant had performed at the apartment. The warrant also purported to command a search of
both the residence and ―the above described vehicle,‖ even though neither the affidavit nor the warrant made
any other reference to a vehicle to be searched. Defendant moved to suppress the evidence found at the
apartment, arguing that the affidavit did not contain the officer‘s subjective probable cause to believe that
evidence would be found at the apartment, as opposed to the vehicle. The trial court denied the motion,
finding that the ―boilerplate‖ wording in the affidavit did not provide an express explanation as to why it was
likely that evidence would be at the apartment, ―a reasonable person would conclude‖ that, based on the
controlled buy, more controlled substances were likely to be present there. Held: Affirmed. ―Although we
are troubled by the lack of care and attention to detail in the preparation and review of [the affidavit], we
agree with the state that [the officer‘s] subjective belief regarding the residence may be inferred from the
affidavit.‖ Although the affiant did not explicitly state the officer‘s subjective belief that evidence would be
found in the residence, he described his knowledge of previous drug sales at the residence, his basis for
believing that the resident had an ongoing supply of drugs, and stated his knowledge that drug dealers
commonly keep drugs and paraphernalia in their residences.
                                                                                                        63

         State v. Barraza, 206 Or App 505, 136 P3d 1126 (2006). Officers responding to a noise complaint
observed from outside the window three people drinking beer; two appeared to be minors. Believing she had
had probable cause to believe that the adults had furnished the alcohol to minors, the officer asked for
permission to search the house for other minors. One of the men, a non-resident, consented to the search.
After the minors claimed that they had brought their own beer, the officer concluded that she did not have
probable cause for furnishing; however, when she went to obtain her citation book to cite the minors for
MIP, she saw three marijuana plants in plain view. Defendant was charged with MCS and moved to
suppress the plants. The prosecutor conceded that the man who authorized the entry lacked authority to
consent to a search. But the circuit court denied the motion, concluding that the entry was justified based on
probable cause and exigent circumstances. Held: Reversed. [1] Even if the officer had probable cause to
believe that the adults had violated ORS 475.410, that is only a violation and hence cannot justify the entry.
[2] The officer‘s ―belief that a crime had been committed was not objectively reasonable‖ — because it was
more likely that the minors brought their own beer, she lacked probable cause to believe that the adults
furnished it to them. ―Although the presence of an innocent explanation does not necessarily dispel probable
cause, the incriminating explanation must be the more likely one when all the facts are considered.‖
         Note: Because the officer lacked probable cause, the court did not consider whether exigent
circumstances existed.

        Search & seizure: search / entry and seizure pursuant to warrant

         Hudson v. Michigan, 547 US __, 126 S Ct 2159, 165 L Ed 2d 56 (2006). State officers executing a
valid search warrant at defendant‘s residence entered immediately after knocking, and they discovered
evidence of crimes during the ensuing search. The state conceded that the officers failed to comply with the
Fourth Amendment‘s knock-and-announce rule, but the state court denied defendant‘s motion to suppress,
concluding that the evidence at issue was not the product of the violation. Held: Affirmed. [1] ―The
common-law principle that law-enforcement officers must announce their presence and provide an
opportunity to open the door is an ancient one.‖ But an officer need not knock and announce ―when
circumstances present a threat of physical violence or if there is reason to believe that evidence would likely
be destroyed if advance notice is given, or if knocking and announcing would be futile. We require only that
police have a reasonable suspicion under the particular circumstances that one of these grounds for failing to
knock and announce exists.‖ [2] ―Our cases show that but-for causality is only a necessary, not a sufficient,
condition for suppression. [Here], the constitutional violation of an illegal manner of entry was not a but-for
cause of obtaining evidence‖ because the officers would have found the evidence regardless of the violation.
[3] ―What the knock-and-announce rule has never protected, however, is one‘s interest in preventing the
government from seeing or taking evidence described in the warrant. Since the interests that were violated in
this case have nothing to do with the seizure of evidence, the exclusionary rule is inapplicable.‖ [4] ―In sum,
the social costs of applying the exclusionary rule to knock-and-announce violations are considerable; the
incentive to such violations is minimal to begin with, and the extant deterrences against them are substantial
— incomparably greater than the factors deterring warrantless entries when Mapp was decided. Resort to the
massive remedy of suppressing evidence of guilt is unjustified.‖

         United States v. Grubbs, 547 US 90, 126 S Ct 1494, 164 L Ed 2d 195 (2006). A magistrate issued
an ―anticipatory‖ search warrant for defendant‘s residence based on an affidavit that explained that the
warrant would not be executed ―unless and until‖ a package of child pornography, which defendant had
ordered, was delivered there; that condition was not listed in the warrant. Defendant was given a copy of the
warrant when it was executed, but he was not given a copy of the affidavit. The trial court denied
defendant‘s motion to suppress, but the Ninth Circuit reversed, concluding that the warrant was not
sufficiently particular under the Fourth Amendment because it did not list the ―triggering condition.‖
Held: Reversed. [1] Anticipatory warrants are permissible under the Fourth Amendment. ―An anticipatory
warrant is a warrant based upon an affidavit showing probable cause that at some future time (but not
presently) certain evidence of crime will be located at a specified place.‖ ―They require the magistrate to
determine (1) that it is probable that (2) contraband, evidence of a crime, or a fugitive will be on the
64

described premises (3) when the warrant is executed.‖ ―[F]or a conditioned anticipatory warrant to comply
with the Fourth Amendment‘s requirement of probable cause, two prerequisites of probability must be
satisfied. It must be true not only that if the triggering condition occurs there is a fair probability that
contraband or evidence of a crime will be found in a particular place, but also that there is probable cause to
believe the triggering condition will occur. The supporting affidavit must provide the magistrate with
sufficient information to evaluate both aspects of the probable-cause determination.‖ [2] The affidavit in this
case was sufficient to support issuance of the anticipatory warrant. [3] ―The Fourth Amendment * * *
specifies only two matters that must be ‗particularly describ[ed]‘ in the warrant: ‗the place to be searched‘
and ‗the person or things to be seized.‘‖ The ―particularity requirement does not include the conditions
precedent to execution of the warrant.‖ The Ninth Circuit‘s decision erroneously ―assumes that the
executing officer must present the property owner with a copy of the warrant before conducting his search.
In fact, however, neither the Fourth Amendment nor Rule 41 [of the FRCrP] imposes such a requirement.‖

        State v. Carter, 342 Or 39, 147 P3d 1151 (2006). A warrant is not facially invalid merely because it
authorizes only a search, but not a seizure. The lack of a ―seizure‖ provision did not render the warrant a
general warrant. Because this warrant authorized the police to invade defendant‘s privacy by searching for
drugs and evidence, the separate invasion of the defendant‘s possessory interests by the seizure may be
analyzed by reference to the plain-view exception to the warrant requirement.
        See also State v. Brown, 203 Or App 616 (2006) (remanding for plain-view determination).

         State v. Henderson, 341 Or 219, 142 P3d 58 (2006). In an affidavit supporting an application for a
search warrant, the affiant explained that defendant was known to have possessed a ring that had been stolen
three weeks before, and that people who possess stolen property frequently hide the property in any of
various locations in and around their residences. Defendant moved to suppress on the ground that the
affidavit did not provide probable cause to search defendant‘s residence, and that it was stale; she also
asserted that the officers who executed the warrant violated the procedures in ORS 133.575(3) by failing to
read and provide a copy of the warrant before the search. The trial court denied the motion, and defendant
was convicted on stipulated facts. The Court of Appeals concluded that the warrant was not supported by
probable cause because the ―myriad and diverse‖ number of places where the ring might be hidden
―diffused‖ the probability that the ring would be in any one of those locations. Held: Reversed. [1] Because
the ring was a valuable nonperishable item, the affidavit was not stale three weeks after the theft. Moreover,
the description in the affidavit of numerous locations where the ring might be concealed within the residence
did not detract from the probability that the ring would be at the residence itself. [2] Failure to read warrant
to defendant at time of execution violated ORS 133.575(3); however, under ORS 136.432, the violation did
not require suppression.

         State v. Makuch/Reisterer, 340 Or 658, 136 P3d 35 (2006). Officers executed a search warrant at an
attorney‘s office in Washington based on probable cause to believe that he was involved in a marijuana grow
operation. The attorney, who was present, gave defendants‘ first names in response to a reference by one of
the officers to his ―Oregon associates.‖ The officers searched the attorney‘s personal organizer, which
contained information that later was used to support a search warrant of defendant‘s business. Defendants
moved to suppress based on ORS 9.695, which generally provides that the files, papers, effects or work
premises or a lawyer ―shall not be subject to search or seizure by any law enforcement officer, either by
search warrant or otherwise.‖ It also provides for suppression of evidence seized in violation unless ―there is
probable cause to believe that the lawyer has committed, is committing or is about to commit a crime.‖ The
circuit court ordered suppression of the information found in the personal organizer, and the Court of
Appeals reversed. Held: Affirmed. Even if ORS 9.695 applies to a search in another state, suppression was
not required. An absolute exception exists if the officers have probable cause to believe that the lawyer has
committed any crime, even if it is unrelated to the basis for the search.

        State v. Johnson, 340 Or 319, 131 P3d 173 (2006). [1] The possible invalidity of the first search
warrant for defendant‘s residence did not entitled him to suppression because the state established that the
                                                                                                         65

evidence at issue inevitably would have been discovered and seized during execution of the second warrant,
which the officers would have and could have obtained had their first application been denied. Information
that was obtained during the first search and was included in the second affidavit was not necessary to
establish probable cause. ―[T]he inevitable-discovery doctrine is available in such circumstances, at least to
the extent that the state affirmatively shows [as it did here] not only that there was an independent basis for
obtaining a lawful warrant but that investigators would have sought a lawful warrant regardless of the
unlawful search.‖ [2] Defendant‘s challenge to some of the informant statements included in the affidavit for
the search warrant is unavailing because those statements were not necessary for probable cause.
[3] Statements from an informant included in the affidavit were sufficiently reliable because she ―was a
citizen informant who was willing to have her name used and who had no apparent motive to falsely accuse
defendant,‖ and ―her statements were based either on her own personal observation or statements made to her
by [the homicide victim].‖

         State v. McDowell, 211 Or App __, __ P3d __ (March 14, 2007). Officers found drugs in
defendant‘s apartment pursuant to a search warrant for the residence. The search-warrant affidavit desribed
the officer‘s experience with drug deals and a long description of his experience with searches of vehicles
and the likelihood of finding evidence in vehicles. The only general reference to residences was the
statement that drug dealers commonly ―store their drug inventory and drug-related paraphernalia * * * in
their residences, outbuildings and vehicles,‖ and that it is common for them ―to maintain in their residence
records relating to their drug dealing activities.‖ The affidavit also described a controlled methamphetamine
buy that an informant had performed at the apartment. The warrant also purported to command a search of
both the residence and ―the above described vehicle,‖ even though neither the affidavit nor the warrant made
any other reference to a vehicle to be searched. Defendant moved to suppress the evidence found at the
apartment, arguing that the affidavit did not contain the officer‘s subjective probable cause to believe that
evidence would be found at the apartment, as opposed to the vehicle. He also challenged the warrant itself
on the ground that it was not sufficiently particular because of the reference to the vehicle. The officer
testified in the hearing on the motion to suppress that the reference in the warrant to a ―vehicle‖ was a
mistake, and that he had sought a warrant to search the residence only. The trial court denied the motion,
finding that the ―boilerplate‖ wording in the affidavit did not provide an express explanation as to why it was
likely that evidence would be at the apartment, ―a reasonable person would conclude‖ that, based on the
controlled buy, more controlled substances were likely to be present there. Held: Affirmed. [1] ―Although
we are troubled by the lack of care and attention to detail in the preparation and review of [the affidavit], we
agree with the state that [the officer‘s] subjective belief regarding the residence may be inferred from the
affidavit.‖ Although the affiant did not explicitly state the officer‘s subjective belief that evidence would be
found in the residence, he described his knowledge of previous drug sales at the residence, his basis for
believing that the resident had an ongoing supply of drugs, and stated his knowledge that drug dealers
commonly keep drugs and paraphernalia in their residences. [2] Although the warrant mistakenly purported
to command a search of an unspecified vehicle, the description of the residence was sufficiently particular.
Given the lack of any description or mention of any vehicle, an executing officer reasonably could determine
from the face of the warrant that the place to be searched was the previously described apartment and that the
reference to a vehicle was inadvertent.

         State v. Luers, 211 Or App 34, ___ P3d ___ (2007). Even if a statement by defendant was the
product of exploitation of an unlawful stop, it was not necessary to establishing probable cause in the
affidavit supporting the search warrant; that is, because, even excising the questionable statement, the
warrant was supported by probable cause, the trial court correctly denied defendant‘s motion to suppress.

        Search & seizure: warrantless searches — automobile exception

         State v. Meharry, 342 Or 173, 149 P3d 1155 (2006). After seeing defendant‘s erratic driving and
observed her intoxicated condition as she walked from her car into the store, the officer had probable cause
to arrest her for DUII. The officer‘s search of the vehicle was justified under the automobile exception
66

because (1) the officer first encountered the vehicle and developed reasonable suspicion of a crime when
defendant was driving it; and (2) there was no physical or mechanical impediment to the vehicle being driven
away if the officer relinquished control of it. Thus, exigent circumstances continued, even though the car
was parked and it was not in defendant‘s immediate control at the time of the arrest.

        Search & seizure: warrantless searches — consent

         Georgia v. Randolph, 547 US __, 126 S Ct 1515, 164 L Ed 2d 208 (2006). Officer responded to call
of a domestic dispute and contacted defendant and his wife at their house. Wife accused defendant of drug
abuse, the officer requested permission to search the residence, and wife consented but defendant refused.
Based on wife‘s consent, the officer entered and seized evidence that she directed him to. The officer then
obtained a warrant. The trial court found that the search was lawful based on wife‘s common authority, and
the state supreme court reversed, holding that the entry violated the Fourth Amendment. Held: Affirmed (in
a 5-3 decision). [1] ―Since the co-tenant wishing to open the door to a third party has no recognized
authority in law or social practice to prevail over a present and objecting co-tenant, his disputed invitation,
without more, gives a police officer no better claim to reasonableness in entering than the officer would have
in the absence of any consent at all.‖ [2] ―We therefore hold that a warrantless search of a shared dwelling
for evidence over the express refusal of consent by a physically present resident cannot be justified as
reasonable as to him on the basis of consent given to the police by another resident.‖
         Notes: (a) The Court reaffirmed United States v. Matlock, 415 US 164 (1974), which held that
consent by someone with common authority over the premises or effects at issue is valid as against the
absent co-tenant who might object. (b) The Court noted that the police, having obtained valid consent by
someone with authority, are not obliged first to contact a co-tenant who might object but who is absent,
asleep, or unavailable. (c) The Court noted that if the warrantless entry is justified under the Fourth
Amendment on a basis other than consent (e.g., exigent circumstances), the objection of the co-tenant is not
determinative.

          State v. Ry/Guinto, 211 Or App __, __ P3d __ (March 14, 2007). During the course of a lawful
traffic stop, it quickly became apparent to the police officer that both defendants (the driver and passenger)
were extremely nervous, the passenger was hesitant to provide identification, and their statements about the
identity of the owner of the car were inconsistent with the name on the vehicle registration. Out of a concern
that a weapon was in the car, the officer asked for consent to search for weapons. The officer repeated his
request for consent to search several times after driver did not affirmatively respond to the request for
consent to search, but instead responded with statements such as ―I told you there wasn‘t a gun,‖ and ―I told
you we don‘t have any.‖ Ultimately, the driver consented to a search, and the officer found a large amount
of marijuana and $50,000 in cash. Defendants moved to suppress the evidence, arguing that the officer‘s
repeated requests for consent to search overwhelmed his free will. The trial court denied the motion. Held:
Affirmed. The consent was voluntary under Article I, § 9 and the Fourth Amendment. Although the officer
made repeated requests despite the driver‘s repeated statements that no weapons were in the car, the driver
never refused to consent, and none of the officer‘s requests was a ―command‖ or otherwise suggested that the
driver had no right to refuse consent. The officer‘s use of the phrase, ―I‘d like to search the car,‖ when read
in context, expressed his desire for defendants‘ consent and his understanding that he would not, and could
not, search without consent. The mere fact that defendants were lawfully stopped, and therefore were not
free to leave, did not render the requests for consent coercive.

         State v. White, 211 Or App 210, ___ P3d ___ (2007). Scope of consent is determined by an
―objective reasonableness‖ standard: what a reasonable person would have understood by the exchange.
Here, defendant‘s written consent expressly gave police the authority to enter the home for the purpose of
investigating the fire, and a reasonable person would understand that it was important to avoid contamination
of the scene; moreover, the house was marked with crime-scene tape stating ―Fire Line Do Not Cross‖; thus,
a reasonable person could infer that defendant‘s consent included his own exclusion from his property.
         Note: The issue in this case arose in the context of a challenge to the sufficiency of evidence to
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support defendant‘s conviction for interfering with a lawful order of a peace officer based on his conduct in
violating an officer‘s order that he not re-enter the home after signing the ―consent‖ form. The court decided
that, because the scope of consent included an implicit agreement to be excluded from the property, a
reasonable juror could have concluded that defendant violated a lawful, as opposed to an unlawful, order that
he stop.

         State v. Fugate, 210 Or App 8, 150 P3d 409 (2006). Officer asked defendant to show him a stereo
that was in a closed plastic case. When defendant opened the case, the officer saw a folded up piece of tin
foil which the officer knew was commonly used for the consumption and storage of drugs. Defendant
handed over the tin foil after the officer asked if he could ―see‖ it. Defendant then denied knowing what was
inside the tin foil, so the officer opened the foil and found a burnt residue of methamphetamine. Defendant
moved to suppress the evidence on the grounds that the officer exceeded the scope of any consent. Held:
[1] Because the tin foil was an opaque container, and there was no evidence that containers of that type
invariably contain controlled substances, the container is not one that ―announces its contents.‖
Consequently, the opening of the folded tin foil was a search. [2] The scope of consent is determined by
what an objectively reasonable person would have understood the particular consent given to include based
on all of the circumstances at the time the consent was given. The officer never asked for permission to
―search,‖ rather he only asked if he could ―see‖ the tin foil, without explaining why he wished to see it.
Under these circumstances, a reasonable person would not have understood that by handing over the tin foil
defendant was consenting to the foil being opened and its contents examined.

         State v. Brown, 209 Or App 699, 149 P3d 294 (2006). An officer approached defendant, who was
sitting in a car, because a second officer wanted to speak with defendant about information received from a
third officer. Defendant provided his driver‘s license to the first officer, who ran a warrants check and then
returned the license. The second officer told defendant he was free to leave, but he had information that
defendant dealt drugs out of his car, and asked twice for consent to search the car which defendant refused to
give. The officer subsequently noticed a dented soft drink can recognized as useable for smoking marijuana
in defendant‘s car. Defendant consented to giving the can to the officer, who found residue of burnt
marijuana on it. Defendant was arrested for possession of less than one ounce of marijuana within 1,000 feet
of a school. The officers searched defendant and his car and found drugs and drug paraphernalia. Defendant
moved to suppress all of the evidence as fruits of an unlawful stop. Held: Defendant was stopped when the
officer took defendant‘s ODL to conduct a warrant check. The stop was unlawful because the officer did not
have reasonable suspicion that defendant had committed or was about to commit a crime. Although the
officers had returned defendant‘s license and told defendant he was free to leave, the officers‘ request for
consent to search the car immediately after telling defendant he was free to leave, thereby intimating that
they believed defendant was engaged in illegal drug activity (along with the fact that there was two officers
present), prevented sufficient attenuation of the illegal stop. Thus, the evidence should have been suppressed
as the fruit of the unlawful act.

        Search & seizure: warrantless searches — emergency aid

        Brigham City, Utah v. Stuart, 547 US __, 126 S Ct 1943, 164 L Ed 2d 650 (2006). Officers
responding to a loud-party complaint saw juveniles drinking in the yard and then observed, through an open
window, a juvenile punch an adult inside the house. The officers entered, loudly announcing their presence,
and eventually arrested defendants for contributing to the delinquency of a minor and disorderly conduct.
The state court granted defendants‘ motion to suppress, concluding that the officers‘ entry violated the
Fourth Amendment. Held: Reversed and remanded. [1] Under the emergency-aid exception, ―law-
enforcement officers may enter a home without a warrant to render emergency assistance to an injured
occupant or to protect an occupant from imminent injury.‖ [2] The officers‘ subjective motivation for
entering was not relevant: ―An action is ‗reasonable‘ under the Fourth Amendment, regardless of the
individual officer‘s state of mind, as long as the circumstances, viewed objectively, justify the action.‖
[3] Although the observed assault was minor, ―the officers had an objectively reasonable basis for believing
68

both that the injured adult might need help and that the violence in the kitchen was just beginning‖— the
officers were not constitutionally required to await a more serious assault. [4] ―The manner of the officers‘
entry was also reasonable. * * * Under these circumstances, there was no violation of the Fourth
Amendment‘s knock-and-announce rule.‖

         State v. Bentz, 211 Or App 129 , ___ P3d ___ (2007). Officers arrived at an address in response to a
complaint that a man had entered an apartment with a gun. They saw the man in the doorway and secured the
gun, but became suspicious when another man got a ―scared‖ expression on his face and ran into the
apartment, despite one officer‘s command to stop. After five minutes, he and a woman finally came out;
they stated that only the woman‘s children were in the apartment. After a few minutes, the woman asked
whether she could get the children; one officer said yes, and then followed her into the apartment and found
defendant and another woman sitting in the living room. The officer asked defendant his name, and he gave
a false name; the officer believed he was lying and falsely told defendant that he was likely to be arrested.
Defendant gave his true name and stated that there was an outstanding warrant for his arrest. Before
confirming the warrant, the officer handcuffed defendant for the purpose of putting him in the patrol car, but
first inventoried his person pursuant to the city inventory ordinance and found a small bag of
methamphetamine in his pocket. The officer later confirmed the existence of the warrant. The trial court
denied defendant‘s motion to suppress, concluding that the entry into the apartment was unlawful, but that
the officer‘s request about defendant‘s identity was not ―exploitation‖ of any illegality. Held: [1] The trial
court incorrectly concluded that a request for a person‘s name, as opposed to a request for consent to a
search, cannot constitute ―exploitation‖ of an unlawful entry; ―exploitation‖ occurs if the officer‘s question
caused defendant to admit that he had a warrant. [2] The trial court‘s ruling could not be affirmed based on
the ―right for the wrong reason‖ doctrine. The entry was unlawful because: (a) it was not justified under the
emergency-aid exception because the circumstances did not give the officer reasonable grounds to believe
that there was a true emergency that required immediate action; and (b) it was not justified as a protective
sweep because no specific and articulable facts indicated that there could be persons present posing an
immediate threat of danger to the officers or others. Moreover, the existence of the outstanding warrant did
not attenuate the link between the illegality and the arrest, because the warrant could cure the illegal search
only if the arrest was lawful. The record was insufficient from which to conclude that the arrest was lawful
because it was possible that the warrant was issued in another state. Because, under ORS 133.310(2), the
officer was not authorized to arrest defendant on an out-of-state warrant except upon notice by an out-of-
state police officer, the record did not establish that the arrest was justified.

         State v. Wood, 210 Or App 126, 149 P3d 1265 (2006). An officer found defendant unconscious in
the front seat of a car with loud music playing. He attempted to awaken defendant three times, but each time
defendant would only briefly raise his head, look at the officer ―in a gaze,‖ and then pass out again.
Concerned for the defendant‘s well-being, the officer opened defendant‘s car door and immediately smelled
a strong odor of alcohol. After further investigation, the officer arrested defendant for DUII. Defendant
moved to suppress all of the evidence obtained after the officer opened the car door, arguing that the opening
of the door amounted to an unlawful warrantless search. Held: ORS 133.033 authorizes police to render aid
to injured or ill persons. The opening of the car door to render the aid constituted a ―search‖ within the
meaning of Article I, section 9 of the Oregon Constitution, but was justified under the emergency-aid
exception to the warrant requirement because the there was ―objective indicia of a particular individual being
in distress‖ in the area entered at the time of entry.

        State v. Burdick, 209 Or App 575, 149 P3d 190 (2006). Officers responded to a report that a man
with a knife had entered the apartment of a single female tenant who did not work, did not own a vehicle, and
was ―always there.‖ As they arrived, they saw a man run from the apartment complex. The apartment
manager and officers pounded on the apartment door but got no response. A sergeant on scene also learned
that a man who had been seen frequenting the female tenant‘s apartment had been ―acting kind of strange.‖
Unable to make entry through the front door, the sergeant went to an open window at the rear of the
apartment moved the curtains aside and looked into the apartment where he saw a man lying on a bed. The
                                                                                                        69

sergeant was eventually able to arouse the man who then opened the front door slightly. The sergeant pushed
the door open to look inside the apartment, but did not see the female tenant. Officers entered the apartment
and discovered defendant hiding in a bedroom. Defendant was identified as having ridden a stolen
motorcycle that was also located in the apartment, and was charged with unauthorized use of a vehicle.
Defendant challenged the officers‘ warrantless entry into the apartment as not justified under the emergency
aid doctrine. Held: A ―true emergency‖ exists if there are reliable, objective indicia of a potential
identifiable victim of a dangerous circumstance or a potential identifiable perpetrator of a dangerous act. The
sergeant was able to identify a specific potential victim (the woman tenant of the apartment), and a specific
potential perpetrator (the man with the knife), and there was no response to knocks on the door when it was
reasonable to expect a reply. The sergeant‘s belief that he needed to enter the apartment immediately to
render assistance was based on reliable, objective indicia of a ―true emergency‖ and the emergency aid
doctrine applied.

        Search & seizure: warrantless searches — incident to arrest

         State v. Bentz, 211 Or App 129, ___ P3d ___ (2007). Officers arrived at an address in response to a
complaint that a man had entered an apartment with a gun. They saw the man in the doorway and secured the
gun, but became suspicious when another man got a ―scared‖ expression on his face and ran into the
apartment, despite one officer‘s command to stop. After five minutes, he and a woman finally came out;
they stated that only the woman‘s children were in the apartment. After a few minutes, the woman asked
whether she could get the children; one officer said yes, and then followed her into the apartment and found
defendant and another woman sitting in the living room. The officer asked defendant his name, and he gave
a false name; the officer believed he was lying and falsely told defendant that he was likely to be arrested.
Defendant gave his true name and stated that there was an outstanding warrant for his arrest. Before
confirming the warrant, the officer handcuffed defendant for the purpose of putting him in the patrol car, but
first inventoried his person pursuant to the city inventory ordinance and found a small bag of
methamphetamine in his pocket. The officer later confirmed the existence of the warrant. The trial court
denied defendant‘s motion to suppress, concluding that the entry into the apartment was unlawful, but that
the officer‘s request about defendant‘s identity was not ―exploitation‖ of any illegality. Held: [1] The trial
court incorrectly concluded that a request for a person‘s name, as opposed to a request for consent to a
search, cannot constitute ―exploitation‖ of an unlawful entry; ―exploitation‖ occurs if the officer‘s question
caused defendant to admit that he had a warrant. [2] The trial court‘s ruling could not be affirmed based on
the ―right for the wrong reason‖ doctrine. The entry was unlawful because: (a) it was not justified under the
emergency-aid exception because the circumstances did not give the officer reasonable grounds to believe
that there was a true emergency that required immediate action; and (b) it was not justified as a protective
sweep because no specific and articulable facts indicated that there could be persons present posing an
immediate threat of danger to the officers or others.

        State v. Stock, 209 Or App 7, 146 P3d 393 (2006). During an inventory of a car, the officer
discovered a small plastic bag that had been placed inside a folded bottle cap, next to a methamphetamine
pipe and a used syringe. The circuit court denied defendant‘s motion to suppress. Held: Reversed. [1] The
container – a bottle cap bent around a plastic bag – did not ―announce its contents, and thus defendant had a
privacy interest in it. [2] The opening of the bottle cap and plastic bag was not authorized by the inventory
policy, which prohibited the opening of closed containers. [3] The container, along with the accompanying
drug paraphernalia, provided probable cause to believe that it contained drugs; thus, the officer had probable
cause to arrest defendant and was entitled to open the container incident to arrest.

        Search & seizure: warrantless searches — inevitable discovery

        State v. Johnson, 340 Or 319, 131 P3d 173 (2006). The possible invalidity of the first search
warrant for defendant‘s residence did not entitled him to suppression because the state established that the
evidence at issue inevitably would have been discovered and seized during execution of the second warrant,
70

which the officers would have and could have obtained had their first application been denied. Information
that was obtained during the first search and was included in the second affidavit was not necessary to
establish probable cause. ―[T]he inevitable-discovery doctrine is available in such circumstances, at least to
the extent that the state affirmatively shows [as it did here] not only that there was an independent basis for
obtaining a lawful warrant but that investigators would have sought a lawful warrant regardless of the
unlawful search.‖

        Search & seizure: warrantless searches — inventory / administrative searches

         Samson v. California, 547 US __, 126 S Ct 2193, 165 L Ed 2d 250 (2006). The Fourth Amendment
does not preclude enforcement of a state statute that requires a prisoner released on parole to agree to submit
to a search or seizure by a parole or peace officer without a warrant and without cause, provided the search is
not ―arbitrary, capricious, or harassing.‖ The other mandated conditions of parole mean that parolees ―have
severely diminished expectations of privacy by virtue of their status alone,‖ and the state interest in
supervising parolees is ―substantial.‖ The fact that many jurisdictions require reasonable suspicion to justify
a search of a parolee ―is of little relevance.‖

        State v. Stock, 209 Or App 7, 146 P3d 393 (2006). During an inventory of a car, the officer
discovered a small plastic bag that had been placed inside a folded bottle cap, next to a methamphetamine
pipe and a used syringe. The circuit court denied defendant‘s motion to suppress. Held: Reversed. [1] The
container – a bottle cap bent around a plastic bag – did not ―announce its contents, and thus defendant had a
privacy interest in it. [2] The opening of the bottle cap and plastic bag was not authorized by the inventory
policy, which prohibited the opening of closed containers. [3] The container, along with the accompanying
drug paraphernalia, provided probable cause to believe that it contained drugs; thus, the officer had probable
cause to arrest defendant and was entitled to open the container incident to arrest.

         State v. Nordloh, 208 Or App 309, 144 P3d 1013 (2006). An inventory policy that authorized a
search of ―all luggage and other containers‖ violated Art. I, § 9, because it was not reasonably related to the
purpose of the policy, which is to protect property and to eliminate false claims. Because the policy itself is
invalid for that reason, any evidence obtained during a search pursuant to the policy must be suppressed,
even if it was located in a closed container that typically would contain valuables.

         State v. Eldridge, 207 Or App 337, 142 P3d 82 (2006). After a lawful traffic stop, officers
impounded defendant‘s vehicle because his driver license was suspended. The North Bend Vehicle Towing
Policy provided all vehicles being towed ―shall be completely searched and inventoried prior to being
towed.‖ Although officers use a ―tow sheet‖ to conduct the inventory, it did not provide any guidance so as
to limit the inventory to accomplishing its permissible purposes (protection of the owner‘s property, to
prevent claims against police for lost items, and to protect police from dangerous items). The trial court
denied defendant‘s motion to suppress a bindle found in the car‘s center console. Held: Reversed. Because
the inventory program lacks standardized criteria or procedures that properly prevent officer discretion and
limit each inventory to a scope that is a constitutional administrative action, the search was an unlawful
warrantless search.

        Search & seizure: warrantless searches — plain-view exception

        State v. Carter, 342 Or 39, 147 P3d 1151 (2006). A warrant is not facially invalid merely because it
authorizes only a search, but not a seizure. The lack of a ―seizure‖ provision did not render the warrant a
general warrant. Because this warrant authorized the police to invade defendant‘s privacy by searching for
drugs and evidence, the separate invasion of the defendant‘s possessory interests by the seizure may be
analyzed by reference to the plain-view exception to the warrant requirement.
        See also State v. Brown, 203 Or App 616 (2006) (remanding for plain-view determination).
                                                                                                         71

        Search & seizure: exclusionary rule

         Hudson v. Michigan, 547 US __, 126 S Ct 2159, 165 L Ed 2d 56 (2006). State officers executing a
valid search warrant at defendant‘s residence entered immediately after knocking, and they discovered
evidence of crimes during the ensuing search. The state conceded that the officers failed to comply with the
Fourth Amendment‘s knock-and-announce rule, but the state court denied defendant‘s motion to suppress,
concluding that the evidence at issue was not the product of the violation. Held: Affirmed. [1] ―Our cases
show that but-for causality is only a necessary, not a sufficient, condition for suppression. [Here], the
constitutional violation of an illegal manner of entry was not a but-for cause of obtaining evidence‖ because
the officers would have found the evidence regardless of the violation. [2] ―What the knock-and-announce
rule has never protected, however, is one‘s interest in preventing the government from seeing or taking
evidence described in the warrant. Since the interests that were violated in this case have nothing to do with
the seizure of evidence, the exclusionary rule is inapplicable.‖ [3] ―In sum, the social costs of applying the
exclusionary rule to knock-and-announce violations are considerable; the incentive to such violations is
minimal to begin with, and the extant deterrences against them are substantial — incomparably greater than
the factors deterring warrantless entries when Mapp was decided. Resort to the massive remedy of
suppressing evidence of guilt is unjustified.‖

         State v. Makuch/Reisterer, 340 Or 658, 136 P3d 35 (2006). Officers executed a search warrant at an
attorney‘s office in Washington based on probable cause to believe that he was involved in a marijuana grow
operation. The attorney, who was present, gave defendants‘ first names in response to a reference by one of
the officers to his ―Oregon associates.‖ The officers searched the attorney‘s personal organizer, which
contained information that later was used to support a search warrant of defendant‘s business. Defendants
moved to suppress based on ORS 9.695, which generally provides that the files, papers, effects or work
premises or a lawyer ―shall not be subject to search or seizure by any law enforcement officer, either by
search warrant or otherwise.‖ It also provides for suppression of evidence seized in violation unless ―there is
probable cause to believe that the lawyer has committed, is committing or is about to commit a crime.‖ The
circuit court ordered suppression of the information found in the personal organizer, and the Court of
Appeals reversed. Held: Affirmed. Even if ORS 9.695 applies to a search in another state, suppression was
not required. An absolute exception exists if the officers have probable cause to believe that the lawyer has
committed any crime, even if it is unrelated to the basis for the search.

         State v. Crandall, 340 Or 645, 136 P3d 30 (2006). A police officer directed defendant to ―stop‖ and
―come here.‖ Defendant obeyed that direction but, before reaching the officer, placed a clear plastic baggie
containing drugs underneath a parked car. Another officer observed defendant‘s act and retrieved the baggie.
The trial court denied defendant‘s motion to suppress. The Court of Appeals reversed on the ground that the
stop was unlawful and the defendant had not ―abandoned‖ the baggie. Held: Reversed. [1] The officer‘s
retrieval and inspection of the baggie was lawful because ―defendant had no right to privacy in the baggie,
and the officers did not engage in a search when they discovered what any member of the public could have
seen — a baggie that appeared to contain a controlled substance lying under someone‘s car.‖ [2]The
unlawful stop was not the source of the evidence. Defendant‘s ―unilateral, voluntary decision to put the
baggie underneath the car‖ was an intervening act that ―sufficiently attenuated the discovery of the evidence
from the prior illegality,‖ and it was not the product of the stop (distinguishing State v. Morton, 326 Or 466
(1998), and State v. Hall, 339 Or 7 (2005)).

         State v. Johnson, 340 Or 319, 131 P3d 173 (2006). The possible invalidity of the first search
warrant for defendant‘s residence did not entitled him to suppression because the state established that the
evidence at issue inevitably would have been discovered and seized during execution of the second warrant,
which the officers would have and could have obtained had their first application been denied. Information
that was obtained during the first search and was included in the second affidavit was not necessary to
establish probable cause. ―[T]he inevitable-discovery doctrine is available in such circumstances, at least to
the extent that the state affirmatively shows [as it did here] not only that there was an independent basis for
72

obtaining a lawful warrant but that investigators would have sought a lawful warrant regardless of the
unlawful search.‖

         State v. Bentz, 211 Or App 129, ___ P3d ___ (2007). Officers arrived at an address in response to a
complaint that a man had entered an apartment with a gun. They saw the man in the doorway and secured the
gun, but became suspicious when another man got a ―scared‖ expression on his face and ran into the
apartment, despite one officer‘s command to stop. After five minutes, he and a woman finally came out;
they stated that only the woman‘s children were in the apartment. After a few minutes, the woman asked
whether she could get the children; one officer said yes, and then followed her into the apartment and found
defendant and another woman sitting in the living room. The officer asked defendant his name, and he gave
a false name; the officer believed he was lying and falsely told defendant that he was likely to be arrested.
Defendant gave his true name and stated that there was an outstanding warrant for his arrest. Before
confirming the warrant, the officer handcuffed defendant for the purpose of putting him in the patrol car, but
first inventoried his person pursuant to the city inventory ordinance and found a small bag of
methamphetamine in his pocket. The officer later confirmed the existence of the warrant. The trial court
denied defendant‘s motion to suppress, concluding that the entry into the apartment was unlawful, but that
the officer‘s request about defendant‘s identity was not ―exploitation‖ of any illegality. Held: [1] The trial
court incorrectly concluded that a request for a person‘s name, as opposed to a request for consent to a
search, cannot constitute ―exploitation‖ of an unlawful entry; ―exploitation‖ occurs if the officer‘s question
caused defendant to admit that he had a warrant. [2] The trial court‘s ruling could not be affirmed based on
the ―right for the wrong reason‖ doctrine. The entry was unlawful because: (a) it was not justified under the
emergency-aid exception because the circumstances did not give the officer reasonable grounds to believe
that there was a true emergency that required immediate action; and (b) it was not justified as a protective
sweep because no specific and articulable facts indicated that there could be persons present posing an
immediate threat of danger to the officers or others. Moreover, the existence of the outstanding warrant did
not attenuate the link between the illegality and the arrest, because the warrant could cure the illegal search
only if the arrest was lawful. The record was insufficient from which to conclude that the arrest was lawful
because it was possible that the warrant was issued in another state. Because, under ORS 133.310(2), the
officer was not authorized to arrest defendant on an out-of-state warrant except upon notice by an out-of-
state police officer, the record did not establish that the arrest was justified.

         State v. Campbell, 207 Or App 585, 142 P3d 517 (2006). A deputy sheriff saw defendant walking
along a highway, looking ―out of place,‖ and pulled behind him and parked, without turning on overhead
light. As the deputy approached, defendant pulled out his wallet and handed his ODL to the deputy. The
deputy then ran a records check and learned that defendant was ―clear.‖ He did not return the license, but
instead sought consent to pat defendant down for weapons. The trial court denied defendant‘s motion to
suppress drugs found on his person. Held: [1] Regardless of the nature of the encounter before the deputy
accepted the license and ran a records check, it became a stop under Art. I, § 9, at that point. [2] The stop
was not supported by reasonable suspicion. [3] Defendant‘s consent to the pat-down was the product of the
illegal detention, under State v. Hall, 339 Or 7 (2005). The mere fact that defendant voluntarily handed over
his license did not constitute consent to be searched; any attenuating influence of that voluntary act
dissipated once the deputy retained defendant‘s license and defendant was no longer free to leave.

        State v. Cochran, 206 Or App 686, 138 P3d 864 (2006). Officers contacted defendant and engaged
him in mere conversation, during which they asked him for identification and one officer conducted a
warrants check. He then asked for and obtained defendant‘s consent to search his person and to allow him to
handcuff him during the search. After specifically asking for consent to search a wallet on defendant‘s
person, the officer found a baggie of methamphetamine. The trial court denied defendant‘s motion to
suppress. Held: Reversed and remanded. [1] In light of State v. Hall, 339 Or 17 (2005), the officer
unlawfully stopped defendant when he obtained defendant‘s identification and ran a warrants check without
reasonable suspicion to believe that defendant had committed a crime. [2] The state failed to establish that
defendant‘s consent was not causally connected to the unlawful stop.
                                                                                                            73


        State v. Williams, 206 Or App 432, 136 P3d 1201 (2006). Defendant was stopped for a traffic
violation. He voluntarily provided identification, and a records check revealed that he had a history of drug
offenses. Without returning the identification, the officer asked defendant to move his vehicle so that he
could ask more questions (about drugs). In response to the questions, defendant produced a syringe with
drug residue on the needle; a search incident to arrest for PCS revealed more drugs in the car. The circuit
court denied defendant‘s motion to suppress. Held: Reversed. [1] Although the officer‘s conduct in merely
―changing the subject‖ of the conversation to something other than the traffic infraction did not itself exceed
the scope of the stop, the officer‘s questions and requests had the effect of extending the duration of the stop
and were not based on reasonable suspicion, and thus violated Article I, section 9. [2] Because defendant‘s
production of the syringe was the product of exploitation of the unlawful stop under State v. Hall,
suppression was required.

SENTENCING

        Sentencing: constitutional issues — right to jury, Apprendi

         Washington v. Recuenco, 548 US __, 126 S Ct 2546, 165 L Ed 2d 466 (2006). Based on an incident
in which he threatened his wife with a firearm, defendant was charged with second-degree assault ―with a
deadly weapon,‖ and the jury found him guilty. Although the jury was instructed that a firearm is a deadly
weapon, it did not find specifically that he used a firearm. Nonetheless, the sentencing court imposed an
enhanced sentence based on its finding that defendant used a firearm. Based on Apprendi and Blakely, which
were decided in the interim, the state supreme court vacated the sentence and remanded for resentencing
without that enhancement. Held: Reversed and remanded. [1] The ruling at issue was not based on an
adequate and independent state ground — it was based on a ruling that a Blakely is not subject to harmless-
error affirmance. [2] ―We have repeatedly recognized that the commission of constitutional error at trial
alone does not entitle a defendant to automatic reversal. Instead, most constitutional errors can be harmless.
If the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any
other constitutional errors that may have occurred are subject to harmless-error analysis. Only in rare cases
has this Court held that error is structural, and thus requires automatic reversal. In such cases, the error
necessarily renders a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or
innocence.‖ [3] The error here is indistinguishable from the one in Neder v. United States, 527 Or 1 (1999),
because under Blakely ―we have treated sentencing factors, like elements, as facts that have to be tried to the
jury and proved beyond a reasonable doubt.‖ Consequently, ―[f]ailure to submit a sentencing factor to the
jury, like failure to submit an element to the jury, is not structural error‖ and is subject to harmless-error
review.
         Note: The Court did not consider whether the state‘s failure, in any form, to allege ―with a firearm‖
precluded imposition of an enhanced sentence.

         State v. Tanner, 210 Or App 70, 150 P3d 31 (2006) (en banc). [1] The determination under
ORS 137.123(5)(a) whether the secondary offense was ―merely incidental‖ to the primary offense is a factual
finding, not a legal conclusion. [2] Blakely does not entitle a defendant to a jury trial on a fact that supports a
consecutive sentence under ORS 137.123(5).

         State v. McCollister, 210 Or App 1, 150 P3d 7 (2006). The sentencing court properly imposed the
―sex-offender package‖ per ORS 137.540(2) as a condition of probation on defendant‘s conviction for
harassment. It was not necessary for the court specifically to find, to impose that condition, that defendant
acted with a sexual purpose. Consequently, imposition of that condition did not depend on a specific finding
of fact, and hence defendant was not entitled to a jury finding under Blakely.

        State v. Moon, 207 Or App 402, 142 P3d 105, rev den 342 Or 46 (2006). Defendant‘s unpreserved
Harris-based objection to consideration of prior juvenile adjudication is not reviewable as ―plain error.‖
74

        See also State v. Murphy, 205 Or App 675, 135 P3d 357 (2006) (per curiam).

         State v. Buehler, 206 Or App 167, 136 P3d 64 (2006). The right-to-jury rule in Blakely applies to a
finding of an aggravating fact that is used as a basis for dispositional departure to a prison sentence, because
a presumptive probationary sentence is the statutory maximum in the absence of such a finding. A court‘s
authority under OAR 213-010-0001 to revoke a probationary sentence and impose a prison sentence is
―entirely contingent on the existence of facts that, by their nature, can occur only after the offender already
has been sentenced to probation.‖

         State v. Clark, 205 Or App 338, 134 P3d 1074, rev den 341 Or 245 (2006). The sentencing court‘s
entry of a no-release order per ORS 137.750 based on findings that it made did not violate the defendant‘s
right to jury under Blakely. ―The denial of consideration for such beneficial modifications to a sentence does
not increase the maximum penalty to which the defendant is exposed by the jury‘s verdict,‖ because ―[a]n
order permitting consideration for sentence modifications does not mean that the defendant inevitably will
receive the benefit of those programs.‖ ―[T]he rule in Apprendi is not implicated by facts that merely
foreclose a defendant from obtaining a lesser penalty within the range authorized by the verdict.‖

        Lutz v. Hill, 205 Or App 252, 134 P3d 1003, rev den 341 Or 140 (2006). ―Counsel‘s failure to
anticipate Apprendi or Blakely by objecting to the imposition of enhanced dangerous offender sentences or
upward departure sentences does not constitute constitutionally inadequate assistance of counsel.‖

        State v. Kaufman, 205 Or App 10, 132 P3d 668, rev den 340 Or 673 (2006). The Court of Appeals
refused to consider as plain error defendant‘s unpreserved claim that the sentencing court erred under Blakely
by imposing a sentence subject to ORS 137.635 based on its own finding that defendant had a predicate prior
conviction.

        Sentencing: constitutional issues — ex post facto

         State v. Vasquez-Escobar, 211 Or App 115, __ P3d __ (2007). Defendant pleaded guilty to a DUII
that he committed in 2003, and the sentencing court permanently revoked his driving privileges per ORS
809.235(1)(b) based on his two prior DUII convictions (1996, 1997). Defendant claimed that the revocation
constituted ex post facto punishment because he committed his current DUII conviction before January 1,
2004, the date the statute took effect. Held: Affirmed. Because the mandated revocation is remedial or
regulatory, it is not punishment with scope of either the state or federal ex post facto clause.

        Sentencing: constitutional issues — proportionality objections

        State v. Dobash, 210 Or App 145, 149 P3d 1235 (2006). Defendant contended that the 4-year
probationary sentence the court imposed on his conviction for second-degree theft is disproportionate
punishment in violation of Article I, section 16, because the presumptive sentence for first-degree theft
would have been only a 2-year probationary term. Held: Affirmed. There is no disproportionality because
the maximum permissible term for the greater offense is 5 years, OAR 213-005-0008(2). It is immaterial
that Blakely may require additional jury findings in order to impose that maximum term.

        Sentencing: constitutional issues — other

         State v. Mendez, __ Or App __, __ P3d __ (2007). The jury found defendant guilty of first-degree
criminal mischief, ORS 164.365, but found that the state failed to prove the offense-subcategory allegation
the damage was more than $1,000 (which would have elevated the conviction to a category 3 offense). The
sentencing court imposed $1,666 in restitution. Held: Affirmed. [1] Although Article VII (Am), section 3,
applies to criminal actions, the court‘s finding of damage in support of the restitution order was not an
improper ―reexamination‖ of a fact found by the jury. The court correctly ranked the conviction as only a
                                                                                                          75

category 2 offense based on the verdict. [2] The court‘s finding was not inconsistent with the verdict because
the court ―independently determined the amount of damage applying a different standard of proof‖ (i.e., only
to a preponderance) in assessing restitution. ―Just as a single trier of fact could, upon different standards of
proof, render different findings of the same fact without any inconsistency, the same is true of different triers
of fact apply different standards of proof.‖

         McDonald v. Belleque, 206 Or App 655, 138 P3d 392, rev den 341 Or 392 (2006). Petitioner filed a
petition for post-conviction relief, claiming that his attorney in 1997 should have objected to the sentencing
court‘s reliance on out-of-court statements that petitioner claims now would be considered ―testimonial‖
under Crawford v. Washington. The post-conviction court dismissed the petition as time-barred. Held:
Affirmed. Even if Crawford applies retroactively, petitioner‘s claim of sentencing-court error fails because
the Confrontation Clause does not apply at sentencing.

         Roy v. Palmateer, 205 Or App 1, 132 P3d 56 (2006). Although ORS 163.105(3) (1983) authorizes
the parole board to determine whether an inmate sentenced to life imprisonment on a conviction for
aggravated murder is ―likely to be rehabilitated within a reasonable period of time,‖ such a determination
does not entitle to immediate release on parole. Denial of release does not violate Article I, sections 13, 15,
16, or the 8th or 14th Amendments.

        Sentencing: crime-seriousness ranking

         State v. Mendez, __ Or App __, __ P3d __ (2007). The jury found defendant guilty of first-degree
criminal mischief, ORS 164.365, but found that the state failed to prove the offense-subcategory allegation
the damage was more than $1,000 (which would have elevated the conviction to a category 3 offense). The
sentencing court imposed $1,666 in restitution. Held: Affirmed. Although Article VII (Am), section 3,
applies to criminal actions, the court‘s finding of damage in support of the restitution order was not an
improper ―reexamination‖ of a fact found by the jury. The court correctly ranked the conviction as only a
category 2 offense based on the verdict. The court‘s finding was not inconsistent with the verdict because
the court ―independently determined the amount of damage applying a different standard of proof‖ (i.e., only
to a preponderance) in assessing restitution.

        Sentencing: criminal history
        See also ―Sentencing: statutory sentences — other prior-conviction offenses,‖ below.

        State v. Moon, 207 Or App 402, 142 P3d 105, rev den 342 Or 46 (2006). Defendant‘s unpreserved
Harris-based objection to consideration of prior juvenile adjudication is not reviewable as ―plain error.‖
        See also State v. Murphy, 205 Or App 675, 135 P3d 357 (2006) (per curiam).

        Sentencing: term of post-prison supervision

        State v. Deloache, 207 Or App 641, 142 P3d 74 (2006). The sentencing court committed plain error
when it imposed a 20-year term of post-prison supervision less time served, to follow a 90-month prison
term, on defendant‘s conviction for conspiracy to commit murder. Note: The correct term is only 36 months.

        State v. Vedder, 206 Or App 424, 136 P3d 128 (2006), rev den 342 Or 417 (2007). Defendant was
convicted of attempted aggravated murder and first-degree rape and sodomy. The sentencing court
designated the first as the primary offense and imposed a 120-month sentence with 36 months of post-prison
supervision. The court then imposed on each of the sexual-assault convictions a consecutive 100-month
sentence and, per ORS 144.103, a 20-year term of PPS, less time served. Held: Affirmed. Although
OAR 213-012-0020(4)(a) appears to require that the PPS term for the consecutive sentences is that term
prescribed for the ―primary offense,‖ the longer terms mandated by ORS 144.103 apply, because that is the
more recent and specific statute.
76


        State v. Stalder, 205 Or App 126, 133 P3d 920, rev den 340 Or 673 (2006). The sentencing court
erred under OAR 213-005-0002(4) and -0005 by imposing, on defendant‘s conviction for a class C felony, a
40-month sentence with a 24-month term of post-prison supervision with the provision that the period of
incarceration when added to the PPS term ―shall not exceed 60 months.‖

        Sentencing: probationary dispositions

        State v. Fults, 210 Or App 150, 149 P3d 1248 (2006). The sentencing court committed plain error
when it imposed a 36-month probationary term, instead of the presumptive 24-month term, on defendant‘s
MCS without citing a valid basis for an upward departure, even though defense counsel said he had ―no
objection‖ to that term. Defendant did not waive or invite the error.

         State v. McCollister, 210 Or App 1, 150 P3d 7 (2006). [1] The sentencing court properly imposed
the ―sex-offender package‖ per ORS 137.540(2) as a condition of probation on defendant‘s conviction for
harassment. It was not necessary for the court specifically to find, to impose that condition, that defendant
acted with a sexual purpose. [2] Because imposition of that condition did not depend on a specific finding of
fact, defendant was not entitled to a jury finding under Blakely.

         State v. Phillips, 206 Or App 90, 135 P3d 461, rev den 341 Or 548 (2006). [1] ―We review the trial
court‘s imposition of probation conditions for errors of law.‖ [2] The sentencing court properly imposed, as
a special probation condition under ORS 137.540(1)(m), that defendant complete sex-offender treatment.
Even though his convictions were not for sexual offenses, the court properly found that he acted with a
sexual purpose in committing them and that the conditions were reasonably related to protection of the public
and reformation.

        Sentencing: departures — aggravating factors
        See also ―Sentencing: constitutional issues — right to jury, Apprendi,‖ above.

        State v. Gortler, 207 Or App 321, 142 P3d 74 (2006). [1] The finding of persistent involvement in
similar offenses was not supported by the evidence because defendant was being sentenced for UUV, a
property crime, and his prior convictions were for traffic offenses. [2] Although the court could have found
persistent involvement based on defendant‘s three unrelated UUV convictions for which he also was being
sentenced, the prosecutor did not make that argument and the sentencing court did not rely on it at
sentencing. ―We will not substitute our own findings for those of the trial court.‖

        State v. Buehler, 206 Or App 167, 136 P3d 64 (2006). The right-to-jury rule in Blakely applies to a
finding of an aggravating fact that is used as a basis for dispositional departure to a prison sentence, because
a presumptive probationary sentence is the statutory maximum in the absence of such a finding.

        Sentencing: departures — mitigating factors

         State v. Rhoades, 210 Or App 280, 149 P3d 1259 (2006). Defendant‘s convictions for third-degree
rape and sodomy are subject to the presumptive life sentence per ORS 137.719(1) due to his prior
convictions for sexual offenses. The sentencing court departed downward, per ORS 137.719(2), and
imposed a 60-month sentence based on findings that the 15-year-old victim consented to the activity and that
the crimes involved the same victim in the same time period and general area. Held: Reversed and
remanded. [1] Appellate review is limited to whether findings are supported by the evidence and reasons
given constitute substantial and compelling reasons for departure. ―[W]e review the sentencing court‘s
explanation of why the circumstances are so exceptional that the imposition of the presumptive sentence
would not accomplish the purposes of the guidelines.‖ [2] Because the victim‘s consent is legally irrelevant
to the charges, her consent ―cannot transform her harm into one that is ‗less than typical‘ for those offenses.‖
                                                                                                            77

Thus, the court erred in relying on that mitigating factor (OAR 213-008-0002(2)(a)(G)). [3] Although the
―close in time and space‖ finding is not a mitigating factor set forth in the rule, those factors are
nonexclusive. The ―merger‖ rule in ORS 137.719(3) does not preclude consideration of that factor. ―[T]he
particular circumstances here may be considered mitigating circumstances in determining if there are
substantial and compelling reasons to depart from the presumptive life sentence.‖

        Sentencing: consecutive sentences

         State v. Tanner, 210 Or App 70, 150 P3d 31 (2006) (en banc). [1] The determination under
ORS 137.123(5)(a) whether the secondary offense was ―merely incidental‖ to the primary offense is a factual
finding, not a legal conclusion. [2] Blakely does not entitle a defendant to a jury trial on a fact that supports a
consecutive sentence under ORS 137.123(5).

         State v. Gordian, 209 Or App 600, 149 P3d 190 (2006) (per curiam). Defendant pleaded guilty to
three crimes that ―were alleged in the indictment to have occurred during separate criminal episodes,‖ and
the court imposed consecutive sentences. Because ―[u]nder ORS 137.123(2), a court is not required to make
findings to support the imposition of consecutive sentences‖ if the crimes were not committed ―in the same
criminal episode,‖ defendant‘s Blakely-based objection has no merit; ―the sentences in this case fall within
the exception enunciated in Blakely for sentences based on facts admitted by a defendant.‖

         State v. Anderson, 208 Or App 409, 145 P3d 245 (2006). The sentencing court lawfully imposed
consecutive sentence on defendant‘s convictions for robbery and assault of the same victim based on his act
of striking the victim in the course of taking of the property. The court could have inferred that defendant
was willing to both (1) cause physical injury to the victim (assault), and (2) use the mallet, or attempt to
cause serious physical injury with the mallet (robbery); the facts were sufficient to show his ―willingness to
commit more than one criminal offense‖ under ORS 137.123(5)(a).

        State v. Vedder, 206 Or App 424, 136 P3d 1128 (2006), rev den 342 Or 417 (2007). Defendant was
convicted of attempted aggravated murder and first-degree rape and sodomy. The sentencing court
designated the first as the primary offense and imposed a 120-month sentence with 36 months of post-prison
supervision. The court then imposed on each of the sexual-assault convictions a consecutive 100-month
sentence and, per ORS 144.103, a 20-year term of PPS, less time served. Held: Affirmed. Although
OAR 213-012-0020(4)(a) appears to require that the PPS term for the consecutive sentences is that term
prescribed for the ―primary offense,‖ the longer terms mandated by ORS 144.103 apply, because that is the
more recent and specific statute.

        Sentencing: statutory sentences — murder (ORS 163.115)

        State v. Bowen, 340 Or 487, 135 P23d 272 (2006). [1] The sentencing court ―should have entered
one judgment of conviction for the aggravated murder of the victim, which enumerated separately each
aggravating factor and imposed one sentence of death. Accordingly, we reverse the judgments of conviction
on counts one and two, vacate the sentences of death imposed on those convictions, and remand to the trial
court for entry of corrected judgments and resentencing.‖ [2] In addition, ―the court erred in not merging
defendant‘s conviction for intentional murder with his convictions for aggravated murder.‖
        See also State v. Tiner, 340 Or 551, 135 P3d 305 (2006) (sentencing court erred by entering a
separate conviction and sentence of death on the two counts of aggravated murder, and a separate conviction
and sentence for intentional murder, based on defendant‘s murder of the single victim).

        Sentencing: statutory sentences — dangerous offender (ORS 161.725)

        Gill v. Lampert, 205 Or App 90, 132 P3d 674 (2006). Petitioner was convicted in 1998 by jury
verdict of two counts of attempted first-degree assault for shooting at two police officers. The sentencing
78

court found him to be a dangerous offender based inter alia on its finding that he ―seriously endangered the
life or safety of another.‖ Petitioner later petitioned for post-conviction relief contending that his trial
counsel provided inadequate assistance by failing to object to the court‘s dangerous-offender finding based
on State v. Mitchell. The court denied his claim. Held: Reversed and remanded. [1] A counsel provides
inadequate assistance if he fails to object based on Mitchell when the court, rather than the jury, makes the
seriously-endangered finding. [2] The jury‘s verdict was not sufficient of itself to constitute the required
finding, because ―an attempted assault can occur without the offender seriously endangering the life or safety
of any person.‖ [3] Petitioner was prejudiced by his counsel‘s failure to object, because a reasonable jury
could have acquitted him on that fact.

        State v. Thomas, 204 Or App 109, 129 P3d 212, on recon 205 Or App 399, 134 P3d 1038, rev den
340 Or 673 (2006). The sentencing court committed plain error in light of Blakely when, after defendant was
convicted of the charges by jury verdict, it found that defendant is a dangerous offender and imposed an
enhanced sentences pursuant to ORS 161.725 et seq. (distinguishing State v. Heilman and State v. Gornick).

        Sentencing: statutory sentences — Denny Smith statute (ORS 137.635)

         Estes v. Dept. of Corrections, 210 Or App 399, 150 P3d 1088 (2007). Court of Appeals upheld the
validity of former OAR 291-100-110 (1993), which provides procedure for DOC to determine whether a
sentence is subject to release restrictions in ORS 137.635. Because the rule does not preclude a hearing if the
inmate requests one, petitioner‘s due-process challenge must await an application of the rule in a specific
case. The rule does not impermissibly vest DOC with a judicial function.

        State v. Kaufman, 205 Or App 10, 132 P3d 668, rev den 340 Or 673 (2006). The Court of Appeals
refused to consider as plain error defendant‘s unpreserved claim that the sentencing court erred under Blakely
by imposing a sentence subject to ORS 137.635 based on its own finding that defendant had a predicate prior
conviction.

        Sentencing: statutory sentences — firearm-minimum (ORS 161.610)

         State v. Jacob, 208 Or App 62, 145 P3d 212 (2006) (en banc). Defendant was convicted in 2002 of
first-degree robbery, and the state asked the court to impose the 30-year gun minimum sentence mandated
by ORS 161.610(4)(c) (2001), based on his two previous convictions that had resulted in gun-minimum
sentences in 1983 and 1991. Defendant objected, contending that his 1983 gun-minimum sentence was
unconstitutional under State v. Wedge, 293 Or 598 (1982), because the judge, not the jury, had made the
requisite finding that he had ―used or threatened to use a firearm‖ in the commission of the offense. The
sentencing court agreed, and imposed only a 10-year gun-minimum per ORS 161.610(4)(b). Held: Reversed
and remanded. The sentencing court erred in failing to impose the 30-year minimum term based on the 1983
conviction. ORS 161.610 does not permit a defendant to challenge the validity of a prior conviction that
establishes the basis for the enhanced sentence.

        State v. Howard, 205 Or App 408, 134 P3d 1042, rev den 341 Or 198 (2006). The Court of Appeals
declined to review defendant‘s unpreserved claim that the sentencing court committed plain error when it
found that he had a prior conviction for a firearm offense and imposed an enhanced firearm-minimum
sentence under ORS 161.610(4)(b) on that basis.

        Sentencing: statutory sentences — repeat property offenders (ORS 137.717)

        State v. Sauer, 205 Or App 428, 134 P3d 1050, rev den 341 Or 141 (2006). Defendant was
convicted of five counts of identity theft based on separate crimes he committed in October 2002. The court
rejected defendant‘s claim that it should apply the current version of ORS 137.717(1)(d), which requires four
predicate identity-theft convictions in order to impose the enhanced 13-month sentence, and it applied
                                                                                                         79

instead ORS 137.717(1)(d)(A) (2001), which required only one predicate identity-theft conviction. The
court imposed consecutive 13-month sentences on second through fifth convictions. Held: Affirmed.
Nothing in the 2003 amendment to the statute suggests that the legislature intended it to apply retroactively,
and the opening phrase in ORS 137.717(1) — ―When the court sentences a person …‖ — cannot be
construed to require the court to apply the version of the statute in force on the date of sentencing.

        Sentencing: statutory sentences — no-release orders (ORS 137.750)

        State v. Soto-Nunez, 211 Or App __, __ P3d __ (March 28, 2007). The Court of Appeals refused to
review defendant‘s unpreserved claim that the sentencing court erred when it entered a no-release order
without making findings on the record per ORS 137.750 to support that order: ―had defendant called that
shortcoming to the court‘s attention, it might easily have been remedied.‖

        State v. Eades, 208 Or App 173, 144 P3d 1003 (2006). In light of State v. Clark, 205 Or App 338
(2006), the sentencing court did not commit plain error under Blakely by making the findings on which it
ordered that defendant is ineligible for temporary leave and other forms of sentence modification under
ORS 137.750.

         State v. Clark, 205 Or App 338, 134 P3d 1074, rev den 341 Or 245 (2006). The sentencing court‘s
entry of a no-release order per ORS 137.750 based on findings that it made did not violate the defendant‘s
right to jury under Blakely. ―The denial of consideration for such beneficial modifications to a sentence does
not increase the maximum penalty to which the defendant is exposed by the jury‘s verdict,‖ because ―[a]n
order permitting consideration for sentence modifications does not mean that the defendant inevitably will
receive the benefit of those programs.‖ ―[T]he rule in Apprendi is not implicated by facts that merely
foreclose a defendant from obtaining a lesser penalty within the range authorized by the verdict.‖

        Sentencing: statutory sentences — three-strikes law (ORS 137.719)

         State v. Rhoades, 210 Or App 280, 149 P3d 1259 (2006). Defendant‘s convictions for third-degree
rape and sodomy are subject to the presumptive life sentence per ORS 137.719(1) due to his prior
convictions for sexual offenses. The sentencing court departed downward, per ORS 137.719(2), and
imposed a 60-month sentence based on findings that the 15-year-old victim consented to the activity and that
the crimes involved the same victim in the same time period and general area. Held: Reversed and
remanded. [1] Appellate review is limited to whether findings are supported by the evidence and reasons
given constitute substantial and compelling reasons for departure. ―[W]e review the sentencing court‘s
explanation of why the circumstances are so exceptional that the imposition of the presumptive sentence
would not accomplish the purposes of the guidelines.‖ [2] Because the victim‘s consent is legally irrelevant
to the charges, her consent ―cannot transform her harm into one that is ‗less than typical‘ for those offenses.‖
Thus, the court erred in relying on that mitigating factor (OAR 213-008-0002(2)(a)(G)). [3] Although the
―close in time and space‖ finding is not a mitigating factor set forth in the rule, those factors are
nonexclusive. The ―merger‖ rule in ORS 137.719(3) does not preclude consideration of that factor. ―[T]he
particular circumstances here may be considered mitigating circumstances in determining if there are
substantial and compelling reasons to depart from the presumptive life sentence.‖ [4] Because the court
erred in relying on the ―less than typical‖ factor and did not find that it would have so departed based only on
the ―close in time and space‖ factor, the proper remedy is to remand for resentencing.

        Sentencing: statutory sentences — other prior-conviction offenses

        Bailey v. Lampert, 342 Or 321, __ P3d __ (2007). Petitioner was convicted of felony offenses in
1995 and unsuccessfully challenged those convictions on appeal and in a post-conviction proceeding.
Meanwhile, and based on those convictions, he was convicted in 2000 of felon in possession of a firearm. In
2003, the Ninth Circuit vacated his felony convictions based on a Brady violation; the state elected not to
80

reprosecute him. He then filed a post-conviction proceeding contending that the vacation of his felony
convictions renders his FIP conviction void. Held: Relief denied. [1] Plain language of ORS 166.270
supports petitioner‘s FIP conviction — the only issue is whether defendant previously was convicted of a
felony at time he possessed the firearm. [2] By ORS 161.025(2), ―the legislature has eliminated the
availability of any ‗rule of lenity.‘‖ [3] For purpose of ORS 166.270, person‘s status as felon ―continues
unless and until the conviction is validated or the person brings himself within one of the statutory
exceptions.‖ [4] Petitioner‘s constitutionally based challenges have no merit: (a) in City of Pendleton v.
Standerfer, 297 Or 725 (1984), the defendant asserted his collateral challenge to the validity of the predicate
conviction within the same case, (b) the prior conviction in Standerfer was invalid based on denial of
counsel; and (c) petitioner‘s due-process challenge has no merit in light of Lewis v. United States, 445 US 55
(1980).

         State v. Clayton, 210 Or App 442, 150 P3d 1078 (2007). Given the prosecutor‘s failure, during
state‘s case in chief, to introduce defendant‘s prior stalking conviction, trial court erred in denying
defendant‘s motion for judgment of acquittal on charge of felony violation of a stalking protective order.
Note: Court of Appeals refused to consider state‘s cross-assignment of error challenging the trial court‘s
refusal to allow the prosecutor to reopen the state‘s case to introduce the prior conviction.

        State v. Eades, 208 Or App 173, 144 P3d 1003 (2006). Under State v. McCoin, 190 Or App 532
(2003), the sentencing court correctly counted defendant‘s prior DUIIs when calculating his criminal-history
score, even though those prior convictions were the basis of his conviction for felony DUII.

        Sentencing: merger

         State v. White, 341 Or 624, 147 P3d 313 (2006). Defendant‘s two convictions for first-degree
burglary based on separately alleged intents to commit assault and menacing merge because both were based
on a single entry and the same incident. The alternative theories of ―entering‖ and ―remaining‖ are not
separate statutory provisions under ORS 161.067(1). Because there was no evidence of repeated violations
of the burglary statute, ORS 161.067(3) did not authorize separate convictions.
         Note: The court affirmed without discussion the previous decision of the Court of Appeals in this
case on two other merger issues — 202 Or App 1, 121 P3d 3 (2005): [1] Defendant‘s two convictions for
first-degree kidnapping under ORS 163.235(1)(c) and (d) based on one continuing incident and one victim
merge under the analysis in State v. Barrett, because those are alternative means to prove a single crime, not
separate crimes, and the evidence did not establish that defendant committed that offense twice, separated by
a sufficient pause, within the meaning of ORS 161.067(3). [2] Defendant‘s three convictions for second- and
fourth-degree assault merge under the analysis in State v. Sanders, because they were based on a single
assault against a single victim and the trial court treated them all as lesser-included offenses of the principal
assault charge.

        State v. Tiner, 340 Or 551, 135 P3d 305 (2006). The sentencing court erred when it entered a
separate conviction and sentence of death on the two counts of aggravated murder, and a separate conviction
and sentence for intentional murder, based on defendant‘s murder of the single victim.

        State v. Bowen, 340 Or 487, 135 P23d 272 (2006). [1] The sentencing court ―should have entered
one judgment of conviction for the aggravated murder of the victim, which enumerated separately each
aggravating factor and imposed one sentence of death. Accordingly, we reverse the judgments of conviction
on counts one and two, vacate the sentences of death imposed on those convictions, and remand to the trial
court for entry of corrected judgments and resentencing.‖ [2] In addition, ―the court erred in not merging
defendant‘s conviction for intentional murder with his convictions for aggravated murder.‖

        State v. Turner, 211 Or App 96, __ P3d __ (2007) (per curiam): [1] In light of State v. Cox, the
sentencing court erred in failing to merge defendant‘s separate convictions for first-degree theft for stealing
                                                                                                        81

the property and then selling it to another. [2] ―[T]he proper remedy under the circumstances is to remand
the case for entry of a judgment reflecting the single conviction and enumerating the two alternative theories
of conviction.‖

         State v. Luers, 211 Or App 34, __ P3d __ (2007). [1] The sentencing court erred in not merging
defendant‘s three convictions for first-degree arson on alternative legal theories under ORS 164.325(1)(b)
based on a single incident. Similarly, the court erred by not merging defendant‘s two convictions for
attempted first-degree arson based on a second incident. The fact that the alternative theories involved
threats to different individuals does not preclude merger, because ―the victim of the crime of first-degree
arson as provided in ORS 164.325(1)(b) is the owner of the property,‖ not the individual who may have been
personally endangered. [2] The sentencing court correctly did not merge defendant‘s convictions for
unlawful possession of a destructive device (ORS 166.382) into his two convictions for unlawful
manufacture of a destructive device (ORS 166.384), because ―each offense requires proof of an element that
the other does not.‖ To prove manufacture, ―the state need not prove that, after assembling the device, the
person had possession of it in its completed form.‖

        State v. Cook, 210 Or App 353, 149 P3d 1288 (2006) (per curiam). In light of State v. Glaspey, the
sentencing court committed plain error when it entered separate convictions for felony assault in the fourth
degree that were based on one assault but three child witnesses.

         State v. Hylton, 210 Or App 104, 150 P3d 47 (2006) (per curiam), rev den 342 Or 473 (2007). In
light of State v. White, the sentencing court committed plain error when it failed to merge sua sponte
defendant‘s two convictions for first-degree kidnapping based on alternative theories, ORS 163.235(1)(c)
and (d).

        State v. Owen, 209 Or App 662, 149 P3d 299 (2006). [1] The sentencing court committed plain
error when it failed to merge sua sponte defendant‘s separate convictions for second-degree robbery based on
ORS 164.405(1)(a) (representing that he was armed) that he committed against a single victim. [2] But
defendant‘s unpreserved claim that the sentencing court erred in failing to merge sua sponte his separate
convictions for second-degree robbery based on ORS 164.405(1)(a) and (b) (aided by another) is not
reviewable as plain error.

        State v. Barnes, 209 Or App 332, 147 P3d 936 (2006). [1] Defendant‘s convictions for first-degree
sexual abuse, based on the victim‘s lack of capacity to consent, and third-degree sexual abuse, based on the
victim‘s lack of consent, should have merged. The offenses arose out of the same criminal episode and,
because proof that a victim was incapable of consent establishes lack of consent, each offense does not
contain an element that the other does not. [2] Defendant‘s conviction for harassment does not merge with
the sexual-abuse conviction because harassment requires proof of an intent to harass or annoy, and sexual
abuse requires sexual contact; hence, each crime has an element that the other does not.

        State v. Wood, 208 Or App 329, 144 P3d 1005 (2006) (per curiam). Convictions for both conspiracy
to commit theft and the completed theft that was the object of the conspiracy were impermissible under
ORS 161.485(3). Conspiracy conviction vacated; remand for resentencing.
        See also State v. Thomas, 208 Or App 492 (2006) (convictions for aggravated murder and
conspiracy to commit aggravated murder merge into single conviction for aggravated murder).

        State v. Hathaway, 207 Or App 716, 143 P3d 545, rev den 342 Or 254 (2006). [1] The sentencing
court committed plain error by failing to merge sua sponte defendant‘s convictions for first-degree burglary
and conspiracy to commit first-degree burglary based on the same course of conduct, as required by
ORS 161.485(3). [2] The court reviewed defendant‘s claim even though the error had no effect on the length
of defendant‘s imprisonment, and that it would cause pain to the victims and would give defendant an
opportunity to escape.
82


       State v. Lazaro-Martinez, 207 Or App 526, 142 P3d 120 (2006) (per curiam). In light of State v.
Glaspey, defendant‘s convictions for felony fourth-degree assault should have merged.
       See also State v. Schweiter, 208 Or App 337, 144 P3d 1006 (2006) (per curiam) (same)

        State v. Camarena-Velasco, 207 Or App 19, 139 P3d 979 (2006). Defendant signed a single release
agreement promising to appear at all court proceedings in two cases. His two convictions for failure to
appear at a single court appearance set on both cases should have merged because the offenses did not violate
separate statutory provisions under ORS 161.067(1). Following State v. Eastman, 112 Or App 256 (1992)
(gravamen of crime of failure to appear is the violation of a release agreement).

        State v. Yong, 206 Or App 522, 138 P3d 37, rev den 342 Or 117 (2006). Based on his single assault
on the victim, defendant was convicted of two counts of felony fourth-degree assault under
ORS 163.160(3)(a) and (c) (previously convicted of assaulting the same victim; committed in presence of
child). Held: Under State v. Barrett, the court erred by not merging those convictions — by enacting those
provisions, ―the legislature did not intend to create additional crimes but, instead, to more severely punish the
same conduct, if committed in a domestic situation, by making it a felony.‖

         State v. Nilsen, 205 Or App 50, 132 P3d 669 (2006) (per curiam). The sentencing court erred under
State v. Glaspey in entering two convictions for fourth-degree assault based on defendant‘s single assault of
victim in front of two children.

        Sentencing: miscellaneous — fines, restitution, costs, forfeiture

         State v. Mendez, 211 Or App __, __ P3d __ (March 14, 2007). The jury found defendant guilty of
first-degree criminal mischief, ORS 164.365, but found that the state failed to prove the offense-subcategory
allegation the damage was more than $1,000 (which would have elevated the conviction to a category 3
offense). The sentencing court imposed $1,666 in restitution. Held: Affirmed. Although Article VII (Am),
section 3, applies to criminal actions, the court‘s finding of damage in support of the restitution order was not
an improper ―reexamination‖ of a fact found by the jury. The court correctly ranked the conviction as only a
category 2 offense based on the verdict. The court‘s finding was not inconsistent with the verdict because
the court ―independently determined the amount of damage applying a different standard of proof‖ (i.e., only
to a preponderance) in assessing restitution.

        State v. Denham, 211 Or App 98, __ P3d __ (2007) (per curiam). The sentencing court erred in
imposing restitution, on defendant‘s conviction for unlawful entry into a motor vehicle, for damage done to
the vehicle‘s steering column, because defendant denied causing that damage and his plea did not admit
causing damage.

        State v. Styron, 210 Or App 458, 150 P3d 1071 (2007) (per curiam). The sentencing court erred in
imposing, on defendant‘s conviction for second-degree burglary, restitution of $500 for ―down time of
business,‖ because the evidence does not establish that ―victim suffered any pecuniary damages … as a result
of defendant‘s criminal activities.‖

        State v. Eades, 208 Or App 173, 144 P3d 1003 (2006). It was not plain error for the court to impose
both a prison sentence and a $2,000 fine on defendant‘s conviction for felony DUII, notwithstanding that
ORS 813.010(6)(c) establishes a minimum $2,000 fine ―if the person is not sentenced to a term of
imprisonment.‖ That is a minimum fine that must be imposed ―[i]n addition to any other sentence that may
be imposed,‖ and ORS 161.625 permits the imposition of a fine up to $100,000.

       State v. Renner, 207 Or App 528, 142 P3d 1078 (2006) (per curiam). Sentencing court erroneously
imposed portion of restitution for damages that did not result from the crime of conviction.
                                                                                                         83


         State v. Shank, 206 Or App 280, 136 P3d 101 (2006). A limited judgment entered in criminal action
requiring defendant, per ORS 151.487 to contribute $127 toward the cost of her court-appointed counsel is
appealable under ORS 19.205(5) as an order entered in a special statutory proceeding, and the appeal is not
subject to the $250 limit in ORS 19.205(4).

        Sentencing: miscellaneous — expunction orders

        State v. Soreng, 208 Or App 259, 145 P3d 195 (2006). The trial court erroneously refused to set
aside defendant‘s conviction for criminally negligent homicide, which was a class C felony at the time of the
conviction, on the ground that the legislature since had amended ORS 163.145 to provide that criminally
negligent homicide is now a Class B felony and thus is not subject to expunction under ORS 137.225(5)(a).
Although the legislature changed the classification of that offense for purposes of future prosecutions, it did
not provide that previously entered convictions for the class C felony of criminally negligent homicide are
not longer ineligible for expunction.

        State v. Johnson, 207 Or App 694, 143 P3d 249 (2006). The trial court erred in setting aside
defendant‘s conviction for DCS (cocaine) based on ORS 137.225(5)(c), which permits a court to set aside
convictions for crimes that were ―punishable as either a felony or a misdemeanor, in the discretion of the
court.‖ Although ORS 161.705 permits a court to treat certain DCS (marijuana) convictions as
misdemeanors, convictions for DCS (cocaine) can never be treated as misdemeanors.

        State v. Trujillo, 207 Or App 344, 142 P3d 85 (2006). The trial court erroneously set aside
defendant‘s convictions for assaulting a public safety officer and resisting arrest, both of which arose from
the same incident. Under ORS 137.225(6)(b), a person convicted of any other offense within the 10-year
period preceding the motion to set aside the conviction is ineligible for expunction, even if the multiple
convictions arose from the same criminal episode.

        State v. Blas-Fernandez, 205 Or App 563, 135 P3d 330 (2006) (per curiam). The trial court erred
when it granted defendant‘s motions under ORS 137.225(1)(b) to set aside her records of arrest, because she
was arrested in two separate incidents within three years preceding her motion and ORS 137.225(7)
precludes a set-aside order in that circumstance.

        Sentencing: appeals — appealability

         State v. Shank, 206 Or App 280, 136 P3d 101 (2006). [1] A limited judgment entered in criminal
action requiring defendant, per ORS 151.487 to contribute $127 toward the cost of her court-appointed
counsel is appealable under ORS 19.205(5) as an order entered in a special statutory proceeding. [2] The
appeal is not subject to the $250 limit in ORS 19.205(4). [3] But the public defender does not have authority
to represent the defendant in such an appeal.

        Sentencing: appeals — scope of review

        State v. Rhoades, 210 Or App 280, 149 P3d 1259 (2006). Defendant‘s convictions for third-degree
rape and sodomy are subject to the presumptive life sentence per ORS 137.719 because of prior convictions
for similar sexual offenses. The sentencing court departed downward to a 60-month sentence based on
findings that the 15-year-old victim consented to the activity and that the crimes involved the same victim in
the same time period and general area. Held: Reversed and remanded. Appellate review is limited to
whether findings are supported by the evidence and reasons given constitute substantial and compelling
reasons for departure. ―[W]e review the sentencing court‘s explanation of why the circumstances are so
exceptional that the imposition of the presumptive sentence would not accomplish the purposes of the
guidelines.‖
84


        Sentencing: appeals — reviewability, ―plain error‖ review

        State v. Bowen, 340 Or 487, 135 P23d 272 (2006). [1] The sentencing court ―should have entered
one judgment of conviction for the aggravated murder of the victim, which enumerated separately each
aggravating factor and imposed one sentence of death. Accordingly, we reverse the judgments of conviction
on counts one and two, vacate the sentences of death imposed on those convictions, and remand to the trial
court for entry of corrected judgments and resentencing.‖ [2] In addition, the court committed plain error in
not merging defendant‘s conviction for intentional murder with his convictions for aggravated murder.‖
        See also State v. Tiner, 340 Or 551, 135 P3d 305 (2006) (sentencing court committed plain error
when it entered a separate conviction and sentence of death on the two counts of aggravated murder, and a
separate conviction and sentence for intentional murder, based on defendant‘s murder of the single victim).

        State v. Soto-Nunez, 211 Or App __, __ P3d __ (March 28, 2007). The Court of Appeals refused to
review defendant‘s unpreserved claim that the sentencing court erred when it entered a no-release order
without making findings on the record per ORS 137.750 to support that order: ―had defendant called that
shortcoming to the court‘s attention, it might easily have been remedied.‖

        State v. Owen, 209 Or App 662, 149 P3d 299 (2006). [1] The sentencing court committed plain
error when it failed to merge sua sponte defendant‘s separate convictions for second-degree robbery based on
ORS 164.405(1)(a) (representing that he was armed) that he committed against a single victim. [2] But
defendant‘s unpreserved claim that the sentencing court erred in failing to merge sua sponte his separate
convictions for second-degree robbery based on ORS 164.405(1)(a) and (b) (aided by another) is not
reviewable as plain error.

         State v. Eades, 208 Or App 173, 144 P3d 1003 (2006). [1] It was not plain error for the court to
impose both a prison sentence and a $2,000 fine, notwithstanding that ORS 813.010(6)(c) establishes a
minimum $2,000 fine ―if the person is not sentenced to a term of imprisonment.‖ That statute refers to a
minimum fine that must be imposed ―[i]n addition to any other sentence that may be imposed,‖ and
ORS 161.625 permits the imposition of a fine up to $100,000. [2] The sentencing court did not commit plain
error by finding defendant to be ineligible for temporary leave and other forms of sentence modification
under ORS 137.750; following State v. Clark, 205 Or App 338 (2006) (denial of ORS 137.750 credits is not
subject to Blakely).

        State v. Hathaway, 207 Or App 716, 143 P3d 545, rev den 342 Or 254 (2006). The sentencing court
committed plain error by failing to merge sua sponte defendant‘s convictions for first-degree burglary and
conspiracy to commit first-degree burglary based on the same course of conduct, as required by
ORS 161.485(3). The court reviewed defendant‘s claim even though the error had no effect on the length of
defendant‘s imprisonment, and that it would cause pain to the victims and would give defendant an
opportunity to escape.

        State v. Deloache, 207 Or App 641, 142 P3d 74 (2006). The sentencing court committed plain error
when it imposed a 20-year term of post-prison supervision less time served, to follow a 90-month prison
term, on defendant‘s conviction for conspiracy to commit murder. Note: The correct term is only 36 months.

         State v. Moon, 207 Or App 402, 142 P3d 105 (2006). [1] In light of State v. Gornick, imposition of
departure sentence based on facts not found by a jury was not plain error. [2] Because record did not
demonstrate the basis for the court‘s calculation of defendant‘s criminal-history score, defendant failed to
establish that the court committed error on the face of the record under ORAP 5.45(1).

          State v. Ramirez, 207 Or App 1, 139 P3d 981 (2006), rev allowed 342 Or 256 (2007). After a jury
trial, defendant was convicted of inter alia first-degree assault, and the sentencing court made findings of
                                                                                                        85

aggravating facts and imposed an upward-departure sentence; defendant did not request a jury or object to
the departure. Held: Reversed and remanded for resentencing. Notwithstanding State v. Gornick, the
departure here was plain error because defendant never waived jury.
        See also State v. Tarkington, 205 Or App 473, 134 P3d 104 (2006); State v. Ross, 205 Or App 477,
134 P3d 1106 (2006).

        State v. Phillips, 206 Or App 90, 135 P3d 461, rev den 341 Or 548 (2006). The Court of Appeals
declined to review as plain error defendant‘s unpreserved Blakely-based challenge to a dispositional
departure on his conviction for DCS to a minor based on the court‘s finding of ―multiple incidents,‖ because
defendant had admitted in his own trial testimony that he had committed the offense at issue ―probably ten
times‖ with the victim.

        State v. Steele, 205 Or App 469, 134 P3d 1054 (2006). [1] The sentencing court committed plain
error when, after defendant was convicted of first-degree burglary by jury verdict, it found the ―persistent
involvement‖ and ―on supervision‖ aggravating facts and imposed an upward-departure sentence.
(Distinguishing State v. Gornick.) [2] Defendant‘s admission during trial of his prior convictions and that he
had been on supervision ―his entire life‖ did not obviate the need for a jury verdict on those facts.

        State v. Howard, 205 Or App 408, 134 P3d 1042, rev den 341 Or 198 (2006). The Court of Appeals
declined to review defendant‘s unpreserved claim that the sentencing court committed plain error when it
found that he had a prior conviction for a firearm offense and imposed an enhanced firearm-minimum
sentence under ORS 161.610(4)(b) on that basis.

        State v. Thomas, 204 Or App 109, 129 P3d 212, on recon 205 Or App 399, 134 P3d 1038, rev den
340 Or 673 (2006). The sentencing court committed plain error in light of Blakely when, after defendant was
convicted of the charges by jury verdict, it found that defendant is a dangerous offender and imposed an
enhanced sentences pursuant to ORS 161.725 et seq. (distinguishing State v. Heilman and State v. Gornick).

        State v. Kaufman, 205 Or App 10, 132 P3d 668, rev den 340 Or 673 (2006). The Court of Appeals
refused to consider as plain error defendant‘s unpreserved claim that the sentencing court erred under Blakely
by imposing a sentence subject to ORS 137.635 based on its own finding that defendant had a predicate prior
conviction.

        Sentencing: appeals — claims of error that may be moot, harmless, or waived

         Washington v. Recuenco, __ US __, 126 S Ct 2546, 165 L Ed 2d 466 (2006). Based on an incident
in which he threatened his wife with a firearm, defendant was charged with second-degree assault ―with a
deadly weapon,‖ and the jury found him guilty. Although the jury was instructed that a firearm is a deadly
weapon, it did not find specifically that he used a firearm. Nonetheless, the sentencing court imposed an
enhanced sentence based on its finding that defendant used a firearm. Based on Apprendi and Blakely, which
were decided in the interim, the state supreme court vacated the sentence and remanded for resentencing
without that enhancement. Held: Reversed and remanded. ―We have repeatedly recognized that the
commission of constitutional error at trial alone does not entitle a defendant to automatic reversal. Instead,
most constitutional errors can be harmless. If the defendant had counsel and was tried by an impartial
adjudicator, there is a strong presumption that any other constitutional errors that may have occurred are
subject to harmless-error analysis. Only in rare cases has this Court held that error is structural, and thus
requires automatic reversal. In such cases, the error necessarily renders a criminal trial fundamentally unfair
or an unreliable vehicle for determining guilt or innocence.‖ The error here is indistinguishable from the one
in Neder v. United States, 527 Or 1 (1999), because under Blakely ―we have treated sentencing factors, like
elements, as facts that have to be tried to the jury and proved beyond a reasonable doubt.‖ Consequently,
―[f]ailure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not
structural error‖ and is subject to harmless-error review.
86

        Note: The Court did not consider whether the state‘s failure, in any form, to allege ―with a firearm‖
precluded imposition of an enhanced sentence.

       State v. Balogh, 209 Or App 162, 146 P3d 335 (2006). The sentencing court‘s entry of an amended
judgment to correct error rendered moot defendant‘s appeal from the original judgment.

        State v. Gallegos, 208 Or App 488, 145 P3d 255 (2006). Remand based on Barrett; resentencing is
required under ORS 138.222(5) even though the court would have the authority to impose the same sentence
on remand.

        State v. Gortler, 207 Or App 321, 142 P3d 74 (2006). Even though defendant stipulated to a
13-month sentence on a UUV conviction in one case, his Blakely-based challenge to a concurrent 12-month
departure sentence imposed on a UUV conviction in a second case is not harmless because the court imposed
sentences in the second case that defendant must serve consecutively to the 12-month sentence.

        Sentencing: appeals — remand for resentencing, entry of a corrected judgment

        State v. Bowen, 340 Or 487, 135 P23d 272 (2006). [1] The sentencing court ―should have entered
one judgment of conviction for the aggravated murder of the victim, which enumerated separately each
aggravating factor and imposed one sentence of death. Accordingly, we reverse the judgments of conviction
on counts one and two, vacate the sentences of death imposed on those convictions, and remand to the trial
court for entry of corrected judgments and resentencing.‖ [2] In addition, the court committed plain error in
not merging defendant‘s conviction for intentional murder with his convictions for aggravated murder.‖
        See also State v. Tiner, 340 Or 551, 135 P3d 305 (2006) (sentencing court committed plain error
when it entered a separate conviction and sentence of death on the two counts of aggravated murder, and a
separate conviction and sentence for intentional murder, based on defendant‘s murder of the single victim;
remand for entry of corrected judgment and resentencing).

        State v. Turner, 211 Or App 96, __ P3d __ (2007) (per curiam): [1] In light of State v. Cox, the
sentencing court erred in failing to merge defendant‘s separate convictions for first-degree theft for stealing
the property and then selling it to another. [2] ―[T]he proper remedy under the circumstances is to remand
the case for entry of a judgment reflecting the single conviction and enumerating the two alternative theories
of conviction.‖

        State v. Luers, 211 Or App 34, __ P3d __ (2007). The Court of Appeals remanded for resentencing
on the ground that the sentencing court erred in not merging defendant‘s three convictions for first-degree
arson. The court declined to consider defendant‘s various challenges to departure sentences and his Blakely
and proportionality objections, because those issues may be resolved on remand.

         State v. Rhoades, 210 Or App 280, 149 P3d 1259 (2006). Defendant‘s convictions for third-degree
rape and sodomy are subject to the presumptive life sentence per ORS 137.719 because of prior convictions
for similar sexual offenses. The sentencing court departed downward to a 60-month sentence based on
findings that the 15-year-old victim consented to the activity and that the crimes involved the same victim in
the same time period and general area. Held: Reversed and remanded. Because the court erred in relying on
the ―less than typical‖ factor and did not find that it would have so departed based only on the proper ―close
in time and space‖ factor, the proper remedy is to remand for resentencing.

        Sentencing: appeals — proceedings on remand

        State v. Curry, 209 Or App 31, 146 Or App 348 (2006). After a remand for resentencing to correct a
particular error based on the defendant‘s successful collateral challenge to the sentence, the sentencing court
has authority to correct only the error that required the resentencing. Thus, because the federal district court
                                                                                                        87

granted habeas corpus relief requiring resentencing based on a corrected criminal-history score, the
sentencing court correctly refused to consider new mitigating evidence that defendant offered for the purpose
of attempting to convince the court not to reimpose the departure sentences that it originally imposed.

        State v. Gallegos, 208 Or App 488, 145 P3d 255 (2006). Remand based on Barrett; resentencing is
required under ORS 138.222(5) even though the court would have the authority to impose the same sentence
on remand.

        Sentencing: challenges to sentences on collateral review — post-conviction

        Bailey v. Lampert, 342 Or 321, __ P3d __ (2007). Petitioner was convicted of felony offenses in
1995 and unsuccessfully challenged those convictions on appeal and in a post-conviction proceeding.
Meanwhile, and based on those convictions, he was convicted in 2000 of felon in possession of a firearm. In
2003, the Ninth Circuit vacated his felony convictions based on a Brady violation; the state elected not to
reprosecute him. He then filed a post-conviction proceeding contending that the vacation of his felony
convictions renders his FIP conviction void. Held: Relief denied. [1] Plain language of ORS 166.270
supports petitioner‘s FIP conviction — the only issue is whether defendant previously was convicted of a
felony at time he possessed the firearm. [2] By ORS 161.025(2), ―the legislature has eliminated the
availability of any ‗rule of lenity.‘‖ [3] For purpose of ORS 166.270, person‘s status as felon ―continues
unless and until the conviction is validated or the person brings himself within one of the statutory
exceptions.‖ [4] Petitioner‘s constitutionally based challenges have no merit: (a) in City of Pendleton v.
Standerfer, 297 Or 725 (1984), the defendant asserted his collateral challenge to the validity of the predicate
conviction within the same case, (b) the prior conviction in Standerfer was invalid based on denial of
counsel; and (c) petitioner‘s due-process challenge has no merit in light of Lewis v. United States, 445 US 55
(1980).

        Hinton v. Hill, 342 Or 222, 149 P3d 1205 (2006). Petitioner was advised incorrectly that the
maximum possible sentence was only 226 months, she pleaded guilty on that basis, and the court then
imposed a 366-month sentence. Based on the misadvice, the post-conviction court vacated the judgment and
remanded either for resentencing within a 226-month maximum or to vacate petitioner‘s guilty pleas. Held:
Affirmed. The post-conviction court was not required to vacate the convictions; rather, the post-conviction
court had authority under ORS 138.520 to allow resentencing within the range of which petitioner had been
advised, because that disposition is sufficient to remedy the actual prejudice that petitioner suffered.

         Gonzalez v. State of Oregon, 340 Or 452, 134 P3d 955 (2006). Petitioner, a Mexican national,
pleaded guilty to PCS and DCS. His counsel advised him that the convictions ―may cause‖ his deportation
and exclusion; petitioner did not ask for advice regarding the specific likelihood of deportation, and counsel
did not offer such advice. When INS commenced deportation proceeding, petitioner sought post-conviction
relief to vacate his convictions. Held: Counsel did not provide constitutionally inadequate assistance by not
advising petitioner regarding the specific likelihood of deportation. The Oregon Constitution does not
require counsel ―to attempt to specify the likelihood that the trial court might impose the maximum sentence
or the minimum sentence. If the constitution does not require that level of specificity concerning the direct
consequences of a criminal conviction, we see no constitutional warrant for requiring that level of specificity
concerning a collateral consequence of a conviction.‖

        Snodgrass v. Lampert, 210 Or App 390, 150 P3d 1109 (2007). The post-conviction court correctly
denied petitioner‘s claim that his trial counsel provided inadequate assistance by failing to object to the
consecutive sentences on the ground that he had committed all the offenses during a single criminal episode.
When counsel requested concurrent sentences, the sentencing court, to justify consecutive terms, made
extensive comments that ―objectively fall within the scope of ORS 137.123(5)(b).‖ Hence, counsel ―could
have reasonably concluded that it would be futile to raise an objection.‖ Moreover, petitioner failed to prove
prejudice because ―it is more probable that the trial court would have re-couched its findings in terms of ORS
88

137.123(5)(b), had such an objection been made.‖

         McDonald v. Belleque, 206 Or App 655, 138 P3d 392, rev den 341 Or 392 (2006). Petitioner filed a
petition for post-conviction relief, claiming that his attorney in 1997 should have objected to the sentencing
court‘s reliance on out-of-court statements that petitioner claims now would be considered ―testimonial‖
under Crawford v. Washington. The post-conviction court dismissed the petition as time-barred. Held:
Affirmed. Even if Crawford applies retroactively to cases on collateral review (and if ―retroactivity‖
overrides the statute of limitations), petitioner‘s claim of sentencing-court error fails because the
Confrontation Clause does not apply at sentencing.

        Lutz v. Hill, 205 Or App 252, 134 P3d 1003, rev den 341 Or 140 (2006) (same; ―Counsel‘s failure to
anticipate Apprendi or Blakely by objecting to the imposition of enhanced dangerous offender sentences or
upward departure sentences does not constitute constitutionally inadequate assistance of counsel.‖).

         Gill v. Lampert, 205 Or App 90, 132 P3d 674 (2006). Petitioner was convicted in 1998 by jury
verdict of two counts of attempted first-degree assault for shooting at two police officers. The sentencing
court found him to be a dangerous offender based inter alia on its finding that he ―seriously endangered the
life or safety of another.‖ Petitioner later petitioned for post-conviction relief contending that his trial
counsel provided inadequate assistance by failing to object to the court‘s dangerous-offender finding based
on State v. Mitchell. The court denied his claim. Held: Reversed and remanded. [1] A counsel provides
inadequate assistance if he fails to object based on Mitchell when the court, rather than the jury, makes the
seriously-endangered finding. [2] The jury‘s verdict was not sufficient of itself to constitute the required
finding, because ―an attempted assault can occur without the offender seriously endangering the life or safety
of any person.‖ [3] Petitioner was prejudiced by his counsel‘s failure to object, because a reasonable jury
could have acquitted him on that fact.

SEXUAL OFFENSES

        State v. Barnes, 209 Or App 332, 147 P3d 936 (2006), rev den 342 Or 256 (2007). [1] Defendant‘s
convictions for first-degree sexual abuse, based on the victim‘s lack of capacity to consent, and third-degree
sexual abuse, based on the victim‘s lack of consent, should have merged. The offenses arose out of the same
criminal episode and, because proof that a victim was incapable of consent establishes lack of consent, each
offense does not contain an element that the other does not. [2] Defendant‘s conviction for harassment does
not merge with the sexual-abuse conviction because harassment requires proof of an intent to harass or
annoy, and sexual abuse requires sexual contact; hence, each crime has an element that the other does not.

         State v. Ketchum, 206 Or App 635, 138 P3d 860, rev den 341 Or 450 (2006). Defendant was
convicted of first-degree sexual abuse and first-degree unlawful sexual penetration based on crimes
committed against his 4-year-old stepdaughter. He claimed that he had touched and penetrated the child‘s
vagina because her mother had asked him to apply ointment to a rash (which she denied). Defendant
requested an instruction based on the defense in ORS 163.412(1) that the penetration was ―part of a
medically recognized treatment or diagnostic procedure.‖ The trial court refused the instruction on the
ground that the defense applies only to medical personnel. The jury convicted on both the sexual-abuse and
penetration charges. Held: Reversed and remanded for a new trial. [1] The statutory defense for medical
treatment or diagnostic procedures applies to anyone giving medical treatment. [2] Because there was some
evidence (i.e., defendant‘s testimony that he was treating a rash) to support the instruction, the trial court
erred in refusing to give it. [3] The jury‘s guilty verdict on the sexual-abuse charges — which necessarily
included a finding beyond a reasonable doubt that he had touched the victim with an intent to sexually arouse
— was not sufficient to establish that the instructional error was harmless. Had the jurors been properly
instructed that the state had the burden to disprove the medical excuse, they may also have developed a
reasonable doubt as to whether defendant had a sexual purpose in touching the child. [4] Because the
charges were so ―intertwined,‖ the instructional error as the defense to the penetration charge may have
                                                                                                         89

affected the sexual-abuse conviction as well and requires reversal of that conviction, too.

         State v. Oddo, 205 Or App 588, 135 P3d 344 (2006). Defendant was indicted for first-degree rape
under ORS 163.375(1)(d) for having sexual intercourse with the victim, who allegedly was ―incapable of
consent by reason of mental incapacitation‖; the indictment did not charge under the alternative theory that
the victim was incapable of consent by reason of mental defect. The evidence at trial was that the victim was
mentally retarded, and defendant argued that that evidence could not support a conviction on an
―incapacitation‖ theory. Held: Reversed. Proof of mental incapacitation requires proof that the victim has
been ―rendered incapable‖ of consenting ―because of the influence of a controlled or other intoxicating
substance administered to the person without the consent of the person or because of any other act committed
upon the person without the consent of the person.‖ Because there was no evidence that defendant
administered intoxicants or committed any act upon the victim that rendered her incapable of consenting, the
evidence was insufficient.
         Note: The state should have charged this crime under the theory that the victim was incapable of
consenting by reason of mental defect.

SHACKLING

         State v. Bowen, 340 Or 487, 135 P3d 272 (2006). Defendant, who was charged with aggravated
murder, did not object to being forced to wear a ―stun belt‖ during trial, but he argued on appeal that that was
plain error, relying on earlier decisions that had held that forcing a defendant to appear before a jury in
shackles was inherently prejudicial to the defendant. Held: Affirmed. Because the stun belt was not visible
to the jurors, the cases finding jury bias from leg shackling were not applicable, and defendant failed to make
a record that wearing a stun belt may have affected his ability to assist in his defense. Consequently, the
court did not find plain error.

SPEEDY TRIAL

         Zedner v. United States, 547 US __, 126 S Ct 1976, 164 L Ed 2d 749 (2006). At a pretrial hearing
in a federal-court prosecution, the defendant executed, at the trial court‘s suggestion, a ―for all time‖ waiver
of the federal speedy-trial act, 18 USC § 3161(c)(1). He was convicted at a trial held six years later.
Held: Reversed. [1] Defendant‘s waiver was ineffective because a defendant may not prospectively waive
the provisions of the Act. [2] Defendant‘s execution of the legally ineffective waiver did not estop him from
moving for dismissal under the Act. [3] Because the Act specifically requires the court to make an ―ends of
justice‖ finding at the time of a set over, which the court did not do in this case, the judgment cannot be
affirmed on the basis of harmless error.

         State v. Tiner, 340 Or 551, 135 P3d 305 (2006). Defendant argued that pretrial delay of four years,
three of which were the result of the state pursuing an appeal from a pretrial order suppressing a
codefendant‘s statements and then dismissing its appeal, violated his constitutional speedy-trial rights.
Held: Affirmed. [1] Although the state offered little justification for the delay — it should have known that
its appeal was unlikely to succeed, particularly where the state offered the codefendant‘s statements as an ―all
or nothing‖ proposition, and some of the statements clearly were inadmissible — defendant failed to
establish significant prejudice from the delay, so defendant was not entitled to a dismissal on speedy-trial
grounds under Article I, section 10, of the Oregon Constitution. [2] ―We also reject defendant‘s argument
that the state violated his right to a speedy trial under the Sixth Amendment,‖ because ―a federal claim
requires proof of one more factor, namely, that defendant asserted his right to a speedy trial,‖ and ―defendant
did not assert his right to a speedy trial in a timely fashion.‖

          State v. Greenlick, 210 Or App 662, ___ P3d ___ (2007). ORS 135.747, the statutory speedy-trial
provision, applies to violation proceedings. A delay of 15 months between the issuance of the citation and
the trial was unreasonable, in the absence of any other circumstances.
90


          State v. Ayers, 203 Or App 683, 126 P3d 1241 (2006), on recon 207 Or App 668, 145 P3d 277, rev
den 342 P3d 253 (2006). 55-month delay while defendant was in custody in Washington; although Oregon
lodged a detainer, Washington authorities failed to inform defendant of the detainer and thereby deprived
him of the opportunity to demand trial pursuant to the IAD. [1] Defendant‘s claims based on Art. I, § 10, and
the 6th Amend. fail, because the 55-month delay attributable to the state was not ―manifestly excessive‖ and
was not ―purposely caused by the government to hamper the defense‖ and she failed to prove prejudice. [2]
ORS 135.747 applies to defendants incarcerated in other jurisdictions. [3] To prove a waiver of the statutory
right to a speedy trial, the state has the burden of proving that the defendant who was incarcerated in another
jurisdiction was apprised of his or her rights under the IAD and knowingly failed to demand trial pursuant to
Article III(a). [4] Although negligence by prison officials in processing IAD requests does not require
dismissal under the IAD, it is a factor that is outside the defendant‘s control and thus must be considered as
part of the total delay under ORS 135.747. [5] Here, defendant caused or consented to slightly more than
two years out of a total delay of 6½ years; the remainder was attributable to the state. That delay was
reasonable because, when Oregon lodged a detainer, it was entitled to assume that Washington had carried
out its statutorily mandated duties to inform defendant of the detainer and her right to insist on resolution of
the Oregon charges. Although Oregon, even without defendant‘s request, had the power to invoke Art. IV of
the IAD to require defendant‘s return, it was not required to do so; rather, Oregon reasonably could have
concluded that defendant, who previously had absconded and fought extradition, had voluntarily elected not
to invoke her rights under the IAD and thus waived her right to a speedy trial under ORS 135.747.

        State v. Garcia/Jackson, 207 Or App 438, 142 P3d 501 (2006). A 14-month delay in a
misdemeanor trial without consent of one defendant was reasonable; however, because his co-defendant did
not consent to some of the continuances requested by the first defendant, the total delay in co-defendant‘s
case was 22 months: dismissal was required by ORS 135.747. [1] The first co-defendant was responsible for
328 days of 748-day delay of misdemeanor trial; the additional 14-month delay that was attributable to
docket congestion and one prosecution setover was not unreasonable on its face, and thus did not require
evaluation of entire 748-day period. [2] However, the other co-defendant did not ―consent‖ to the setovers
requested by other defendant merely by failing to object, and was not responsible for co-defendant‘s
setovers. Because the 22-month delay without his consent was close to statute of limitations and thus it was
necessary to look at entire delay; 748 days was unreasonable under ORS 135.747.

         State v. Siegel, 206 Or App 461, 136 P3d 1214 (2006). Based on an 18-month delay in bringing his
DUII charge to trial, defendant filed a motion to dismiss based on ORS 135.747, Article I, section 10, and the
Sixth Amendment. The circuit court rejected the statutory argument and dismissed the case with prejudice
based only on Article I, section 10, and the state appealed. Held: Reversed. The reasons for the delay and
any prejudice did not justify dismissal. [1] Although the state was responsible for more than 16 months of
the delay (due to the prosecutor‘s mistakes in subpoenaing defendant‘s medical blood-draw results and in
failure to obtain necessary foundational witnesses, and due to lack of available court resources), the state did
not act in bad faith, engaged in no purposely dilatory conduct, and its ―inefficient practices‖ and negligence
do not weigh heavily against the state. Although the delay was ―substantially greater than average,‖ it ―was
not shockingly long or manifestly excessive.‖ [2] Because he was not incarcerated, defendant‘s stress,
inconvenience, and anxiety are of the type associated with any criminal prosecution and thus did not
constitute ―prejudice‖ that required dismissal.

        State v. Allen, 205 Or App 219, 134 P3d 976 (2006). Defendant moved for a dismissal of his DUII
charge complaining that the delay of almost 19 months deprived him of a speedy trial under ORS 135.747.
The court denied that motion and found him guilty, but the court did not enter a written order denying the
motion until after defendant had filed his notice of appeal. Held: Vacated and remanded. [1] Because of the
pending appeal, ―the trial court lacked jurisdiction to enter that order.‖ But the court‘s ―de facto denial‖ of
the motion ―antedated the filing of the notice of appeal and is subject to our review.‖ [2] Although the period
between charging and the omnibus hearing is delay attributable to the state, the postponement of that hearing
                                                                                                             91

caused by defendant‘s failure to file his pretrial motions in a timely manner is attributable to defendant.
[3] The prosecutor‘s statement in moving for a continuance that the defense attorney ―does not object to this
reset request‖ does not mean that a defendant has consented to a delay: it conveys no message that the
defendant either joins in the motion or waives any rights that he has that are affected by the motion.
[4] When the state accepted the earliest available trial date but defense counsel, without explanation, chose
the later trial date, the period between is attributable to the defendant. [5] If the 4-month delay that is at issue
is attributable to the defendant, then the resulting delay of 11½ months is not, in itself, ―unreasonable‖ for
purposes of ORS 135.747. Consequently, the court vacated the conviction and remanded for further
factfinding on which party was responsible for that delay.

STALKING

        State v. Clayton, 210 Or App 442 (2007). The fact that the defendant had a prior conviction for
stalking or violation of a court stalking protective order (VSPO) is an element of the crime of felony VSPO
that must be alleged in the accusatory instrument and proved at trial.

         Habrat v. Milligan, 208 Or App 229, 145 P3d 180 (2006). [1] Although petitioner‘s expressive
contacts (asking petitioner, a hair stylist, for a haircut; making sexual overtures) did not rise to the level of a
―threat,‖ as required by Art. I, § 8, those expressive contacts are relevant context for his nonexpressive
contacts. Thus, in considering the effect of those contacts, the court could consider his persistent and
inappropriate sexual overtures and his demanding style of interaction. Respondent‘s conduct in repeatedly
coming to and waiting outside her workplace were ―contacts‖ that he knew were unwanted, and they caused
her an objectively reasonable fear for her safety. [2] Although the trial court, in preparing a ―check the box‖
form of judgment, marked the box stating that its finding was one of ―probable cause,‖ rather than by a
preponderance of the evidence, its oral ruling shows that that was a scrivener‘s error; moreover, on de novo
review, the appellate court found that a preponderance of the evidence supported issuance of the SPO.

         DiCarlo v. McCarthy, 208 Or App 184, 145 P3d 178 (2006). The evidence supported issuance of a
civil stalking protective order. Respondent‘s threats were not merely a matter of verbal communication; he
also slammed his hand on her truck, causing damage. Moreover, his verbal threats, by themselves, put
petitioner in fear of immediate and serious personal violence. His later conduct in driving past the
petitioner‘s house caused her to have a reasonable apprehension for her physical safety, particularly in light
of the prior threats. The trial court was not required to accept respondent‘s claim that he had legitimate
reasons to drive past the house.

         Smith v. DiMarco, 207 Or App 558, 142 P3d 539 (2006). [1] To support the issuance of a civil
SPO, the unwanted contacts must have occurred within two years of the filing of the petition.
ORS 30.866(6). But earlier incidents can be considered as context for other contacts that occurred within the
two-year period. [3] Arguably threatening statements made by respondent, the grandfather of petitioner‘s
child, during custody hearings and meetings were hyperbole or rhetorical excesses, and there was no
evidence that petitioner feared imminent and serious physical violence as a result. [3] Incidents in which
respondent took swings at petitioner, made threats and attempted to strike him, tried to grab his child, and
physically followed him supported the issuance of the order. [4] Petitioner‘s motive – his alleged desire to
impede respondent‘s visitation with his child – is immaterial to whether the order is supported by the
evidence.

        Courtemanche v. Milligan, 205 Or App 244, 134 P3d 999 (2006). The trial court erred in issuing a
permanent stalking protective order against respondent, a mailman, based on the complaint of one of his
customers. Although some of his conduct toward her ―was persistent to the point of being obsessive‖ and
can ―charitably be characterized as strange, boorish, and offensive, * ** we cannot find that respondent
subjectively knew that two or more of those contacts were unwanted or that he was aware of a ‗substantial
and unjustifiable risk‘ that the contacts were unwanted but consciously and unreasonably disregarded that
92

risk.‖ Petitioner never had ―suggested to respondent that any of his behavior was unwelcome or
inappropriate‖ and he did cease all such contact when her husband instructed him to stop.

        Provost v. Atchley, 205 Or App 37, 132 P3d 30 (2006). Respondents, teenaged girls, appeal from
stalking protective orders obtained by a classmate. Held: Reversed. [1] ―When the unwanted contacts
involve speech, the contacts must be the sort that instill in the addressee a fear of imminent and serious
personal violence from the speaker, are unequivocal, and are objectively likely to be followed by unlawful
acts.‖ [2] The record is legally insufficient to support issuance of the SPOs.

STATUTE OF LIMITATIONS

         State v. Tannehill, 341 Or 205, 141 P3d 584 (2006). The extended statute of limitations in
ORS 131.125(7) for offenses ―based on misconduct in office by a public officer or employee‖ applies only
when the offense is one for which the statute of limitations otherwise would be that contained in
ORS 131.125(6) (generally setting limitations periods of three years for a felony, two years for a
misdemeanor, and six months for a violation). Because the sexual-assault charge in this case was not
governed by ORS 131.125(6), but rather was governed by ORS 131.125(3) (the extended statute of
limitations for sexual offenses), ORS 131.125(7) did not apply.

STATUTORY CONSTRUCTION
     See also ―Constitutional law: construing constitutional provisions,‖ above.

        Bailey v. Lampert, 342 Or 321, ___ P3d ___ (2007). The ―rule of lenity‖ – the maxim that
ambiguities in a criminal statute should be resolved in favor of the criminal defendant – has been abrogated
by ORS 161.025(2), which states that statutes shall not be interpreted ―strictly,‖ but rather should be read
―according to the fair import of [their] terms.‖

        State v. Makuch/Reisterer, 340 Or 658, 136 P3d 35 (2006). The court rejected defendants‘
argument that the exclusionary rule in ORS 9.695(4) should be construed broadly: ―Policy arguments that
are inconsistent with the words of the statute have no place in our statutory analysis methodology, however;
the Oregon Constitution entrusts such policy determinations to the legislature.‖

        State v. Werdell, 340 Or 590, 136 P3d 17 (2006). [1] Statutory terms should not be read in isolation,
but must be read in pari materia with the rest of the language of the statute. [2] Under the principle of
ejudsem generis, the scope of one statutory subsection may be limited by evaluating the scope of related and
more limited provision.

        State v. Ford, 207 Or App 407, 142 P3d 107 (2006). A defendant commits first-degree failure to
appear by failing to appear in court as required after being released ―from custody‖ pursuant to a release
agreement. ORS 162.135, states that, ―unless the context requires otherwise,‖ custody means actual or
constructive restraint by a peace officer pursuant to an arrest or court order. Because there is no conflict or
ambiguity in the statutory definition, and its application to the crime of failure to appear does not lead to an
unreasonable or absurd result, the context does not require an alternative definition of custody.

        State v. Sauer, 205 Or App 428, 134 P3d 1050, rev den 341 Or 141 (2006). Defendant was
convicted of five counts of identity theft based on separate crimes he committed in October 2002. The court
rejected his claim that it should apply the current version of ORS 137.717(1)(d), which requires four
predicate identity-theft convictions in order to impose the 13-month sentence, and it applied instead
ORS 137.717(1)(d)(A) (2001), which required only one predicate identity-theft conviction. Held: Affirmed.
Nothing in the 2003 amendment to the statute suggests that the legislature intended it to apply retroactively,
and the opening phrase in ORS 137.717(1) — ―When the court sentences a person …‖ — cannot be
construed to require the court to apply the version of the statute in force on the date of sentencing.
                                                                                                                93


        State v. Howard, 205 Or App 408, 134 P3d 1042, rev den 341 Or 198 (2006). [1] In construing ORS
136.535, the statute governing a new trial in a criminal action, the proper context for PGE purposes includes
the case law construing the nearly identical rule for civil cases. [2] ―ORS 136.535 does not require motions
for new trials in criminal cases to be filed after the filing of the judgment.‖ (Essentially overruling State v.
Futch.)

         State v. Milburn, 205 Or App 205, 134 P3d 969 (2006). [1] In determining scope and content of a
critical phrase in a statute, the appellate court will first consider the text of the statute in context. If, after the
court engages in that inquiry, the statute remains ambiguous, the court looks to the statute‘s legislative
history, and, finally, to certain ―third-level‖ maxims of statutory construction. The object of the inquiry is to
discern and enforce the legislature‘s intent. [2] When construing two related statutes, the earlier-enacted
statute ―can serve as context for the latter, but not vice versa.‖

STOP AND FRISK
      See also ―Arrest‖ and ―Search & seizure: exclusionary rule,‖ above.

        Stop & frisk: stop vs. mere encounter

         State v. Thompkin, 341 Or 368, 143 P3d 530 (2006). Although a passenger in a vehicle that is
validly stopped in a traffic stop has been ―stopped‖ in a physical sense, the passenger is not ―seized‖ as a
constitutional matter unless further exercise by the officer of coercive control of the passenger ―may, in
certain circumstances, constitute a seizure.‖ Here, a retention of defendant‘s license to run a check for
warrants was a stop under State v. Hall, 339 Or 17 (2005).
         See also State v. Campbell, 207 Or App 585 (2006) (running of records check was stop even though
defendant volunteered his license at beginning of encounter without any request by deputy; consent to pat-
down was tainted).

         State v. McFarland, 210 Or App 744, ___ P3d ___ (2007). A deputy sheriff was dispatched to
respond to a possible dispute at a residence, the address of which was not specified. While he was driving
toward the area in his patrol car, the driver of an oncoming car pointed to a house on the corner. Because the
officer did not know who was involved or whether a crime had occurred, he asked the driver whether a
dispute was occurring, and whether she had called 911; she said yes. The officer then asked her to pull over
to the side of the road, and, when she continued to drive forward, he yelled and told defendant to pull over,
which she did. When he approached her, he observed signs of intoxication and ultimately arrested her. The
trial court denied defendant‘s motion to suppress based on her claim that she was unlawfully stopped when
the officer yelled at her to stop. Held: Affirmed. The officer‘s command did not constitute a stop within the
meaning of Art. I, § 9. Under the circumstances – when defendant requested police response and
affirmatively indicated that she had information to communicate to him – a reasonable person would not
believe that the officer was significantly interfering with her liberty interest when he told her to pull over. A
reasonable person would expect, and even appreciate, the officer to make some attempt to elicit information
about the emergency that the person had reported.

         State v. Scatchard, 208 Or App 315, 145 P3d 237, rev den 342 Or 254 (2006). A request by a
firefighter or EMT that defendant remain at the scene of an automobile collision until officers arrived was
not a stop. The mere fact that the request was made by an ―authority figure‖ was not dispositive; reasonable
persons do not associate seizure of a person (which is a police function) with firefighters or EMTs.
Moreover, defendant had approached him as an acquaintance, not in his official capacity, and decided to
remain out of ―respect,‖ rather than a reasonable belief that he had no choice but to stay.

        State v. Campbell, 207 Or App 585, 142 P3d 517 (2006). A deputy sheriff saw defendant walking
along a highway, looking ―out of place,‖ and pulled behind him and parked, without turning on overhead
94

light. As the deputy approached, defendant pulled out his wallet and handed his ODL to the deputy. The
deputy then ran a records check and learned that defendant was ―clear.‖ He did not return the license, but
instead sought consent to pat defendant down for weapons. The trial court denied defendant‘s motion to
suppress drugs found on his person. Held: [1] Regardless of the nature of the encounter before the deputy
accepted the license and ran a records check, it became a stop under Art. I, § 9, at that point. [2] The stop
was not supported by reasonable suspicion. [3] Defendant‘s consent to the pat-down was the product of the
illegal detention, under State v. Hall, 339 Or 7 (2005). The mere fact that defendant voluntarily handed over
his license did not constitute consent to be searched; any attenuating influence of that voluntary act
dissipated once the deputy retained defendant‘s license and defendant was no longer free to leave.

         State v. Guest, 207 Or App 395, 142 P3d 482 (2006). A police officer saw defendant parked in a
parking lot in a small park at 10 p.m. Believing that the park was closed and that defendant was trespassing,
the officer pulled in behind defendant and engaged in him conversation, during which defendant admitted to
having a loaded gun behind his seat. The circuit court denied defendant‘s motion to suppress. Held:
Reversed. [1] Because the officer could point to no fact supporting his belief that park was closed, his
suspicion that defendant was trespassing was unreasonable. [2] Because circuit court did not resolve whether
officer blocked petitioner‘s parked car with his patrol car, appellate court could not determine whether
defendant was stopped. Remanded for a factual determination as to whether defendant was prevented from
leaving.

        State v. Cochran, 206 Or App 686, 138 P3d 864 (2006). Officers contacted defendant and engaged
him in mere conversation, during which they asked him for identification and one officer conducted a
warrants check. He then asked for and obtained defendant‘s consent to search his person and to allow him to
handcuff him during the search. After specifically asking for consent to search a wallet on defendant‘s
person, the officer found a baggie of methamphetamine. The trial court denied defendant‘s motion to
suppress. Held: Reversed and remanded. In light of State v. Hall, 339 Or 17 (2005), the officer unlawfully
stopped defendant when he obtained defendant‘s identification and ran a warrants check without reasonable
suspicion to believe that defendant had committed a crime.

        State v. Benfit, 205 Or App 180, 134 P3d 171 (2006) (per curiam). While the deputy still retained
for a warrants check the identification that defendant, a passenger, had provided him, he obtained
defendant‘s consent to a search. Held: Unlawful stop and the consent was invalid.

        Stop & frisk: reasonable suspicion / probable cause

         State v. Guest, 207 Or App 395, 142 P3d 482 (2006). A police officer saw defendant parked in a
parking lot in a small park at 10 p.m. Believing that the park was closed and that defendant was trespassing,
the officer pulled in behind defendant and engaged in him conversation, during which defendant admitted to
having a loaded gun behind his seat. The circuit court denied defendant‘s motion to suppress. Held:
Reversed. [1] Because the officer could point to no fact supporting his belief that park was closed, his
suspicion that defendant was trespassing was unreasonable. [2] Because circuit court did not resolve whether
officer blocked petitioner‘s parked car with his patrol car, appellate court could not determine whether
defendant was stopped. Remanded for a factual determination as to whether defendant was prevented from
leaving.

        Stop & frisk: duration or scope of intrusion

        State v. Williams, 206 Or App 432, 136 P3d 1201 (2006). Defendant was stopped for a traffic
violation. He voluntarily provided identification, and a records check revealed that he had a history of drug
offenses. Without returning the identification, the officer asked defendant to move his vehicle so that he
could ask more questions (about drugs). In response to the questions, defendant produced a syringe with
drug residue on the needle; a search incident to arrest for PCS revealed more drugs in the car. The circuit
                                                                                                          95

court denied defendant‘s motion to suppress. Held: Reversed. [1] Although the officer‘s conduct in merely
―changing the subject‖ of the conversation to something other than the traffic infraction did not itself exceed
the scope of the stop, the officer‘s questions and requests had the effect of extending the duration of the stop
and were not based on reasonable suspicion, and thus violated Article I, section 9. [2] Because defendant‘s
production of the syringe was the product of exploitation of the unlawful stop under State v. Hall,
suppression was required.

TAMPERING WITH WITNESS
    See also ―Hindering Prosecution,‖ above.

         State v. McBeth, 209 Or App 546, 149 P3d 212 (2006). The trial court correctly admitted testimony
of a witness that, when defendant engaged in the conduct that was the source of the tampering charge (his
attempts to induce her not to appear or to testify, in violation of ORS 162.285(1)(a) and (b)), she was in fear
of defendant because of rumors that he had been involved in murders of other people. Although it is not an
element of the crime that the defendant actually place the victim in fear, the fact that the victim was fearful
(and the reasons for her fear) was relevant under OEC 401 to prove that the victim credibly interpreted
defendant‘s conduct as an attempt to use his presence and his reputation to induce her not to appear or to
testify against him. Likewise, it was relevant to prove the mens rea element of the crime: that defendant
knowingly was attempting to induce her not to testify.

         State v. Tweed, 205 Or App 539, 134 P3d 1047, rev den 341 Or 80, 450 (2006). [1] To prove
tampering with a witness in violation of ORS 162.285(1)(b), ―the state must show that the witness was
served with some sort of legal process before the defendant tried to prevent the witness from testifying.‖
[2] Although the witness testified before the grand jury and a trial, and hence a rational juror could assume
that she, at some point, had been summoned, ―there is no evidence that [she] was summoned as a witness
before defendant‘s conduct occurred.‖

THEFT, FORGERY, AND PROPERTY OFFENSES

         State v. Baldwin, 206 Or App 643, 138 P3d 867, rev den 341 Or 366 (2006). Defendant moved to
dismiss forgery charges in Multnomah County on the ground that his previous forgery convictions in
Columbia County barred the new charges. The trial court denied the motion on both state statutory and
constitutional grounds, ruling that defendant had failed to prove that the Multnomah County offenses were
―reasonably known‖ to the Columbia County prosecutor. Held: Affirmed. [1] Although the precise scope of
the ―reasonably known‖ element of the statutory former-jeopardy provision is unclear, defendant cannot
prevail under any possible interpretation. That is, the record does not establish either that the charges in
either county were based on the same conduct or that the first prosecutor was aware of such a fact.
Moreover, the mere fact that one of the charges involved the same check did not establish that the Columbia
County prosecutor — who charged defendant only with the making of the check — knew or should have
known about defendant‘s subsequent uttering of the check. [2] Defendant‘s state constitutional argument
fails because that test, too, requires proof that the prosecutor knew or reasonably should have known of the
facts relevant to the second charge at the time of the first prosecution.

TRAFFIC OFFENSES

         State v. Warner, 342 Or 361, ___ P3d ___ (2007). A previous prosecution on citation for careless
driving did not bar a separate prosecution for DUII and reckless driving arising from the same incident.
ORS 153.108, which provides that conviction on an infraction does not bar a separate prosecution for a crime
based on the same incident, overrides the former-jeopardy bar in ORS 131.515(2), (3), and (4), even if the
infraction is a lesser-included offense. And because ―careless driving and reckless driving are not the ‗same
offense‘ for purposes of ORS 131.515(1),‖ defendant‘s conviction for the former does not bar, under
ORS 131.515(1), his prosecution for the latter. Based on State v. Selness/Miller, 334 Or 515 (2002), the
96

prosecution of the infractions was not a prosecution for a ―crime‖ under the double-jeopardy bar in Article I,
section 12.

          State v. Greenlick, 210 Or App 662, ___ P3d ___ (2007). ORS 135.747, the statutory speedy-trial
provision, applies to violation proceedings. A delay of 15 months between the issuance of the citation and
the trial was unreasonable, in the absence of any other circumstances.

        State v. Boly, 210 Or App 132, 149 P3d 1237 (2006). The state is not required to prove, as an
element of the crime of failure to obey a traffic-control device, that the traffic control device was properly
positioned; rather, defendant may prove that fact as an affirmative defense.

         State v. Rowe, 210 Or App 66, 150 P3d 48 (2006). During a demonstration, officers observe the
defendant standing next to his bicycle on the sidewalk. Officers asked the defendant to ―move along‖ and
defendant refused. Defendant was cited and convicted of violations of impeding traffic (ORS 811.130(1))
and failure to obey a police officer (ORS 811.535(1)). The Court of Appeals reversed both convictions.
While a person riding a bicycle has the same rights and duties as the driver of any other vehicle (ORS
814.400(1)), the impeding traffic statute has no application to a person who stands next to a bicycle that is
not moving. Further, a person commits the offense of failure to obey a police officer if the person fails to
comply with any ―lawful order.‖ Because defendant was not unlawfully impeding traffic, the officer‘s order
that defendant ―move along‖ was not a ―lawful order.‖

          State v. Avera, 208 Or App 625, 145 P3d 288 (2006), rev den 342 Or 299 (2007). Under
ORS 153.080, the county was entitled to adopt rules authorizing the admission of testimony in a violation
trial in the form of an affidavit upon the defendant‘s written waiver. Although defendant did not sign such a
waiver, he was required to object to the admission of any affidavit if he wished to raise the issue on appeal.

        State v. Hewitt, 206 Or App 680, 138 P3d 873 (2006). Based on a single incident, defendant was
charged with DUII and DWS. At arraignment, the prosecutor reduced the DWS to a violation pursuant to
ORS 161.566(1). When defendant failed to appear on the trial date on the DWS, the court entered a default
judgment. Defendant later moved to dismiss the DUII on the statutory and constitutional former-jeopardy
grounds. The trial court granted the motion, concluding that, because the DWS originally was charged as a
misdemeanor, it was ―criminal‖ for purposes of the former-jeopardy provisions. Held: Reversed and
remanded based on State v. Page, 200 Or App 55, rev den (2005). Even if defendant was arrested and
detained for the DWS charge, that pretrial procedure did not render the prosecution criminal in nature.

TRIAL

         State v. Luers, 211 Or App 34, ___ P3d ___ (2007). Defendant was convicted of various charges
based on his conduct in committing an arson at one location and an attempted arson at another. He also was
convicted of one count of first-degree criminal mischief and one count of attempted first-degree criminal
mischief at each location, and one count each of unlawful manufacture and possession of a destructive device
at each location. The trial court denied his motion to sever the charges based on the two incidents, and
defendant was convicted at trial. Held: Affirmed. The charges relating to the separate incidents were
properly joined for trial under ORS 132.560(2), and, because much of the evidence would have been
admissible in both cases even in separate trials, defendant did not show that he would suffer ―substantial
prejudice‖ by the joint trial and thus was not entitled to severance under ORS 132.560(3).

          State v. Greenlick, 210 Or App 662, ___ P3d ___ (2007). ORS 135.747, the statutory speedy-trial
provision, applies to violation proceedings. A delay of 15 months between the issuance of the citation and
the trial was unreasonable, in the absence of any other circumstances.
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         State v. Ragland, 210 Or App 182, 149 P3d 1254 (2006). Defendant invoked her right to counsel
and to remain silent ten minutes into an encounter with officers that resulted in an arrest for DUII. At trial,
the court allowed the prosecutor to cross-examine the defendant on matters related to the defendant‘s
invocation of her right to counsel and to remain silent. The court also permitted the prosecutor to comment
directly in closing argument on defendant‘s failure to ―speak with the officer‖ and explain herself after she
was arrested. Held: The trial court erroneously overruled defendant‘s objections to the prosecutor‘s cross-
examination questions and her comments on defendant‘s exercise of the right to remain silent and the right to
have counsel present during questioning in violation of the Fifth Amendment and Art. I, § 12.

          State v. Avera, 208 Or App 625, 145 P3d 288 (2006), rev den 342 Or 299 (2007). Under
ORS 153.080, the county was entitled to adopt rules authorizing the admission of testimony in a violation
trial in the form of an affidavit upon the defendant‘s written waiver. Although defendant did not sign such a
waiver, he was required to object to the admission of any affidavit if he wished to raise the issue on appeal.

          State v. Vega, 206 Or App 668, 139 P3d 260, rev den 341 Or 367 (2006). After the close of
evidence and before closing arguments in defendant‘s trial for the severe abuse of her elderly husband, a
juror became unavailable due to critical injuries suffered by her husband in an accident. Defendant refused
to proceed with fewer than 12 jurors, and over defendant‘s motions for a mistrial, the trial judge twice
postponed the trial (first for a period of six days and later for another 21 days) when it became clear that the
juror was unable to return to court. Both times, the court instructed jurors not to discuss the case or to
conduct any independent investigation. After the trial resumed, the trial court asked the jurors whether they
had been exposed to any such information, and they responded that they had not. Counsel for both parties
declined the court‘s invitation to submit to the jurors ―any specific questions‖ regarding that issue. Held:
Affirmed. [1] Defendant failed to prove that the postponements caused any actual prejudice. Although the
trial court, in instructing the jury, referred to the constitutional requirement of a 12-person jury, it did not
suggest that defendant was refusing to waive that requirement or that she was responsible for the delay. Nor
did the trial court‘s reference to the jurors‘ ―collective memory‖ invite them to base their verdicts solely on
the recollections of other jurors. [2] The delay was not so lengthy that the duration alone required a
presumption of prejudice. [3] Whether a delay, by itself, deprives a defendant of his due-process right to a
fair trial depends on various factors, including the need for the continuance, potential prejudice to the
defendant, and the ―inevitable and complex realities faced by trial courts in scheduling jury trials.‖ Here,
those factors did not require a mistrial.

VENUE

           State v. Werdell, 202 Or App 413, 122 P3d 86 (2005), rev’d on other grounds 340 Or 590, 136 P3d
17 (2006). [1] ―Although venue is not an element of the offense, it is a material allegation that the state must
prove to a jury beyond a reasonable doubt.‖ [2] In construing an ambiguous statute, ―[c]ontext includes prior
versions of a statute and the pre-existing statutory framework within which a law was enacted, as well as
related statutes that were contemporaneously enacted.‖ ―When construing statutes, we generally presume
that the legislature did not intend for its enactments to be redundant.‖ In the third level of PGE analysis, ―we
apply general maxims of statutory construction,‖ which includes the maxim that ―directs us to attempt to
determine how the legislature would have intended the statute to be applied had it considered the issue.‖
―Another maxim provides that we must choose an interpretation that will avoid any serious constitutional
difficulty.‖ [3] ―Article I, section 11, does not permit the legislature to establish venue where no element of
the crime occurred.‖ [4] ―In analyzing a constitutional provision, we strive to understand the wording in the
light of the way that wording would have been understood and used by those who created the provision. We
also seek to apply faithfully the principles embodied in the Oregon Constitution to modern circumstances as
those circumstances arise.‖ ―Later-enacted statutes that do not merely codify preexisting common law shed
little, if any, light on the meaning of the constitution.‖ [5] Had the legislature considered the ambiguity in
ORS 162.325, it would have made clear that ―commission of the underlying felony is an element of the
offense of hindering prosecution for purposes of establishing venue,‖ and that is permissible legislative
98

choice under Article I, section 11.

WEAPONS OFFENSES

         Bailey v. Lampert, 342 Or 321, ___ P3d ___ (2007). [1] In enacting the crime of being a felon in
possession of a firearm, defined in ORS 166.270, the legislature intended to focus on the person‘s status at
the time the person possesses the firearm. Thus, even if that status might later change because the felony
conviction is reversed or set aside, the person commits the offense if he or she is a felon at the time of
possession of the firearm. [2] Under Lewis v. United States, 445 US 55 (1980), that legislative choice does
not violate the federal Due Process Clause. [3] Although this court held in City of Pendleton v. Standerfer,
297 Or 725 (1984), that a defendant may challenge the use of a ―constitutionally invalid‖ conviction at
sentencing, that rule is limited to challenges based on the claimed deprivation of the Art. I, § 11 or Sixth
Amendment rights to counsel in the prior proceeding; it does not permit challenges for reasons other than
lack of counsel.

         State v. Jacob, 208 Or App 62, 145 P3d 212 (2006) (en banc). Defendant was convicted in 2002 of
first-degree robbery, and the state argued that he should receive a 30-year gun minimum sentence based on
ORS 161.610(4)(c) (2001), because of two previous convictions that had resulted in gun-minimum sentences
in 1983 and 1991. Defendant objected to the court‘s consideration of the 1983 conviction, arguing that his
1983 gun-minimum sentence was unconstitutional under State v. Wedge, 293 Or 598 (1982), because the
judge, not the jury, had made the requisite finding that he had ―used or threatened to use a firearm‖ in the
commission of the offense. The sentencing court agreed, and imposed only a 10-year gun-minimum
sentence after treating the 1991 conviction as the sole previous conviction subject to the gun minimum. The
state appealed. Held: The sentencing court erroneously refused to consider the 1983 conviction.
ORS 161.610 does not permit a challenge to the validity of the prior conviction that establishes the basis for
the enhanced sentence.

WILDLIFE OFFENSES

         State v. Milburn, 205 Or App 205, 134 P3d 969 (2006). Defendant, whose ―angling privileges‖
were revoked under ORS 497.415(6), was convicted for angling while revoked in violation of ORS 497.441
for fishing during a ―free fishing weekend‖ in which no license was required under ORS 497.079. Held:
Reversed. Nothing in the text of ORS 497.415 suggests that, in addition to revocation of the ability to
engage in angling, hunting or trapping activities that requires a license, tag, or permit, revocation also
prohibits the person from engaging in fish or game activities that do not require a license, permit, or tag. ―A
person whose angling license has been revoked violates [ORS 497.441] only if he or she engages in angling
activity that requires a license.‖

								
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