Sample Plaintiffs Appeal to First Appellate California Dismiss After Sustaining Demurrer Without Leave to Amend

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					     CRIMINAL LAW SECTION CLE
CONTEMPORARY ISSUES IN CRIMNAL LAW
                          Portland, Oregon
                            April 4, 2008




            APPELLATE UPDATE
                                   By

            Jennifer S. Lloyd and Timothy A. Sylwester


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




       Covering Oregon cases from April 2007 through March 2008
                                    and
Criminal cases from the United States Supreme Court’s 2006 and 2007 terms
                                  APPELLATE DIVISION
                 Justice Building, 1162 Court Street NE, Salem, OR 97301-4096

Personnel:    Mary H. Williams, Solicitor General
              Erika L. Hadlock, Assistant Solicitor General
              Robert Atkinson, Supreme Court Coordinator (robert.atkinson@state.or.us)
              Jonathan H. Fussner, Attorney in Charge, Criminal Appeals
                     (j.fussner@doj.state.or.us)
              Paul L. Smith, Assistant AIC, Criminal Appeals (paul.l.smith@state.or.us)
              Kathleen Cegla, Attorney in Charge, Collateral Remedies
                     (kathleen.cegla@state.or.us)
              Timothy A. Sylwester: Attorney in Charge, Capital Cases
                     (timothy.sylwester@state.or.us)
              Richard D. Wasserman, Attorney in Charge, Civil Appeals
              Mandamus: Anna Joyce (anna.joyce@state.or.us)

State‘s Appeals Committee:
              Jonathan H. Fussner
              Robert M. Atkinson
              Kathleen Cegla
              Timothy A. Sylwester
              Susan Howe (susan.howe@state.or.us)
              Janet A. Klapstein (janet.klapstein@state.or.us)
              Christina Hutchins (christina.hutchins@state.or.us)

Administrative Assistants:
      Criminal Appeals: Dianne Tichenor (diane.tichenor@state.or.us)
      Capital Cases: Sharon Dufour (sharon.dufour@state.or.us)
      Collateral Remedies: Betty Glidden (betty.m.glidden@state.or.us)


               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@doj.state.or.us)
              O. Scott Jackson, Sr AAG (o.scott.jackson@state.or.us)
              Stephanie J. Tuttle (Stephanie.j.tuttle@state.or.us)
              DUII Coordinator: Deena Ryerson, AAG (deena.ryerson@state.or.us)
                                          TABLE OF CONTENTS
ACCOMPLICES ....................................................................................................................... 1
ACCUSATORY INSTRUMENTS ........................................................................................... 1
APPEALS.................................................................................................................................. 3
                      Appeals: appealable orders, filing notice of appeal, appellate jurisdiction ....... 3
                      Appeals: cross-appeal ........................................................................................ 3
                      Appeals: scope of review .................................................................................. 3
                      Appeals: invited error ........................................................................................ 4
                      Appeals: preservation of error .......................................................................... 5
                      Appeals: ―plain error‖ review............................................................................ 6
                      Appeals: ―right for the wrong reason‖ affirmance .......................................... 10
                      Appeals: claims of error that may be moot, harmless, or waived .................. 10
                      Appeals: remand for further proceedings, proceedings on remand................. 13
ARREST.................................................................................................................................. 14
ARSON AND RELATED OFFENSES .................................................................................. 15
ASSAULT, CRIMINAL MISTREATMENT, AND RELATED OFFENSES ...................... 15
ATTEMPTS ............................................................................................................................ 16
BURGLARY / TRESPASS .................................................................................................... 16
CHILD NEGLECT ................................................................................................................. 18
CONFESSIONS / MIRANDA ................................................................................................. 18
CONSTITUTIONAL LAW .................................................................................................... 20
                      Constitutional law: equal-protection issues.................................................... 20
                      Constitutional law: free-speech issues ............................................................ 21
                      Constitutional law: other issues....................................................................... 22
CONTEMPT ........................................................................................................................... 22
DEATH PENALTY ................................................................................................................ 24
                      Death penalty: federal cases ........................................................................... 24
                      Death penalty: state cases ............................................................................... 26
DEFENSES ............................................................................................................................. 28
DEMURRERS ........................................................................................................................ 29
DISMISSAL ............................................................................................................................ 30
DISORDERLY CONDUCT ................................................................................................... 30
DRIVING UNDER THE INFLUENCE OF INTOXICANTS ............................................... 31
                      DUII: diversion .............................................................................................. 31

                                                                          i
                     DUII: field sobriety tests ................................................................................. 31
                     DUII: breath test ............................................................................................. 31
                     DUII: other evidence ...................................................................................... 32
                     DUII: sentencing ............................................................................................ 32
                     DUII: felony DUII ........................................................................................... 33
DRUG OFFENSES ................................................................................................................. 33
ESCAPE OFFENSES ............................................................................................................. 35
EVIDENCE ............................................................................................................................. 35
                     Evidence: sufficiency of objection ................................................................. 35
                     Evidence: applicability of Evidence Code (OEC 101)................................... 36
                     Evidence: relevance (OEC 401, 402) .............................................................. 36
                     Evidence: character evidence (OEC 404) ...................................................... 36
                     Evidence: rape-shield law (OEC 412) ............................................................. 37
                     Evidence: impeachment of witness (OEC 607) .............................................. 37
                     Evidence: impeachment for bias (OEC 609-1) .............................................. 37
                     Evidence: expert testimony (OEC 702) .......................................................... 37
                     Evidence: statements that are non-hearsay (OEC 801(4)) ............................. 38
                     Evidence: hearsay exceptions—―excited utterance‖ (OEC 803(2))................ 38
                     Evidence: hearsay exceptions—statements relating to child abuse
                     (OEC 803(18a)(b)) .......................................................................................... 38
                     Evidence: hearsay exceptions–residual hearsay exception (OEC 803(28)) .... 39
                     Evidence: statements against interest (OEC 804(3))....................................... 39
                     Evidence: authentication, chain of custody (OEC 901) .................................. 40
                     Evidence: other—stipulations, judicial admissions ........................................ 40
                     Evidence: other—Confrontation Clause, Crawford objections ...................... 40
EX POST FACTO ................................................................................................................... 44
FORMER JEOPARDY ........................................................................................................... 44
GRAND JURY ........................................................................................................................ 44
GUILTY PLEAS ..................................................................................................................... 45
HABEAS CORPUS PROCEEDINGS ..................................................................................... 45
                     Habeas corpus: federal-court proceedings ..................................................... 45
                     Habeas corpus: state-court proceedings ......................................................... 48
HARASSMENT ...................................................................................................................... 49
HINDERING PROSECUTION .............................................................................................. 49

                                                                        ii
HOMICIDE ............................................................................................................................. 49
INDIAN LAW......................................................................................................................... 51
INITIATING A FALSE REPORT .......................................................................................... 51
INMATES ............................................................................................................................... 52
INSANITY .............................................................................................................................. 52
INSTRUCTIONS .................................................................................................................... 53
INTERCEPTION OF COMMUNICATIONS ........................................................................ 55
INTERFERING WITH OFFICER / OBSTRUCTING GOVERMENTAL
ADMINISTRATION .............................................................................................................. 56
INTERPRETERS .................................................................................................................... 56
JOINDER ................................................................................................................................ 57
JURY TRIAL .......................................................................................................................... 57
JUVENILES ............................................................................................................................ 58
KIDNAPPING AND RELATED OFFENSES ....................................................................... 58
LESSER-INCLUDED OFFENSES ........................................................................................ 58
MANDAMUS ......................................................................................................................... 59
MENTAL STATES................................................................................................................. 59
MISTRIAL .............................................................................................................................. 60
NEW-TRIAL MOTIONS ....................................................................................................... 60
PAROLE AND RELEASE ..................................................................................................... 61
POST-CONVICTION PROCEEDINGS ................................................................................ 61
PROSTITUTION .................................................................................................................... 63
RECKLESSLY ENDANGERING ......................................................................................... 64
RIGHT TO COUNSEL ........................................................................................................... 64
                      Right to counsel: before indictment ................................................................ 64
                      Right to counsel: substitution of counsel ........................................................ 65
                      Right to counsel: trial ...................................................................................... 65
ROBBERY .............................................................................................................................. 66
SEARCH & SEIZURE............................................................................................................ 67
                      Search & seizure: privacy interests / searches ................................................ 67
                      Search & seizure: probable cause .................................................................... 68
                      Search & seizure: search / entry and seizure pursuant to warrant ................... 68
                      Search & seizure: warrantless searches—abandonment ................................. 69
                      Search & seizure: warrantless searches—consent........................................... 70

                                                                         iii
                     Search & seizure: warrantless searches—emergency aid ............................... 70
                     Search & seizure: warrantless searches—incident to arrest ............................ 70
                     Search & seizure: warrantless searches—inevitable discovery ...................... 70
                     Search & seizure: warrantless searches—inventory / administrative
                     searches ........................................................................................................... 71
                     Search & seizure: exclusionary rule ................................................................ 71
SENTENCING ........................................................................................................................ 72
                     Sentencing: constitutional issues—right to jury, Apprendi ............................. 72
                     Sentencing: constitutional issues—proportionality objections ...................... 76
                     Sentencing: constitutional issues—other ........................................................ 76
                     Sentencing: crime-seriousness ranking ........................................................... 77
                     Sentencing: criminal history........................................................................... 78
                     Sentencing: term of post-prison supervision .................................................. 78
                     Sentencing: probationary dispositions ............................................................ 79
                     Sentencing: departures—aggravating factors .................................................. 79
                     Sentencing: departures—mitigating factors .................................................... 80
                     Sentencing: consecutive sentences .................................................................. 80
                     Sentencing: statutory sentences—murder (ORS 163.115) ............................. 82
                     Sentencing: statutory sentences—Denny Smith statute (ORS 137.635) ........ 82
                     Sentencing: statutory sentences—firearm-minimum (ORS 161.610)............. 82
                     Sentencing: statutory sentences—Measure 11 (ORS 137.700)....................... 82
                     Sentencing: statutory sentences—repeat property offenders
                     (ORS 137.717) ................................................................................................ 84
                     Sentencing: statutory sentences—no-release orders (ORS 137.750) .............. 84
                     Sentencing: statutory sentences—three-strikes law (ORS 137.719) ............... 85
                     Sentencing: statutory sentences—other prior-conviction offenses ................ 85
                     Sentencing: revocation of probation .............................................................. 86
                     Sentencing: merger ......................................................................................... 86
                     Sentencing: miscellaneous—credit for time served ....................................... 88
                     Sentencing: miscellaneous—entry of amended judgment ............................. 89
                     Sentencing: miscellaneous—stipulated sentences ......................................... 89
                     Sentencing: miscellaneous—expunction........................................................ 89
                     Sentencing: miscellaneous—fines, restitution, costs, forfeiture ..................... 89
                     Sentencing: miscellaneous—other consequences of felony conviction ......... 90


                                                                        iv
                      Sentencing: appeals—appealable orders and judgments................................ 91
                      Sentencing: appeals—scope of review ........................................................... 91
                      Sentencing: appeals—reviewability, preservation, ―plain error‖ review ....... 92
                      Sentencing: appeals—claims of error that may be moot, harmless,
                      or waived ......................................................................................................... 94
                      Sentencing: appeals—remand for resentencing, entry of a corrected
                      judgment .......................................................................................................... 95
                      Sentencing: appeals—proceedings on remand ............................................... 95
                      Sentencing: challenges to sentences on collateral review—post-conviction
                      proceedings ...................................................................................................... 95
SEXUAL OFFENSES............................................................................................................. 96
SPEEDY TRIAL ..................................................................................................................... 98
STALKING ............................................................................................................................. 99
STATUTE OF LIMITATIONS .............................................................................................. 99
STATUTORY CONSTRUCTION ......................................................................................... 99
STOP AND FRISK ............................................................................................................... 101
                      Stop & frisk: stop vs. mere encounter .......................................................... 101
                      Stop & frisk: reasonable suspicion / probable cause .................................... 102
                      Stop & frisk: scope or duration of stop ........................................................ 103
THEFT, FORGERY, AND PROPERTY OFFENSES ......................................................... 103
TRAFFIC OFFENSES .......................................................................................................... 103
TRIAL ................................................................................................................................... 104
VENUE ................................................................................................................................. 106
WEAPONS OFFENSES ....................................................................................................... 106
WILDLIFE OFFENSES ....................................................................................................... 107

                                                     TABLE OF AUTORITIES
                                                                  Cases Cited
Abdul-Kabir v. Quarterman,
      550 US __, 127 S Ct 1654, 167 L Ed 2d 585 (2007) ............................................ 26, 48
Benaman v. Andrews,
     213 Or App 467, __ P3d __ (2007) ............................................................................. 99
Bishop v. Hall,
       214 Or App 291, 164 P3d 344 (2007) ......................................................................... 62
Bowles v. Russell,
      551 US __, 127 S Ct 2360, 168 L Ed 2d 96 (2007) ................................................ 3, 46

                                                                          v
Brendlin v. California,
       551 US __, 127 S Ct 2400, 168 L Ed 2d 132 (2007) ................................................ 101
Brewer v. Quarterman,
      550 US __, 127 S Ct 1706, 167 L Ed 2d 622 (2007) ............................................ 26, 48
Buffa v. Belleque,
        __ Or App __, __ P3d __ (July 11, 2007) ............................................................. 62, 95
Carey v. Lincoln Loan Co.,
       342 Or 530, 157 P3d 775 (2007) ................................................................................. 22
City of Portland v. King,
        211 Or App 540, 156 P3d 87 (2007) ................................................................. 101, 107
Corgain v. Board of Parole,
      213 Or App 407, __ P3d __ (2007) ............................................................................. 61
Curtiss v. Dept. of Corrections,
       212 Or App 42, 157 P3d 279 (2007) ..................................................................... 61, 88
Danforth v. Minnesota,
      __ US __, __ S Ct __, __ L Ed 2d __ (Feb 20, 2008) ..................................... 22, 40, 45
Dunn v. Hill,
      211 Or App 590, 156 P3d 72 (2007) ..................................................................... 48, 52
Erickson v. Pardus,
       551 US __, 127 S Ct 2197, 167 L Ed 2d 1081 (2007) ................................................ 52
Fry v. Plilar,
        551 US __, 127 S Ct 2321, 168 L Ed 2d 15 (2007) .................................................... 46
Gonzales v. Carhart,
      549 US __, 127 S Ct 1610, 167 L Ed 2d 480 (2007) ............................................ 29, 49
Harrison v. Hall,
       211 Or App 697, 156 P3d 141 (2007) ..................................................................... 6, 63
James v. United States,
       550 US __, 127 S Ct 1586, 167 L Ed 2d 532 (2007) ...................................... 16, 73, 90
Kincek v. Hall,
       217 Or App 227, 175 P3d 496 (2007) ......................................................................... 61
Kojah v. Santos,
       215 Or App 354, 168 P3d 1258 (2007) ....................................................................... 62
Los Angeles County v. Rettele,
      550 US __, 127 S Ct 1989, 167 L Ed 2d 974 (2007) .................................................. 68
Mastriano v. Board of Parole,
       342 Or 684, __ P3d __ (2007) ............................................................................... 61, 99
Mecham v. Hill,
     217 Or App 144, 174 P3d 1051 (2007) ........................................................... 11, 48, 88



                                                                vi
Mota v. Hill,
       215 Or App 623, 170 P3d 1092 (2007) ................................................................. 61, 65
Panetti v. Quarterman,
       551 US __, __ S Ct __, __ L Ed 2d __ (June 28, 2007) .................................. 24, 46, 52
Quimby v. Hill,
      213 Or 124, __ P3d __ (2007) ....................................................................... 37, 62, 105
Ramirez v. State of Oregon,
      212 Or App 446, 157 P3d 1290 (2007) ........................................................... 45, 62, 91
Rita v. United States,
        551 US __, __ S Ct __, 168 L Ed 2d 203 (2007) ........................................................ 72
Roper v. Weaver,
       550 US __, 127 S Ct 2022, 167 L Ed 2d 836 (2007) ............................................ 25, 47
Schriro v. Landrigan,
       550 US __, 127 S Ct 1933, 167 L Ed 2d 836 (2007) ............................................ 25, 47
Scott v. Harris,
        550 US __, 127 S Ct 1769, 167 L Ed 2d 686 (2007) ............................................ 14, 22
Senda v. Thompson,
       211 Or App 390, 155 P3d 53 (per curiam),
       on recon 212 Or App 706, 159 P3d 355,
       rev den, 343 Or 159 (2007) ......................................................................................... 62
Senda v. Thompson,
       212 Or App 706, __ P3d __ (2007) ............................................................................. 91
Smith v. Texas,
       550 US __, 127 S Ct 686, 167 L Ed 2d 632 (2007) .................................................... 26
Snyder v. Louisiana,
       __ US __, __ S Ct __, __ L Ed 2d __ (March 19, 2008) ............................................. 57
State ex rel. Juv Dept. v. L.N.
        212 Or App 695, 159 P3d 333 (2007) ........................................................................ 58
State ex rel. Juv. Dept. of Mult. Co. v. S.P.,
        218 Or App 131, __ P3d __ (2008) ........................................................... 11, 13, 39, 42
State ex rel. Juv. Dept. v. J. D.,
        214 Or App 251, 164 P3d 1182 (2007) ....................................................................... 58
State ex rel. Juv. Dept. v. K.M.-R.,
        213 Or App 275, __ P3d __ (2007) ............................................................................. 58
State v. Alvarez-Garcia,
        212 Or App 663, 159 P3d 357 (2007) ......................................................................... 35
State v. Anderson,
        215 Or App 643, 171 P3d 972 (2007) ........................................................................... 4
State v. Arnold,
        214 Or App 201, 164 P3d 334 (2007) ................................................................... 83, 93

                                                                 vii
State v. Banks,
        __ Or App __, __ P3d __ (March 19, 2008) ..................................................... 7, 80, 92
State v. Barber,
        343 Or 525, 173 P3d 827 (2007) ................................................................................... 6
State v. Barteaux,
        212 Or App 118, 157 P3d 225 (2007) ......................................................................... 98
State v. Basargin,
        213 Or App 515, __ P3d __ (2007) ................................................................... 9, 16, 54
State v. Beaman,
        216 Or App 181, 171 P3d 402 (2007),
        rev den, 344 Or 109 (2008) ................................................................................... 11, 42
State v. Betnar,
        214 Or App 416, 166 P3d 554 (2007) ............................................................. 21, 44, 97
State v. Birchfield,
        342 Or 624, 157 P3d 216 (2007) ........................................................................... 33, 41
State v. Bisby,
        212 Or App 86, 157 P3d 262 (2007) ..................................................................... 63, 95
State v. Bloom,
        216 Or App 245, 172 P3d 663 (2007),
        rev den, 344 Or 280 (2008) ......................................................................................... 31
State v. Bolf,
        217 Or App 606, 176 P3d 1287 (2008) ................................................................. 78, 86
State v. Boone,
        213 Or App 242, __ P3d __ (2007) ........................................................... 1, 17, 94, 106
State v. Bowden,
        217 Or App 133, 174 P3d 1073 (2007) ................................................................. 83, 86
State v. Bowen,
        215 Or App 199, 168 P3d 1208 (2007) ....................................................................... 75
State v. Bray,
        342 Or 711, __ P3d __ (2007) ................................................................... 73, 79, 94, 96
State v. Brostrom,
        212 Or App 486, 157 P3d 1237 (2007) ....................................................................... 88
State v. Brostrum,
        212 Or App 486,
        mod on recon, 214 Or App 604, 167 P3d 460 (2007) ........................................... 12, 40
State v. Brown,
        217 Or App 330, 176 P3d 400 (2007) ......................................................................... 36
State v. Brown,
        212 Or App 164, 157 P3d 301 (2007) ................................................................... 67, 90



                                                                 viii
State v. Buck,
        217 Or App 363, 174 P3d 1106 (2007) ................................................................. 76, 82
State v. Burleson,
        342 Or 697, __ P3d __ (2007) ......................................................................... 22, 44, 59
State v. Burns,
        213 Or App 38, 159 P3d 1208 (2007) ....................................... 2, 4, 30, 60, 75, 80, 104
State v. Cadigan,
        212 Or App 686, 159 P3d 348 (2007) ......................................................................... 60
State v. Calvert,
        214 Or App 227, 164 P3d 1169 (2007) ......................................................................... 9
State v. Camarena,
        344 Or 28, 176 P3d 380 (2008) ................................................................................... 41
State v. Campbell,
        218 Or App 171, __ P3d __ (2008) ....................................................................... 19, 96
State v. Caprar,
        214 Or App 434, 166 P3d 567 (2007) ................................................................. 72, 102
State v. Carr,
        215 Or App 306, 170 P3d 563 (2007),
        rev den, 344 Or 109 (2008) ......................................................................... 8, 17, 21, 92
State v. Carroll,
        212 Or App 317, 157 P3d 1193 (2007) ....................................................................... 94
State v. Carson,
        211 Or App 606, 156 P3d 71 (2007) ........................................................................... 76
State v. Casey,
        215 Or App 76, 168 P3d 315 (2007) ......................................................................... 106
State v. Casiano,
        214 Or App 509, 166 P3d 599 (2007) ............................................... 4, 9, 10, 82, 84, 92
State v. Castilleja,
        215 Or App 235, 168 P3d 1177 (2007),
        rev allowed, 344 Or 109 (2008) .................................................................................. 69
State v. Cervantes-Oropeza,
        215 Or App 518, 170 P3d 1114 (2007) ................................................................. 45, 85
State v. Chelson,
        212 Or App 132, 157 P3d 258 (2007) ................................................................... 14, 29
State v. Choin,
        218 Or App 333, __ P3d __ (2008) ......................................................................... 7, 34
State v. Claborn,
        213 Or App __, __ P3d __ (July 11, 2007) ................................................................. 58
State v. Clapper,
        216 Or App 413, 173 P3d 1235 (2007) ................................................................... 1, 68

                                                                 ix
State v. Clark,
        217 Or App 475, 175 P3d 1006 (2008) ................................................................. 11, 38
State v. Clelland,
        __ Or App __, __ P3d __ (July 11, 2007) ............................................................. 35, 78
State v. Clum,
        216 Or App 1, 171 P3d 980 (2007) ................................................................. 5, 96, 100
State v. Cone,
        218 Or App 273, __ P3d __ (2008) ................................................................... 7, 74, 81
State v. Conklin/Betts/Land,
        __ Or App __, __ P3d __ (July 11, 2007) ............................................................. 34, 78
State v. Cottrell,
        215 Or App 276, 168 P3d 1200,
        rev den, 343 Or 554 (2007) ................................................................................. 14, 102
State v. Cox,
        212 Or App 637, 159 P3d 352 (2007) ................................................................. 16, 100
State v. Crawford,
        215 Or App 544, 171 P3d 974 (2007),
        rev den, 344 Or 280 (2008) ................................................................................. 87, 106
State v. Crocker,
        217 Or App 238, 174 P3d 1129 (2007) ............................................................. 4, 79, 92
State v. Davis,
        216 Or App 456, 174 P3d 1022 (2007) ................................................................. 13, 95
State v. Davis,
        211 Or App 550, 156 P3d 93 (2007) ........................................................................... 44
State v. Delp,
        218 Or 17, __ P3d __ (2008) ................................................................................. 19, 96
State v. Dollarhide,
        214 Or App 329, 164 P3d 1222 (2007) ......................................................................... 9
State v. Dominguez-Coronado,
        215 Or App 7, 168 P3d 291 (2007) ......................................................................... 8, 92
State v. Dragowsky,
        215 Or App 377, 169 P3d 1271,
        rev den, 343 Or 690 (2007) ......................................................................................... 24
State v. Duffy,
        216 Or App 47, 171 P3d 988 (2007) ................................................................. 1, 54, 63
State v. Dunlap,
        215 Or App 46, 168 P3d 295 (2007) ............................................................... 19, 70, 96
State v. Edwards-Peecher,
        __ Or App __, __ P3d __ (March 5, 2008) ................................................................. 39



                                                                   x
State v. Ennis,
        212 Or App 240, 158 P3d 510 (2007) ................................................................... 12, 42
State v. Essex,
        215 Or App 527, 170 P3d 1094 (2007) ..................................................................... 107
State v. Ferrara,
        218 Or App 57, __ P3d __ (2008) ......................................................................... 71, 89
State v. Foreman,
        212 Or App 109, 157 P3d 228 (2007) ............................................................... 9, 39, 43
State v. Forker,
        214 Or App 622, 168 P3d 279 (2007),
        rev den, 344 Or 280 (2008) ......................................................................................... 69
State v. Forrest,
        213 Or App 151, 159 P3d 1286 (2007) ................................................................. 77, 85
State v. Foust,
        215 Or App 649, 170 P3d 1118 (2007),
        rev den, 344 Or 280 (2008) ....................................................................................... 103
State v. Fries,
        212 Or App 220, 159 P3d 10 (2007) ............................................................. 29, 35, 101
State v. Fults,
        343 Or 515, 173 P3d 822 (2007) ............................................................................... 4, 6
State v. Gallegos,
        217 Or App 248, 174 P3d 1086 (2007) ............................................................. 3, 79, 92
State v. Gonzales-Gutierrez,
        216 Or App 97, 171 P3d 384 (2007),
        rev den, 344 Or 194 (2008) ..................................................................... 50, 56, 87, 104
State v. Gonzalez,
        212 Or App 1, 157 P3d 266 (2007) ........................................................... 43, 77, 79, 86
State v. Graves,
        212 Or App 196, 157 P3d 295 (2007) ................................................................... 13, 43
State v. Greenough,
        216 Or App 426, 173 P3d 1227 (2007),
        rev den, 344 Or 280 (2008) ......................................................................................... 31
State v. Gruhlke,
        213 Or App __, __ P3d __ (July 11, 2007) ....................................................... 2, 29, 99
State v. Guerrero,
        216 Or App 173, 171 P3d 392 (2007) ................................................................. 53, 103
State v. Guerrero,
        213 Or App __, __ P3d __ (July 11, 2007) ................................................................. 71
State v. Hammond,
        __ Or App __, __ P3d __ (March 19, 2008) ......................................... 5, 36, 84, 86, 92


                                                                  xi
State v. Harding,
        213 Or App 536, __ P3d __ (2007) ............................................................................. 49
State v. Hartford,
        213 Or App 331, __ P3d __ (2007) ............................................................................. 89
State v. Heckathorne,
        218 Or App 283, __ P3d __ (2008) ............................................................................. 67
State v. Hess,
        342 Or 647, 159 P3d 309 (2007) ......................................................... 36, 40, 73, 85, 91
State v. Hobbs,
        218 Or App 298, __ P3d __ (2008) ....................................................................... 10, 38
State v. Holcomb,
        213 Or App 168, 159 P3d 1271 (2007) ................................................................. 12, 20
State v. Hollinquest,
        212 Or App 488, 157 P3d 1238 (2007) ................................................................. 78, 94
State v. Howard/Dawson,
        342 Or 635, 157 P3d 1189 (2007) ......................................................................... 67, 69
State v. Hutchins,
        214 Or App 260, 164 P3d 318 (2007),
        rev allowed, 344 Or 280 (2008) .......................................................... 2, 19, 29, 52, 106
State v. Ice,
        343 Or 248, 170 P3d 1049 (2007) ......................................................................... 73, 80
State v. Ivie,
        213 Or App 198, 159 P3d 1257 (2007) ............................................... 83, 84, 86, 89, 91
State v. Jackson,
        212 Or App 51, 157 P3d 239 (2007) ................................................................... 67, 101
State v. Jacob,
        344 Or 181, __ P3d __ (2008) ..................................................................................... 82
State v. Johnson,
        215 Or App 1, 168 P3d 312,
        rev den, 343 Or 366 (2007) ......................................................................................... 66
State v. Johnson,
        212 Or App 135, 157 P3d 295 (2007) ......................................................................... 78
State v. Johnson,
        213 Or App 83, 159 P3d 1213 (2007) ............................................................. 21, 29, 49
State v. Johnson,
        215 Or App 1, 168 P3d 312, rev den 343 Or 366 (2007) ............................................ 92
State v. Johnson,
        342 Or 596, __ P3d __ (2007) ................................................................. 18, 27, 37, 104
State v. Jones,
        217 Or App 110, 174 P3d 1037 (2007) ......................................................................... 5

                                                                  xii
State v. Kayfes,
        213 Or App 543, __ P3d __ (2007) ......................................... 12, 39, 55, 72, 75, 78, 88
State v. Kirsch,
        215 Or 67, 168 P3d 318 (2007) ................................................................................... 31
State v. Knight,
        343 Or 469, 173 P2d 1210 (2007) ........................................................................... 5, 65
State v. Kuznetsov,
        215 Or App 533, 170 P3d 1130 (2007),
        rev allowed, 344 Or __ (2008) ...................................................................................... 2
State v. Lang,
        215 Or App 15, 168 P3d 310 (2007) ..................................................................... 28, 53
State v. Lewis,
        217 Or App 56, 174 P3d 1043 (2007) ......................................................................... 66
State v. Link,
        213 Or App __, __ P3d __ (July 11, 2007) ........................................................... 88, 94
State v. Liston,
        212 Or App 703, 159 P3d 335 (2007) ................................................................... 16, 98
State v. Loftin,
        218 Or App 160, __ P3d __ (2008) ....................................................................... 74, 81
State v. Lonergan,
        344 Or 15, 176 P3d 374 (2008) ................................................................................... 35
State v. Lucas,
        213 Or App 277, __ P3d __ (2007) ............................................................................. 38
State v. Luers,
        211 Or App 34, 153 P3d 688,
        aff’d on recon 213 Or App 389, __ P3d __ (2007) ..................... 15, 57, 69, 88, 95, 106
State v. Magana,
        212 Or App 553, 159 P3d 1163 (2007) ............................................... 2, 30, 67, 76, 105
State v. Mallory,
        213 Or App 392, __ P3d __ (2007) ................................................................. 75, 84, 93
State v. Marroquin,
        215 Or App 330, 168 P3d 1246 (2007) ......................................................................... 8
State v. Matviyenko,
        212 Or App 125, 157 P3d 268 (2007) ................................................................... 32, 64
State v. Maxwell,
        213 Or App 162, 159 P 3d 1255 (2007) ...................................................................... 17
State v. McCrorey,
        216 Or App 301, 172 P3d 271 (2007) ......................................................................... 51
State v. McDonnell,
        343 Or 557, 176 P3d 1236 (2007) ......................................................... 5, 6, 26, 98, 104

                                                                 xiii
State v. Means,
        213 Or App 268, __ P3d __ (2007) ........................................................................... 106
State v. Mersman,
        216 Or App 194, 172 P3d 654 (2007),
        rev den, 344 Or __ (2008) ................................................................................... 33, 100
State v. Miller,
        214 Or App 494, 166 P3d 591 (2007),
        adh’d to on recon, 217 Or App 576, 176 P3d 425 (2008) .................................... 12, 65
State v. Miller,
        211 Or App 667, 156 P3d 125 (2007) ................................................................... 15, 68
State v. Miller,
        213 Or App 237, 159 P3d 1293 (2007) ............................................................. 9, 16, 54
State v. Moller,
        217 Or App 49, 174 P3d 1063 (2007) ................................................................. 11, 104
State v. Montgomery,
        216 Or App 221, 172 P3d 279 (2007) ......................................................................... 23
State v. Montgomery,
        217 Or App 139, 174 P3d 1040 (2007) ....................................................................... 11
State v. Morris,
        217 Or App 271, 174 P3d 1129 (2007) ................................................................... 8, 90
State v. Murray,
        343 Or 48, __ P3d __ (2007) ................................................................................. 15, 60
State v. Myers,
        __ Or App __, __ P3d __ (March 19, 2008) ................................................... 50, 77, 82
State v. Nave,
        214 Or App 324, 164 P3d 1219 (2007) ............................................................. 4, 21, 93
State v. Neill,
        216 Or App 499, 173 P3d 1262 (2007) ................................................................. 56, 71
State v. Nelson,
        __ Or App __, __ P3d __ (March 19, 2008) ..................................................... 7, 63, 86
State v. Neubauer,
        213 Or App __, __ P3d __ (July 11, 2007) ................................................................. 97
State v. Norby,
        __ Or App __, __ P3d __ (March 19, 2008) ......................................................... 10, 41
State v. Norkeveck,
        214 Or App 553, 168 P3d 265 (2007) ................................................. 30, 37, 44, 57, 70
State v. Norman,
        216 Or App 475, 174 P3d 598 (2007) ....................................................... 38, 53, 57, 78




                                                                xiv
State v. Olivar,
        216 Or App 126, 171 P3d 1006 (2007),
        rev den, 344 Or 110 (2008) ..................................................................................... 5, 19
State v. Olstad,
        __ Or App __, __ P3d __ (March 19, 2008) ............................................................... 99
State v. Pachmayr,
        213 Or App __, __ P3d __ (July 5, 2007) ..................................................................... 2
State v. Pauley,
        211 Or App 674, 156 P3d 128 (2007) ................................................................... 10, 55
State v. Petri,
        213 Or App __, __ P3d __ (July 11, 2007) ....................................... 14, 68, 70, 71, 102
State v. Phillips,
        217 Or App 93, 174 P3d 1032 (2007) ......................................................................... 37
State v. Pleasant,
        212 Or App 697, 159 P3d 337 (2007) ......................................................................... 90
State v. Prew,
        213 Or App 336, __ P3d __ (2007) ................................................................. 32, 55, 72
State v. Purdom,
        __ Or App __, __ P3d __ (March 19, 2008) ............................................................... 98
State v. Rambert,
        216 Or App 39, 171 P3d 398 (2007) ....................................................................... 1, 54
State v. Ramirez,
        343 Or 505, 173 P3d 817 (2007) ................................................................................... 7
State v. Ramsey,
        215 Or App 434, 173 P3d 142 (2007),
        rev den, 344 Or 194 (2008) ................................................................................. 51, 105
State v. Raney,
        215 Or App 339, 168 P3d 803 (2007), mod on recon,
        217 Or App 470, 175 P3d 1024 (2008) ..................................................................... 103
State v. Raney,
        217 Or App 470, 175 P3d 1024 (2008) ................................................................... 8, 13
State v. Reed,
        __ Or App __, __ P3d __ (July 11, 2007) ................................................................... 90
State v. Rennells,
        213 Or App 423, __ P3d __ (2007) ..................................................................... 66, 100
State v. Rettman,
        218 Or App 179, __ P3d __ (2008) ............................................................................. 81
State v. Reyes-Mauro,
        217 Or App 315, 175 P3d 998 (2007) ................................................................... 11, 58



                                                                 xv
State v. Rich,
        __ Or App __, __ P3d __ (March 19, 2008) ......................................................... 21, 30
State v. Rider,
        216 Or App 308, 172 P3d 274 (2007) ......................................................................... 71
State v. Roberts,
        216 Or App 238, 172 P3d 651(2007) ................................................................ 4, 33, 93
State v. Rodriguez,
        217 Or 24, 175 P3d 471 (2007) ....................................................................... 32, 76, 82
State v. Rodriguez-Barrera,
        213 Or App 56, 159 P3d 1201 (2007) ................................................................... 35, 78
State v. Ruggles,
        214 Or App 612, 167 P3d 471,
        adh’d to on recon, 217 Or App 384, 175 P3d 502 (2007),
        rev den, 344 Or 280 (2008) ............................................................................. 34, 40, 42
State v. Rutley,
        343 Or 368, 171 P3d 361 (2007) ..................................................................... 33, 59, 77
State v. Sanders,
        343 Or 35, __ P3d __ (2007) ................................................................................. 76, 90
State v. Sandoval,
        342 Or 506, 156 P3d 60 (2007) ..................................................................... 28, 53, 100
State v. Savage,
        214 Or App 343, 164 P3d 1202 (2007) ........................................................... 18, 60, 64
State v. Schenewerk,
        217 Or App 243, 174 P3d 1117 (2007) ............................................................. 3, 79, 92
State v. Scott,
        343 Or 195, 166 P3d 528 (2007) ........................................................................... 18, 64
State v. Shaff,
        343 Or 639, 175 P3d 454 (2007) ................................................................................. 18
State v. Shelly,
        212 Or App 65, 157 P3d 234 (2007) ..................................................................... 13, 37
State v. Shelton,
        __ Or App __, __ P3d __ (March 19, 2008) ......................................................... 10, 41
State v. Simons,
        214 Or App 675, 167 P3d 476 (2007),
        rev den, 344 Or 43 (2008) ..................................................................................... 19, 97
State v. Sine,
        214 Or App 656, 167 P3d 485 (2007) ......................................................................... 42
State v. Skanes,
        212 Or App 169, 157 P3d 303 (2007) ................................................................... 75, 80



                                                                 xvi
State v. Smith,
        __ Or App __, __ P3d __ (March 19, 2008) ............................................................... 60
State v. Smith,
        218 Or App 278, __ P3d __ (2008) ................................................................... 7, 74, 81
State v. Soto-Nunez,
        211 Or App 545, 155 P3d 96 (2007) ............................................................... 76, 84, 94
State v. Steen,
        215 Or App 635, 170 P3d 1126 (2007) ................................................................... 8, 92
State v. Sullivan,
        217 Or App 208, 174 P3d 1095 (2007) ............................................................... 42, 104
State v. Tanner,
        210 Or App 70, 150 P3d 31 (2006) ....................................................................... 76, 81
State v. Terry,
        __ Or App __, __ P3d __ (July 11, 2007) ................................................. 21, 33, 77, 91
State v. Thorpe,
        217 Or App 301, 175 P3d 993 (2007) ......................................................................... 89
State v. Toth,
        213 Or App 505, __ P3d __ (2007) ....................................................................... 80, 93
State v. Travalini,
        215 Or App 226, 168 P3d 1159 (2007),
        rev den, 344 Or 110 (2008) ................................................................................... 60, 77
State v. Tyler,
        218 Or App 105, __ P3d __ (2008) ............................................................................. 71
State v. Tyler,
        213 Or App 109, 159 P3d 1218 (2007) ............................................................... 4, 6, 35
State v. Vargas-Garcia,
        217 Or App 70, 174 P3d 1046 (2007) ......................................................................... 31
State v. Walch,
        218 Or App 86, __ P3d __ (2008) ......................................................... 8, 58, 66, 74, 81
State v. Walraven,
        214 Or App 645, 167 P3d 1003 (2007),
        rev den, 344 Or 280 (2008) ................................................................................... 51, 87
State v. Walton,
        215 Or App 628, 170 P3d 1122 (2007) ................................................................. 20, 23
State v. Washburn,
        216 Or App 261, 173 P3d 156 (2007) ......................................................................... 72
State v. Watters,
        211 Or App 628, 156 P3d 145 (2007) ....................................................... 3, 30, 51, 107




                                                                xvii
State v. Weaver,
        214 Or App 633, 168 P3d 273,
        rev den, 343 Or 691 (2007) ............................................................................. 56, 70, 71
State v. Wheeler,
        343 Or 652, 175 P3d 438 (2007) ........................................................................... 76, 85
State v. White,
        217 Or App 214, 175 P3d 504 (2007) ................................................. 66, 74, 80, 83, 87
State v. Wick,
        216 Or App 404, 173 P3d 1231 (2007) ....................................................................... 74
State v. Williamson,
        214 Or App 281, 164 P3d 315,
        rev den, 343 Or 554 (2007) ................................................................................... 28, 34
State v. Wilson,
        216 Or App 226, 173 P3d 150 (2007),
        rev den, 344 Or __ (2008) ....................................................... 11, 50, 53, 60, 75, 81, 87
State v. Wittwer,
        214 Or App 459, 166 P3d 564 (2007) ......................................................................... 57
State v. Wyant,
        217 Or App 199, 175 P3d 988 (2007) ............................................................... 3, 32, 36
State v. Xocua-Xicalhua,
        213 Or App 581, __ P3d __ (2007) ............................................................................. 89
Trotter v. Santos,
        212 Or App 473, 157 P3d 1233 (2007) ........................................................... 13, 59, 63
Uttecht v. Brown,
       551 US __, 127 S Ct 2218, 167 L Ed 2d 1014 (2007) .......................................... 24, 47
Whorton v. Bockting,
      549 US __, 127 S Ct 1173, 167 L Ed 2d 1 (2007) ................................................ 22, 40
Wright v. Van Patten,
       552 US __, 128 S Ct __, 169 L Ed 2d 583 (2008) ................................................ 45, 46




                                                                xviii
ACCOMPLICES

         State v. Rambert, 216 Or App 39, 171 P3d 398 (2007). Defendant was convicted on two counts
of second-degree assault with a firearm based on his shooting of the victim in a Burger King parking lot.
Defendant‘s girlfriend, who had handed defendant the gun and, after the shooting, drove defendant from
the scene, testified on defendant‘s behalf at trial. Her version of the events was that the defendant was
being attacked by a group of men when the victim approached him and appeared to be reaching for a
weapon. At trial, the state requested the statutory accomplice-witness jury instruction in ORS 10.095,
which states that, if the jurors determined that the girlfriend was an accomplice—i.e., that she could be
charged with the crime—they should view her testimony ―with distrust.‖ Defendant did not dispute that
there was evidence from which the jury could find that the girlfriend was an accomplice. Rather, he
asserted that the accomplice-witness instruction is proper only when the accomplice is attempting to
shift blame to the defendant. The trial court overruled his objection and gave the instruction. The jury
convicted defendant and he appealed. Held: Reversed. Accomplice-witness instructions are proper only
when the witness implicates the defendant in criminal conduct, not when the witness exculpates the
defendant. Under State v. Simson, 308 Or 102 (1989), and State v. Oatney, 335 Or 276 (2003), the
accomplice-witness instructions are intended to guard against accomplices who may falsely accuse
others to minimize their own culpability. Those concerns do not exist where the witness‘s testimony is
primarily exculpatory in nature.

         State v. Boone, 213 Or App 242, 160 P3d 944, on recon, 215 Or App 428, 169 P3d 1274 (2007).
Defendant helped a group of other known burglars commit burglaries of storage trailers. An
accomplice, Monk, initially identified defendant as one of the burglars, but testified that defendant did
not participate in the burglaries. Defendant admitted to the police to being at the scene where the
burglaries were committed, to knowing that Monk was burglarizing the storage trailers and how Monk
broke into the trailers, to driving the stolen property off the site, and to helping Monk sand off the serial
numbers of the stolen items after the burglary. Held: The state presented sufficient evidence that
defendant aided and abetted the burglaries. With respect to another series of burglaries that Monk
testified defendant did help commit, the state introduced sufficient evidence to corroborate Monk‘s
testimony, even though that evidence was slight and circumstantial. In defendant‘s situation, the stolen
items were found in defendant‘s residence, which was sufficient to corroborate Monk‘s testimony.

ACCUSATORY INSTRUMENTS
    See also ―Demurrers,‖ below.

         State v. Clapper, 216 Or App 413, 173 P3d 1235 (2007). A Uniform Fish/Wildlife Citation and
Complaint adequately advised defendant of the violation charge, as required by ORS 153.048. The
trooper listed the statute violated, wrote in the description box ―UPCS < 1 ounce marijuana,‖ and listed
the base fine as ―$1,000.‖ Although he inaccurately checked the box indicating ―[n]o culpable mental
state,‖ the complaint adequately advised defendant that he was charged with a violation of
ORS 275.992(4)(f), which prohibits the ―knowing[] or intentional[] possession of less than [one ounce
of marijuana].‖

        State v. Duffy, 216 Or App 47, 171 P3d 988 (2007). Defendant was charged with engaging in
unlawful prostitution procurement activities, in violation of Portland City Code § 14A.40.050.
Defendant filed a demurrer to the complaint—which was alleged in the language of the ordinance—
alleging that it did not give her sufficient notice of the factual allegations that would allow her to prepare
her defense. The trial court disallowed the demurrer, concluding that any lack of sufficiency in the
accusatory instrument was cured by the discovery, which specifically described defendant‘s conduct.
Defendant argued that the activities listed in the ordinance constituted separate crimes. Held: Affirmed.
2

Discovery materials put defendant on notice of the acts underlying the charge. Although the complexity
of a charge or the volume of potential discovery materials may make it impractical to rely on discovery
to remedy any imprecision in an accusatory instrument, the charge in this case is straightforward, it
involved activities by one defendant in one location, and the discovery and its details are minimal.

         State v. Kuznetsov, 215 Or App 533, 170 P3d 1130 (2007), rev allowed, 344 Or __ (2008). The
trial court correctly rejected defendant‘s argument that the prosecutor lacked authority to amend the
―substance‖ of a misdemeanor information under Art. VII (Am), § 5(6) and State v. Wimber, 315 Or 103
(1992). The Wimber rule arises from the right to a grand jury; a misdemeanor defendant has no right to
grand-jury indictment. In addition, the context and history of Art. VII (Am), § 5(6), demonstrate that it
was not intended to restrict the charging of misdemeanors.

         State v. Hutchins, 214 Or App 260, 164 P3d 318 (2007), rev allowed, 344 Or 280 (2008). The
trial court correctly disallowed defendant‘s demurrer to the charge of being an inmate in possession of a
weapon under ORS 166.275, despite defendant‘s argument that the statutory definition of ―weapon‖ as
any ―sharp instrument‖ is unconstitutionally vague. The terms ―sharp‖ and ―instrument‖ are words of
common understanding, and that they are sufficiently precise to avoid any vagueness challenge.

        State v. Gruhlke, 214 Or App 169, 162 P3d 380 (2007). Two years after the date of the DUII
offense, the state filed an ―amended‖ indictment that did not allege any facts to avoid the statute of
limitations. The trial court overruled defendant‘s demurrer, and he entered a conditional guilty plea.
Held: Reversed. The indictment was defective because it failed allege facts to establish that prosecution
had been commenced within the statute of limitations, as required by ORS 132.540(1)(c).

        State v. Pachmayr, 213 Or App 665, 162 P3d 347, rev allowed, 343 Or 363 (2007). Defendant
was charged with three counts of second-degree assault based on injuries based on a vehicular accident.
The third count erroneously alleged defendant caused the victim‘s injuries by means of a ―deadly
weapon‖ as opposed to a ―dangerous weapon.‖ The trial court granted the state‘s motion to amend the
indictment by interlineation, concluding that the error was a ―scrivener‘s error.‖ Held: Reversed. The
amendment was improper, because the amendment was a material change to the substance of the
indictment.

         State v. Burns, 213 Or App 38, 159 P3d 1208 (2007), rev allowed, 344 Or 280 (2008).
Defendant was indicted for felony hit and run. Rather than filing a demurrer, he waited until after trial
and moved for an arrest of judgment, under ORS 136.500, contending that the indictment to allege a
culpable mental state with regard to physical injury resulting from the collision. Held: Affirmed.
[1] When the sufficiency of an indictment is challenged by way of a demurrer, it is strictly construed
against the state, but if the defendant challenges the sufficiency of the indictment only after a verdict,
the language of the indictment is given a more liberal construction, and such a motion can succeed only
if ―the indictment wholly fails to state ‗any crime known to law.‘‖ [2] Because the charge tracked the
language of the statute, a person of common understanding could reasonably be expected to know what
is intended.

        State v. Magana, 212 Or App 553, 159 P3d 1163, rev den, 343 Or 363 (2007). Defendant, a
police officer, was charged with inter alia identical multiple counts of official misconduct and coercion.
He demurred to those counts on the ground that the indictment failed to inform him of what conduct was
alleged to constitute the violations. Defendant argued that the discovery provided by the state was too
voluminous to read. Held: [1] The mere fact that a defendant may be provided with a large amount of
discovery does not establish that the discovery as a matter of law was insufficient. Defendant failed to
make an offer of proof of how the discovery failed to illuminate the indictment. [2] For demurrer
                                                                                                       3

purposes, a criminal defendant is expected to read the indictment as a whole. Because it appeared that
the official misconduct and coercion charges were grouped with charges involving the same victim, a
person of ordinary understanding would recognize that the acts underlying the charges surrounding a
particular victim also formed the basis for the official misconduct and coercion charges.

        State v. Watters, 211 Or App 628, 156 P3d 145, rev den, 343 Or 186 (2007). Defendants, who
are members of the Nez Perce Tribe, were arrested for killing two elk out of season on private property.
Relying on an 1855 treaty between the Nez Perce and the United States stating that the members of the
tribe may continue to hunt on any ―open and unclaimed land‖ that was part of their original hunting
grounds, they filed both a demurrer and a motion to dismiss on that ground, and on the grounds that the
federal courts and tribal courts had exclusive jurisdiction to interpret treaties and that the accusatory
instruments did not allege that the defendants were Nez Perce members and that the treaty was not
applicable. Held: Affirmed. The state is not required to negate defenses in an accusatory instrument,
and thus was not required to allege defendants‘ status as tribal members.

APPEALS
     See also ―Sentencing: appeal,‖ below.

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

         Bowles v. Russell, 551 US __, 127 S Ct 2360, 168 L Ed 2d 96 (2007). Petitioner was convicted
of murder, and the state courts affirmed the judgment. The district court denied his petition for habeas
corpus relief and entered a final judgment on September 9, 2003. Petitioner failed to file his notice of
appeal within the prescribed 30-day period. On December 12, petitioner moved under FRAP 4(a)(6) to
reopen the appeal period for 14 days to allow him to file an untimely notice of appeal. On February 10,
2004, the district court granted that request, but the order inexplicably gave him 17 days, until February
27, to file his notice appeal. Petitioner filed his notice on February 27. The Sixth Circuit dismissed his
appeal. Held: Affirmed. [1] Filing a notice of appeal within the prescribed period is mandatory and
jurisdictional. Petitioner failed to file his notice within the 14-day period allowed by the rule, and it is
immaterial that the order inadvertently purported to grant him 17 days. Consequently, his appeal must
be dismissed. [2] ―Because this Court has no authority to create equitable exceptions to jurisdictional
requirements, use of the ‗unique circumstances‘ doctrine is illegitimate [overruling those cases].‖

        Appeals: cross-appeal

         State v. Wyant, 217 Or App 199, 175 P3d 988 (2007). The state appealed from a pretrial order
pursuant to ORS 138.060, and the Court of Appeals declined to review the issue raised by defendant‘s
cross-appeal, concluding that that issue was not inextricably entwined with the issue involved in the
state‘s appeal.

        Appeals: scope of review

        State v. Gallegos, 217 Or App 248, 174 P3d 1086 (2007). Defendant‘s challenges to the use of
unenumerated aggravating factors are reviewable, even in an appeal from a judgment entered on a
conviction based on guilty plea, under ORS 138.050 and ORS 138.222(4). The court rejected the state‘s
argument that defendant‘s claim is barred by ORS 138.050 (limiting appeals based on a guilty plea) and
ORS 138.222(4) (court can review claim that the sentencing court ―failed to comply with the
requirements of law in imposing or failing to impose a sentence‖), citing State v. Stubbs, 193 Or App
595, 91 P3d 774, rev den 337 Or 669 (2004), and State v. Arnold, 214 Or App 201, 164 P3d 334 (2007).
        See also State v. Schenewerk, 217 Or App 243, 174 P3d 1117 (2007) (rejecting state‘s similar
4

reviewability arguments); State v. Crocker, 217 Or App 238, 174 P3d 1129 (2007) (same).

        State v. Anderson, 215 Or App 643, 171 P3d 972 (2007). When defendant was 16 years old, he
engaged in sexual intercourse with an 11-year-old girl. Pursuant to an agreement with the district
attorney, he agreed to admit in juvenile court to conduct that would constitute harassment, and to be
placed on probation for three years. In addition, he agreed to plead guilty in adult court to the charge of
attempted first-degree rape, with the proviso that the court would not enter the conviction and that he
would not be sentenced if he complied with certain conditions of probation. Based on violations
committed within the first 16 months of probation, the court found that defendant had failed to meet the
conditions of his plea agreement and entered the conviction for attempted first-degree rape and imposed
a 60-month prison sentence. Defendant appealed, arguing that he did not breach the plea agreement.
Held: Appeal dismissed. Only the legality of the sentence is reviewable in an appeal from a conviction
based on a guilty plea. Under ORS 138.050, defendant‘s challenge—which relates to the entry of the
plea, and not the sentence—is not reviewable.

        State v. Casiano, 214 Or App 509, 166 P3d 599 (2007). Appellate review of the sentencing
court‘s erroneous application of ORS 137.635 to deny eligibility for leave and other programs during the
service of the sentence is not foreclosed by ORS 138.222(2)(a). Although ORS 138.222(2)(a) precludes
appellate review of the length of a sentence that is within the presumptive guidelines range for the
offense, it does not preclude the appellate courts from reviewing other aspects of the sentence, such as
the defendant‘s eligibility for subsequent modifications of the sentence by the Department of
Corrections or other supervisory authority.

        State v. Nave, 214 Or App 324, 164 P3d 1219 (2007). A revocation of driving privileges is part
of the ―disposition‖ that is reviewable in an appeal based on a guilty plea.
        See also State v. Roberts, 216 Or App 238, 172 P3d 651 (2007) (same).

         State v. Burns, 213 Or App 38, 159 P3d 1208 (2007), rev allowed, 344 Or 280 (2008).
Defendant was indicted for felony hit and run. Rather than filing a demurrer, he waited until after trial
and moved for an arrest of judgment, under ORS 136.500, contending that the indictment to allege a
culpable mental state with regard to physical injury resulting from the collision. Held: Affirmed. When
the sufficiency of an indictment is challenged by way of a demurrer, it is strictly construed against the
state, but if the defendant challenges the sufficiency of the indictment only after a verdict, the language
of the indictment is given a more liberal construction, and such a motion can succeed only if ―the
indictment wholly fails to state ‗any crime known to law.‘‖ Because the charge tracked the language of
the statute, a person of common understanding could reasonably be expected to know what is intended.

        Appeals: invited error

        State v. Fults, 343 Or 515, 173 P3d 822 (2007). Even if the term of probation imposed by the
sentencing court was plain error, the statement by the Court of Appeal that ―the state has no valid
interest‖ in an unlawful sentence was insufficient to justify its exercise of discretion. The court‘s failure
to consider other factors—including defendant‘s apparent encouragement of the judge‘s sentencing
choice, the possibility that defendant made a strategic decision not to object, the fact that the 36-month
term would be served concurrently with another probationary term, and the interest of the judicial
system in avoiding unnecessary repetitive sentencing proceedings, as well as its interest in requiring
preservation of error—required a remand for reconsideration.

        State v. Tyler, 213 Or App 109, 159 P3d 1218 (2007). Prior to trial, the defendant moved to
introduce evidence suggesting that another sex offender, who was present in defendant‘s home, had
                                                                                                       5

sexually abused the victim, who was partially asleep at the time. The trial court preliminarily indicated
the offered evidence was not admissible but reserved ruling until during the trial. Defendant did not
renew the issue at trial and, in fact, told the court he thought the court had excluded the evidence. Held:
Defendant failed to preserve his issue because he failed to obtain an actual ruling from the trial court.
Defendant invited any trial court error. Invited error occurs ―when a party consciously or actively
invites the trial court to rule in a particular way.‖

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

         State v. McDonnell, 343 Or 557, 176 P3d 1236 (2007). In defendant‘s original aggravated-
murder trial, he had filed a motion under ORS 14.250 to disqualify one judge from presiding over his
trial. That judge recused himself from the case in response to that motion; however, after a 1999
remand by the Supreme Court for the fourth penalty-phase proceeding, the previously disqualified judge
was assigned to the case and presided over the penalty-phase retrial. Defendant did not object, but, on
appeal, asserted that his disqualification from the case rendered the judgment void. Held: Affirmed.
By failing to object, defendant waived any challenge based on the judge‘s previous disqualification.
The disqualification of the judge from any ―suit, action, matter or proceeding‖ under ORS 14.250
extends to both the guilt phase and any penalty phase of an aggravated-murder trial; thus, the court‘s
conduct in presiding over the retrial rendered the judgment ―voidable,‖ and not ―void‖ as a matter of
law. Because the record is subject to competing interests (for example, it is possible that the defendant,
in 2002, preferred this judge over the other available circuit-court judges), the court refused to exercise
its discretion to review the claim as plain error.

       State v. Knight, 343 Or 469, 173 P2d 1210 (2007). Defense counsel adequately preserved a
challenge to the admission of derogatory statements contained in a tape recording of other statements
made by defendant, despite the fact that he did not identify the specific statements to which he objected.
The court rejected the state‘s argument that defense counsel‘s objection was focused on the recording as
a whole and did not adequately put the trial court on notice as to precisely what material could or should
be redacted.

         State v. Hammond, __ Or App __, __ P3d __ (March 19, 2008). Defendant‘s act of filing of an
ORS 137.754 motion after the execution of sentence in an attempt to convince the sentencing court to
make the required findings of ―substantial and compelling reasons‖ to support its order denying
eligibility for alternative sentencing programs did not ―retroactively‖ preserve a claim of error for
appeal.

        State v. Jones, 217 Or App 110, 174 P3d 1037 (2007). By arguing only that she did not
consent, defendant failed to preserve any argument that her consent was the product of an unlawful
extension of a traffic stop. ―[N]ot only would it be improper to reverse the trial court‘s decision on
grounds that it did not have an opportunity to consider, it would also be unfair to the state to reverse on
grounds that it did not have an opportunity or occasion to oppose.‖

       State v. Olivar, 216 Or App 126, 171 P3d 1006 (2007), rev den, 344 Or 110 (2008). Although
defendant had moved to suppress a particular set of statements, his challenge on appeal was
unpreserved, because he changed his argument on appeal. Because the trial court was not alerted to the
substance of defendant‘s position on appeal, the Court of Appeals refused to review it.

         State v. Clum, 216 Or App 1, 171 P3d 980 (2007). Although defendant improperly raised the
legal issue about the application of the failure-to-report statute in a motion for a judgment of acquittal—
6

which would have been properly granted only if there were no issue of fact for the jury—this was a
bench trial, and the trial court was adequately apprised of defendant‘s argument about whether the
registration requirement applied, and, in fact, the trial court addressed that argument directly. Thus,
defendant preserved his current argument.

        State v. Tyler, 213 Or App 109, 159 P3d 1218 (2007). Prior to trial, the defendant moved to
introduce evidence suggesting that another sex offender, who was present in defendant‘s home, had
sexually abused the victim, who was partially asleep at the time. The trial court preliminarily indicated
the offered evidence was not admissible but reserved ruling until during the trial. Defendant did not
renew the issue at trial and, in fact, told the court he thought the court had excluded the evidence. Held:
Defendant failed to preserve his issue because he failed to obtain an actual ruling from the trial court.

        Harrison v. Hall, 211 Or App 697, 156 P3d 141, rev den, 343 Or 159 (2007). The post-
conviction court granted defendant‘s motion for summary judgment and dismissed petitioner‘s petition
after he failed to respond to the motion. Held: Affirmed. [1] Even if respondent does contend that the
claim of error is unpreserved, the Court of Appeals has ―an independent obligation to determine whether
an argument advanced on appeal was preserved at trial.‖ [2] Petitioner failed to preserve his claim of
error on appeal by failing to respond to the motion for summary judgment. His reliance on pleadings and
affidavits in the record before the post-conviction court is misplaced because he ―had an obligation to
present argument in opposition or, at minimum, object to the state‘s motion and alert the court as to why
the motion should not have been granted.‖

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

         State v. McDonnell, 343 Or 557, 176 P3d 1236 (2007). In defendant‘s original aggravated-
murder trial, he had filed a motion under ORS 14.250 to disqualify one judge from presiding over his
trial. That judge recused himself from the case in response to that motion; however, after a 1999
remand by the Supreme Court for the fourth penalty-phase proceeding, the previously disqualified judge
was assigned to the case and presided over the penalty-phase retrial. Defendant did not object, but, on
appeal, asserted that his disqualification from the case rendered the judgment void. Held: Affirmed.
By failing to object, defendant waived any challenge based on the judge‘s previous disqualification.
The disqualification of the judge from any ―suit, action, matter or proceeding‖ under ORS 14.250
extends to both the guilt phase and any penalty phase of an aggravated-murder trial; thus, the court‘s
conduct in presiding over the retrial rendered the judgment ―voidable,‖ and not ―void‖ as a matter of
law. Because the record is subject to competing interests (for example, it is possible that the defendant,
in 2002, preferred this judge over the other available circuit-court judges), the court refused to exercise
its discretion to review the claim as plain error.

        State v. Barber, 343 Or 525, 173 P3d 827 (2007). The court reversed defendant‘s conviction
based on the lack of a written jury waiver. Because Art. I, § 11, specifies not only a right to a jury trial
but also the ―only way in which that right may be lost, viz., by a written waiver executed before trial
commences, together with trial court consent,‖ the absence of a written waiver automatically invalidates
a conviction resulting from a bench trial. There is no ―way in which an appellate court may elect … to
refuse to recognize the error or, having recognized it, refuse to correct it.‖

        State v. Fults, 343 Or 515, 173 P3d 822 (2007). Even if the term of probation imposed by the
sentencing court was plain error, the statement by the Court of Appeal that ―the state has no valid
interest‖ in an unlawful sentence was insufficient to justify its exercise of discretion. The court‘s failure
to consider other factors—including defendant‘s apparent encouragement of the judge‘s sentencing
                                                                                                      7

choice, the possibility that defendant made a strategic decision not to object, the fact that the 36-month
term would be served concurrently with another probationary term, and the interest of the judicial
system in avoiding unnecessary repetitive sentencing proceedings, as well as its interest in requiring
preservation of error—required a remand for reconsideration.

         State v. Ramirez, 343 Or 505, 173 P3d 817 (2007). The Court of Appeals erred by granting
relief, in State v. Ramirez, 205 Or App 113, 125 (2006), based on defendant‘s unpreserved Blakely
challenge to the departure sentence, which was based on the court‘s finding—based on undisputed
evidence—that the victim had suffered permanent injury. Even if ―plain error‖ occurred, the Court of
Appeals abused its discretion by reviewing the claim. It wrongly concluded that ―the interests of the
parties‖ weigh in favor of considering defendant‘s argument: defendant‘s interest in having a second
sentencing hearing was minimal, given that the extent of the victim‘s injury (the loss of an eye) was
undisputed; in contrast, the state has a ―significant interest in avoiding a second, unnecessary sentencing
hearing.‖ Finally, given that the victim‘s injury was undisputed, neither the ―gravity‖ of the error nor
the ―interests of justice‖ warranted review of defendant‘s claim.

        State v. Banks, __ Or App __, __ P3d __ (March 19, 2008). Defendant‘s unpreserved challenge
to the imposition of consecutive sentences based on State v. Ice, 343 Or 248 (2007), was reviewable as a
claim of ―plain error.‖ Because of the gravity of the error, and because it was highly unlikely that
defendant made a strategic choice to forgo an objection (and because the trial court would have rejected
it based on the law at the time), the court exercised its discretion to review the claim.

         State v. Nelson, __ Or App __, __ P3d __ (March 19, 2008). The trial court committed plain
error by failing to merge defendant‘s convictions for prostitution in violation of ORS 161.405 and for
unlawful prostitution procurement activities under Portland City Code § 14A.040.050. Unlawful
prostitution procurement activities encompasses acts that would constitute attempted prostitution; thus,
the failure to merge the inchoate crime into the completed crime was error under ORS 161.485(3) (―[a]
person shall not be convicted on the basis of the same course of conduct of both an actual commission
of an offense and an attempt to commit that offense‖).

        State v. Choin, 218 Or App 333, __ P3d __ (2008). The Court of Appeals exercised its
discretion to review defendant‘s unpreserved Art. I, § 11 challenge to the admission of the criminalist‘s
lab report based on State v. Birchfield, 342 Or 624 (2007). Because defendant had made a ―closely
related‖ hearsay objection to the report, the policies of preservation are not offended by review of the
unpreserved claim. And, because the state‘s theory of ―delivery‖ was based solely on the amount of
drugs possessed, the quantity of methamphetamine was central to the state‘s case on the DCS charge.

        State v. Smith, 218 Or App 278, __ P3d __ (2008). The sentencing court committed ―plain
error‖ by imposing consecutive sentences under ORS 137.123(5)(b) (risk of loss, injury or harm to a
different victim) without jury findings to support them; nevertheless, the appellate court declined to
review it because there was no legitimate debate that the UUV involved harm to one victim, and
defendant‘s possession of an altered key created a risk of harm to other victims.

        State v. Cone, 218 Or App 273, __ P3d __ (2008). Although the order imposing consecutive
sentences under ORS 137.123(5)(b) was ―plain error‖ in light of the later decision in State v. Ice, the
Court of Appeals declined to exercise its discretion to correct the error because ―[t]here can be no
doubt‖ that the harm caused by the assault (physical injury to the victim‘s person) was qualitatively
different and greater than the harm caused by the burglary (unlawful entry onto the victim‘s property).
8

        State v. Walch, 218 Or App 86, __ P3d __ (2008). Defendant was not entitled to relief based on
his unpreserved claim that the trial court did not clearly instruct the jurors that, to make affirmative
findings on any fact allowing an enhanced sentence (here, consecutive sentences), they had to make the
finding beyond a reasonable doubt. Although the ―beyond a reasonable doubt‖ standard applies under
Blakely, the trial court‘s preliminary instructions informed the jurors that the state had the ―beyond a
reasonable doubt‖ burden. The trial court did not commit plain error by failing to give a more specific
instruction later.

        State v. Raney, 217 Or App 470, 175 P3d 1024 (2008) (on reconsideration of prior opinion, 215
Or App 339 (2007)). Because defendant may have made a tactical decision not to object to the
admission of the laboratory report, the trial court‘s admission of that evidence without objection on that
basis cannot be said to be ―plain error.‖

        State v. Morris, 217 Or App 271, 174 P3d 1129 (2007). The sentencing court committed plain
error by imposing a $5,000 compensatory fine without proof that the victim suffered a ―pecuniary loss,‖
as required under ORS 137.101. The court rejected the state‘s argument that, if defendant had objected
at sentencing, it may have been able to provide a factual basis for the compensatory-fine award; rather,
it concluded that, because defendant did not ―invite‖ the error, and the amount was significant, the
interests of justice supported its decision to correct the error.

         State v. Steen, 215 Or App 635, 170 P3d 1126 (2007). [1] Although defendant‘s unpreserved
Crawford claim is one of ―plain error,‖ the court must find reasons to exercise its discretion to review it.
In this case, nothing suggests that the state would not have made the victim available if defendant had
raised the issue. Moreover, the prosecutor could have interpreted certain pretrial statements by defense
counsel as an indication that he would not be insisting on the victim‘s in-court testimony. [2] Defendant
waived any challenge to the lack of findings to support consecutive sentences. In a situation in which
the record easily supports findings that support consecutive sentences, the court lacks authority to
consider an unpreserved challenge to the court‘s failure to state its findings.

        State v. Carr, 215 Or App 306, 170 P3d 563 (2007), rev den, 344 Or 109 (2008). Court declined
to review unpreserved challenges to probation conditions prohibiting defendant from using the sidewalk
outside the school, because defendant did not address why the court should exercise its discretion to
review his arguments on appeal. Even if the claim were one of plain error, the court would decline to
review it.

        State v. Marroquin, 215 Or App 330, 168 P3d 1246 (2007). Defendant‘s unpreserved challenge
to the admission of a crime-lab report based on State v. Birchfield, 342 Or 624 (2007), is reviewable on
appeal as one of ―plain error.‖ (Defendant had objected to the admission of the report on federal
Confrontation Clause grounds; thus, the record demonstrates that there was no tactical reason for failing
to make an argument under Art. I, § 11.) The court exercised its discretion to correct the error because
of the gravity of the error (the report was critical to the state‘s case) and because it is unlikely that the
record would have developed differently even if defendant had objected below on § 11 grounds.

        State v. Dominguez-Coronado, 215 Or App 7, 168 P3d 291 (2007). Defendant failed to
preserve his claim that his two DCS convictions were based on the same act of delivery and different
only in their offense-subcategory factors. His claim is not one of plain error because it was possible that
the charges were based on two separate deliveries (the first being an attempted sale to an informant, and
the second based on evidence later found in an apartment), in which case the convictions would not have
merged.
                                                                                                         9

        State v. Casiano, 214 Or App 509, 166 P3d 599 (2007). [1] The sentencing court committed
―plain error‖ by applying ORS 137.635 based on a prior conviction that was entered after defendant‘s
commission of the offense in this case, contrary to State v. Allison, 143 Or App 241, rev den, 324 Or
487 (1996) (ORS 137.635 applies only to person who, at the time of the commission of the second
offense, had already been convicted of a prior listed offense). [2] The order denying eligibility for leave
and programs cannot be affirmed on the ground that the sentencing court would have been permitted to
exercise its discretion to deny eligibility for leave and programs pursuant to ORS 137.750. The record
did not show that, had the sentencing court realized its error regarding ORS 137.635, it nonetheless
would have denied eligibility for leave and programs under ORS 137.750.

         State v. Dollarhide, 214 Or App 329, 164 P3d 1222 (2007). Defendant‘s claim that permanent
revocation was unlawful on a fourth DUII, because ORS 809.235(1)(b) (2003) provided for revocation
if a person is convicted of DUII ―for a third time,‖ is not reviewable because is not preserved and is not
―plain error.‖
         Note: ORS 809.235(1)(b) was amended in 2005 to require revocation on a conviction ―for a
third or subsequent time.‖

         State v. Calvert, 214 Or App 227, 164 P3d 1169 (2007). Defendant challenged her PCS
conviction, arguing that the circuit court erred in denying her motion to suppress evidence obtained
pursuant to a consent search of her car during a temporal extension of a traffic stop. Defendant‘s motion
in the circuit court was based on her claim that her consent was involuntary because it was given at a
time when she was unlawfully being detained after the trooper had handed her the citations. (The
motion in this case was litigated before the State v. Hall, 339 Or 7 (2005)). On appeal, defendant
argued, based on Hall, that the trial court committed ―plain error‖ that is reviewable despite his failure
to preserve the exploitation issue in the circuit court. Held: Conviction reversed. [1] Defendant failed
to preserve an ―exploitation‖ argument in the circuit court. By failing to make an exploitation argument,
defendant clearly did not alert the circuit court to the issue. [2] The denial of the motion to suppress is
―plain error‖ that the Court of Appeals has discretion to review and correct. The court also decided to
exercise its discretion to correct that error and remand the case to the circuit court.

         State v. Basargin, 213 Or App 515, 162 P3d 325 (2007). Defendant was charged with three
counts of felony assault in the fourth degree; the last count alleged that defendant committed an assault
―in the immediate presence and witnessed by the victim‘s minor child.‖ Evidence at trial established
that two of the victim‘s children were present during the assault. On appeal, defendant contended that
the trial court erred in failing sua sponte to instruct the jury that at least 10 had to agree which child had
been present during the assault. Held: [1] Because the evidence showed both children were present
during the assault, it was not plain error that defendant was entitled to a Boots jury instruction. [2] It
also was not plain error for the trial court to admit, without objection, one child‘s excited utterances
made to the police into evidence.

        State v. Miller, 213 Or App 237, 159 P3d 1293 (2007) (per curiam). Defendant was convicted
for two generic counts of assault where the victim testified to up to three possible assaults: defendant
poked her eye with his finger, dragged her by her wrists, and ―bear hugged‖ her, causing her neck to
crack. On appeal, defendant claimed the trial court committed plain error when it failed to instruct the
jury that at least ten of them needed to agree on the factual basis of each count, State v. Boots, 308 Or
371 (1989). Held: Affirmed. Because the counts involve the same defendant and the same victim, the
jury need not agree on how the defendant assaulted the victim as each set of underlying facts could
constitute an assault.

        State v. Foreman, 212 Or App 109, 157 P3d 228, rev den, 343 Or 223 (2007). The trial court
10

admitted out-of-court statements made by the non-testifying child victim to an examining physician
regarding sexual abuse. Defendant did not object, but on appeal he argued that the admission of the
victim‘s statements to the physician was plain error under Crawford. Held: Admission of the statements
is not plain error, because a reasonable dispute exists whether the victim‘s statements were made for the
purpose of treatment, rather than to assist in a police investigation.

        State v. Pauley, 211 Or App 674, 156 P3d 128 (2007). Defendant was charged with one count
of attempted first-degree sexual abuse based on the allegation that he ―attempt[ed] to touch [the
victim‘s] vagina.‖ The court did not give a copy of the indictment to the jury or otherwise explain that
the jurors were required to concur on the factual theory underlying the charge, and the court instructed
the jury only on the statutory elements of the crime: The jurors had to find that defendant attempted to
subject the victim to ―sexual contact,‖ but the court did not give a description of the factual theory
alleged in the indictment (that defendant attempted to touch the victim‘s vagina). Defendant did not
object to the instructions, and the jury convicted him of attempted first-degree sexual abuse. On appeal,
defendant argued that the instructions failed to ensure that the jurors agreed on the essential facts that
constitute the elements of the crime, as required by State v. Boots, 308 Or 371 (1989). Held: Affirmed.
The trial court did not commit plain error by failing to give a Boots instruction: (a) because there was
only one count of attempted sexual abuse and the state relied on only one factual theory, the necessity of
a Boots instruction was not obvious—there was little risk that the jurors could disagree on the essential
facts that constitute material elements of the crime; and (b) because defendant was charged with only
one count of attempted sexual abuse, the court instructed the jurors that at least 10 must agree on the
verdict, and the prosecutor specifically argued that he was relying on the theory that the defendant had
committed the crime by attempting to touch the victim‘s vagina, the record shows that the jury actually
did concur on the facts supporting its verdict.

       Appeals: ―right for the wrong reason‖ affirmance

        State v. Casiano, 214 Or App 509, 166 P3d 599 (2007). The Court of Appeals held that the
sentencing court erred by applying ORS 137.635 to deny defendant eligibility for leave and programs.
The Court of Appeals then refused to affirm the sentence on the ground that the sentencing court would
have been permitted to enter such an order pursuant to ORS 137.750, because the record did not show
that had the sentencing court realized its error regarding ORS 137.635, it would have denied eligibility
for leave and programs under ORS 137.750.

       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.

        State v. Norby, __ Or App __, __ P3d __ (March 19, 2008). Despite the fact that the victim‘s
reports of the abuse to her family members were non-testimonial and thus were lawfully admitted, the
erroneous admission of testimonial statements (statements made during a CARES interview) was not
harmless because the witness who testified about the statements was an ―expert,‖ whose repetition of the
victim‘s statements was likely to be given greater weight in the jury‘s eyes.

        State v. Shelton, __ Or App __, __ P3d __ (March 19, 2008). Even if ―testimonial,‖ the victim‘s
statement to a medical assistant, who was speaking with her in the course of the police investigation of
the abuse was harmless in light of the fact that the victim made similar statements to her babysitter, and
those statements were properly admitted at trial.

         State v. Hobbs, 218 Or App 298, __ P3d __ (2008). OEC 803(18a)(b) includes evidence about
the victim‘s demeanor and emotional state, as well as the victim‘s report that ―set[s] the scene for the
                                                                                                     11

act.‖ That includes the victim‘s statements about the abuse, the events leading up to it, and her feelings
during and afterward. Even if defendant‘s OEC 403 objection were preserved, any error in admitting
statements about the victim‘s feelings was harmless because it was merely cumulative of her testimony
and other evidence.

         State ex rel. Juv. Dept. of Mult. Co. v. S.P., 218 Or App 131, __ P3d __ (2008). A Crawford
error in admitting the victim‘s CARES statements was harmless as to defendant‘s conviction for sexual
abuse, because the child also had made non-testimonial statements to his mother regarding the elements
of sexual abuse.

         State v. Clark, 217 Or App 475, 175 P3d 1006 (2008). Erroneous admission of the victim‘s
statements that defendant had threatened to kill her was not harmless, even though other witnesses
testified that defendant made statements that he ―could kill someone,‖ and that he ―would kill‖ the
victim if she were using drugs. Rather, because defendant claimed that he did not intend to beat the
victim (and that he did not know why he had done it), and because he immediately admitted to
committing the murder, the admission of evidence that defendant had threatened to kill the victim was
the only strong evidence that he acted intentionally.

       State v. Reyes-Mauro, 217 Or App 315, 175 P3d 998 (2007). Erroneous admission of the
codefendant‘s testimonial statements, in violation of Crawford, was harmless in light of the
overwhelming evidence of defendant‘ guilt.

        Mecham v. Hill, 217 Or App 144, 174 P3d 1051 (2007). Plaintiff‘s release from prison did not
moot his habeas corpus claim. Under Baty v. Slater, 161 Or App 653 (1999), a writ of habeas corpus is
not rendered moot by a plaintiff‘s release from imprisonment because, if he is entitled to relief from his
prison sentence, resolution would affect the length of his post-prison supervision term.

       State v. Montgomery, 217 Or App 139, 174 P3d 1040 (2007). Any error in admitting statements
obtained pursuant to a promise of ―confidentiality‖ was harmless because the trial court, in finding
defendant guilty, expressly stated that, even without defendant‘s ―corroborating‖ admissions, the court
would be convinced beyond a reasonable doubt of his guilt by the rest of the evidence.

         State v. Moller, 217 Or App 49, 174 P3d 1063 (2007). The prosecutor‘s introduction of
evidence and argument regarding defendant‘s refusal to consent to a search was not harmless error; the
evidence related to defendant‘s knowledge, which was a central and contested issue in the case, and the
state relied heavily on that evidence in its argument in favor of guilt.

       State v. Wilson, 216 Or App 226, 173 P3d 150 (2007), rev den, 344 Or __ (2008). Defendant
challenged the court‘s decision to give the ―acquittal first‖ instruction required by ORS 136.460
contending that application of that statute would violate state and federal ex post facto provisions
because he committed his crimes before the statute was enacted. The court rejected his argument and
gave the instruction. Jurors found defendant guilty of attempted aggravated murder as lesser-included
offenses of five of the aggravated-murder charges and were unable to reach a verdict on the other
aggravated-murder charges. Held: Convictions affirmed. Acquittal-first instruction, even if erroneous,
cannot have prejudiced defendant, because the jurors did acquit him on the aggravated-murder charges
and convicted only on lesser-included offenses.

         State v. Beaman, 216 Or App 181, 171 P3d 402 (2007), rev den, 344 Or 109 (2008). Defendant
appealed from his convictions for numerous crimes stemming from a series of burglaries, arguing that
the trial court violated his federal Confrontation Clause rights by admitting officers‘ accounts of the out-
12

of-court statements of an accomplice who did not testify. Held: Affirmed. Although the admission of
the statements violated the Sixth Amendment under Crawford, the error was harmless because the
evidence was merely cumulative of testimony given by other accomplices.

         State v. Brostrum, 212 Or App 486, mod on recon, 214 Or App 604, 167 P3d 460 (2007). In
light of State v. Hess, 342 Or 647 (2007), the trial court erred in refusing to accept defendant‘s
stipulation to a prior conviction, but the error was harmless because the conviction was substantively
admissible to refute defendant‘s claim that she was merely trying to restrain the victim to calm him.
Moreover, defendant opened the door to the evidence by arguing that, although she had previously
assaulted the child as a result of drinking, she did not do so in this case.

         State v. Miller, 214 Or App 494, 166 P3d 591 (2007), adh’d to on recon, 217 Or App 576, 176
P3d 425 (2008). Even if the trial court erred by failing to inquire about defendant‘s understanding of the
risks of proceeding pro se before denying his motion for substitute counsel and allowing counsel to
withdraw, it was harmless. In this case, defendant was pro se for only a short period of time and
counsel was present and acting as standby counsel. The error was not ―structural error‖ that requires
reversal even without any showing of prejudice.

        State v. Kayfes, 213 Or App 543, 162 P3d 308, rev den, 343 Or 390 (2007). Defendant, a
former middle-school teacher and coach, was charged with numerous sexual offenses involving a
student. At trial, the 16-year-old victim refused to testify. Over defendant‘s objection, the trial court
admitted her recorded statements and other statements to the police and grand jury under the residual
hearsay exception, OEC 803(28). Held: Affirmed. Because another hearsay exception provision
specifically applied, the trial court erred in using the residual hearsay exception to admit the victim‘s
statements. OEC 803(18)(a) would allow the admission of the fact that the victim reported abuse, but
the details of the victim‘s reported abuse would not be admissible under subsection (b), because the
victim was over 12 years old and was unavailable to testify. But this error was harmless, because the
victim‘s statements to the police and grand jury were cumulative to other evidence properly admitted.

         State v. Holcomb, 213 Or App 168, 159 P3d 1271, rev den, 343 Or 224 (2007). Defendant was
arrested for and ultimately convicted of murder and related offenses. He challenged the admission of
several of his statements provided to the police during interrogation on the basis that he had invoked his
right to consult with counsel prior to questioning and that the police had unlawfully ignored his
invocation. Held: When defendant replied, ―When I get my attorney, I‘ll answer your questions,‖ that
was an unequivocal invocation and that the officers unlawfully continued to interrogate defendant. But
the Court of Appeals affirmed several of defendant‘s convictions because the erroneous admission of his
statements after that invocation was harmless as to those counts.

        State v. Ennis, 212 Or App 240, 158 P3d 510, rev den, 343 Or 223 (2007). Before his joint trial
with other defendants on charges of felony murder, burglary, and robbery, defendant moved to suppress
various out-of-court statements made by his codefendants and other witnesses to the police. The trial
court denied the motion and admitted several hearsay statements through the testimony of third parties.
In accordance with Bruton v. United States, 391 US 123 (1968), statements by the non-testifying
codefendants that inculpated themselves and defendant were redacted to remove any direct reference to
defendant; however, a statement of one codefendant identified defendant as a long-time acquaintance,
and the remainder of the statements referred to the involvement of another person in possessing the gun
and committing the homicide. Defendant raised the affirmative defense in ORS 163.115(3), based on
his claims that he was unarmed, that he did not encourage the homicide, that he lacked reasonable
grounds to believe that other participants were armed, and that he did not believe that others intended to
engage in conduct likely to result in a death. Held: Reversed. Under Crawford, defendant‘s
                                                                                                     13

Confrontation Clause rights were violated, and admission of the evidence was not harmless because it
impaired defendant‘s ability to prove his affirmative defense.

         State v. Graves, 212 Or App 196, 157 P3d 295 (2007). Defendant was convicted of domestic
assault for kicking a woman in the face and threatening to kill her and her 8-year-old son. The trial
court admitted out-of-court statements of the two victims based on the then-current Confrontation
Clause analysis under Ohio v. Roberts, 448 US 56 (1980). Held: Reversed. Under Crawford,
admission of statements made by the victims after the officers searched the home and confirmed that
defendant had left was ―plain error‖; the statements were ―testimonial‖ under Crawford. Admission of
the statements was not harmless, because they were not merely cumulative of the child‘s statement from
the upstairs window, and because there was no other evidence of the offenses.

        Trotter v. Santos, 212 Or App 473, 157 P3d 1233, on recon, 214 Or App 696, 167 P3d 488
(2007). Petitioner was convicted of attempted murder as a result of a near-miss shooting incident. He
alleged in his petition for post-conviction relief that his trial counsel provided inadequate assistance by
not requesting instructions on the lesser-included offenses. Held: Relief granted. Because the count
alleged that the defendant used a firearm in the crime, petitioner was entitled to have the jury instructed
on the lesser-included offenses of menacing and attempted assault. Although the jury was given an
acquittal-first instruction, ORS 136.460(2), ―failure to give a lesser-included jury instruction is not
harmless if the instruction was warranted.‖

        State v. Shelly, 212 Or App 65, 157 P3d 234 (2007). Defendant sought to cross-examine the
robbery victim about the fact that he was on probation and had committed past probation violations.
The trial court rejected defendant‘s argument that the evidence demonstrated that the victim had a
motive to testify untruthfully to curry favor with the state. Held: Reversed. Although a trial court
generally has some authority to limit impeachment evidence based on OEC 403, its discretion to limit
impeachment evidence that goes to bias or interest applies only to evidence that amplifies, develops, or
elaborates an ―initial showing‖ or bias or interest. Because the proffered evidence was the only
evidence of interest and, thus, was the ―initial showing,‖ the court was required, as a matter of law, to
admit it. The erroneous exclusion of the evidence was not harmless, because the victim was the sole
witness to the crime, and his credibility was likely to have affected the outcome of the trial.

        State v. Raney, 217 Or App 470, 175 P3d 1024 (2008) (on reconsideration of prior opinion, 215
Or App 339 (2007)). Because defendant may have made a tactical decision not to object to the
admission of the laboratory report, the trial court‘s admission of that evidence without objection on that
basis cannot be said to be ―plain error.‖

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

        State ex rel. Juv. Dept. of Mult. Co. v. S.P., 218 Or App 131, __ P3d __ (2008). Because the
juvenile court‘s original error in admitting the CARES statements may have actually caused the state
not to offer other evidence to support defendant‘s confession, the appellate court remanded for further
proceedings to give the state the opportunity to offer evidence to corroborate the confession.

       State v. Davis, 216 Or App 456, 174 P3d 1022 (2007). Defendant was convicted of murder in
1996, and the sentencing court imposed a 25-year prison term with lifetime post-prison supervision.
The judgment was reversed based on an evidentiary error. State v. Davis, 336 Or 19 (2003). On retrial,
defendant again was convicted of murder, and the court reimposed the 25-year minimum but also
imposed the life sentence mandated by ORS 163.115(5)(a), rejecting defendant‘s objection that the court
14

could not impose a sentence more onerous than the original sentence. Held: Affirmed. [1] State v.
Turner, 247 Or 301 (1967), did not preclude the sentencing court from imposing the life sentence after
defendant‘s successful appeal. The sentencing court originally had not imposed a life sentence because
of State v. McLain, 158 Or App 419 (1999), which held that the life sentence was unconstitutionally
disproportionate given the absence of a statutory provision authorizing parole after completion of the
25-year minimum. After defendant‘s original sentencing and his retrial, that oversight was corrected,
eliminating the constitutional flaw in the life sentence. State v. Haynes, 168 Or App 565, rev den, 331
Or 283 (2000) (application of that fix to crimes previously committed does not violate the state or
federal ex post facto provisions). [2] The sentencing court erred in ruling that it lacked authority to
consider defendant‘s Blakely claim after a remand for resentencing on convictions for murder and felon
in possession, even though the sentence on the latter conviction was not at issue in the previous appeal.
Under ORS 138.222(5), when a case requires resentencing on any part of the judgment, the sentencing
court has authority to resentence on all convictions.

         State v. Chelson, 212 Or App 132, 157 P3d 258 (2007). Defendant was convicted in a bench
trial of unlawful use of a weapon and menacing based on his brandishing of a firearm at ―recovery
agents‖ who were attempting to repossess his car. He attempted to assert a ―defense of property‖
defense under ORS 161.229. Because that statute provides that a person may not use deadly force to
prevent theft or criminal mischief, the trial court ruled that the defense was unavailable as a matter of
law. Held: Reversed. Because the threat of deadly force does not constitute the use of deadly force, the
limitations on the use of deadly force did not apply. But a new trial is not required. Because this was a
bench trial, the remedy is to remand for the court to reconsider the case, now including the defense, in
light of the testimony in the record.

ARREST
     See also ―Stop & Frisk,‖ below.

         Scott v. Harris, 550 US __, 127 S Ct 1769, 167 L Ed 2d 686 (2007). Plaintiff refused to pull
over when defendant officer attempted to stop him for speeding at 11 p.m., and he eventually led the
officer on a high-speed chase (which was captured on videotape) over dark rural roads and through stops
signs and red lights. Eventually, the officer deliberately bumped the back of plaintiff‘s car, which
caused him to crash and resulted in serious injuries. Plaintiff filed suit under 28 USC § 1983 alleging
the officer used excessive use of force in violation of the Fourth Amendment. The district court denied
defendant‘s pretrial motion to dismiss based on qualified immunity. Held: [1] Based on the videotape
and applying an ―objective reasonableness standard,‖ the Court held that it was ―quite clear‖ that
defendant had not used excessive force under the standard in Tennessee v. Garner, 471 US 1 (1985).
[2] The Court rejected plaintiff‘s argument that the police must terminate a pursuit that becomes
dangerous: ―A police officer‘s attempt to terminate a dangerous high-speed car chase that threatens the
lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing
motorist at risk of serious injury or death.‖

         State v. Cottrell, 215 Or App 276, 168 P3d 1200, rev den, 343 Or 554 (2007). The fact that the
suspect is not ―free to go‖ does not transform a stop into an arrest. The officers were entitled to stop
defendant for the purpose of investigating a possible DUII. Defendant was not detained for an
unreasonable amount of time, or with unreasonable force, and the officers‘ conduct was not oppressive
or coercive; thus, he was subject only to a temporary restraint on his liberty, and that restraint was
justified by reasonable suspicion.

         State v. Petri, 214 Or App 138, 162 P3d 1053 (2007). The officer did not have probable cause
to arrest defendant for possession of controlled substances based only on: observing defendant leave a
                                                                                                    15

known drug house, defendant acted nervous and surprised upon being stopped for a traffic infraction,
and defendant admitted to possessing a ―point,‖ or a hypodermic syringe.

         State v. Miller, 211 Or App 667, 156 P3d 125, rev allowed 343 Or 554 (2007). A deputy sheriff
called to investigate a single car crash observed defendant walking on the road, ½ mile from the crash
scene. Defendant had cuts and abrasions, and had debris on his clothes and hair, and he otherwise
matched the reported description of the driver. When the deputy contacted him, he denied being the
driver, saying, ―It‘s not my truck,‖ even though the deputy had not mentioned a truck. The deputy
handcuffed defendant and placed him in the back of another officer‘s patrol car and had him transported
to the crash scene. At the scene, a third officer identified defendant as the driver. The officers then
found drugs among the wreckage of the vehicle. Defendant moved to suppress the evidence, arguing
that the officer lacked subjective probable cause to arrest him and place him in the patrol car. The
deputy testified at the hearing that, when he handcuffed defendant, he ―had reasonable suspicion, but I
had not yet reached sufficiently to call it probable cause.‖ The trial court denied the motion. Held:
Reversed. Because the deputy testified that he did not have subjective probable cause, and no evidence
in the record contradicts that statement, there was no basis from which the trial court could have inferred
subjective probable cause.

ARSON AND RELATED OFFENSES

         State v. Luers, 211 Or App 34, 153 P3d 688, aff’d on recon, 213 Or App 389, 160 P3d 1013
(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 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 ―Joinder‖ and ―Sentencing: merger,‖ below.

       State v. Murray, 343 Or 48, 162 P3d 255 (2007). During a test drive of a racing car, defendant
sped up to 90 mph in a residential neighborhood and ultimately crashed into a power pole, causing the
16

car to burst into flames. Defendant was charged with third-degree assault for injuring the victim, his
passenger. Defendant moved for a judgment of acquittal contending that the victim had voluntarily
participated in defendant‘s reckless behavior and the state had failed to introduce sufficient evidence
establishing a legal causation between defendant‘s conduct and the victim‘s injuries. Held: Conviction
affirmed. A defendant commits a reckless third-degree assault if, in addition to participation in the
reckless activity, the defendant‘s own recklessness causes—i.e., brings about, makes, or effects by
force—serious physical injury to another by means of a deadly or dangerous weapon, regardless of the
victim‘s willing participation in the reckless activity.

         State v. Basargin, 213 Or App 515, 162 P3d 325. Defendant was charged with three counts of
felony assault in the fourth degree; the last count alleged that defendant committed an assault ―in the
immediate presence and witnessed by the victim‘s minor child.‖ Evidence at trial established that two
of the victim‘s children were present during the assault. On appeal, defendant contended that the trial
court erred in failing sua sponte to instruct the jury that at least 10 had to agree which child had been
present during the assault. Held: Because the evidence showed both children were present during the
assault, it was not plain error that defendant was entitled to a Boots jury instruction.

        State v. Miller, 213 Or App 237, 159 P3d 1293 (2007) (per curiam). Defendant was convicted
for two generic counts of assault where the victim testified to up to three possible assaults: defendant
poked her eye with his finger, dragged her by her wrists, and ―bear hugged‖ her, causing her neck to
crack. On appeal, defendant claimed the trial court committed plain error when it failed to instruct the
jury that at least ten of them needed to agree on the factual basis of each count, State v. Boots, 308 Or
371 (1989). Held: Affirmed. Because the counts involve the same defendant and the same victim, the
jury need not agree on how the defendant assaulted the victim as each set of underlying facts could
constitute an assault.

        State v. Cox, 212 Or App 637, 159 P3d 352 (2007). For purposes of ORS 163.160(3)(c), which
elevates assault in the fourth degree from a misdemeanor to a felony if the assault occurred ―in the
immediate presence‖ of a child, the term ―in the immediate presence‖ means that the assault occurred
―in the same, physically unseparated, space where the child was located‖ (i.e., in the same room). Any
broader definition would obviate the need for the ―was witnessed by‖ alternative.

ATTEMPTS

        State v. Liston, 212 Or App 703, 159 P3d 335, rev den, 343 Or 206 (2007). The circumstantial
and physical evidence was sufficient for the jury to find that defendant intended to commit specific
sexual crimes against the victim, a severely autistic 11-year-old girl who was unable to testify at trial.
The victim‘s mother came home early to find defendant, naked, leaving the victim‘s bedroom with the
victim tied to the bed.

BURGLARY / TRESPASS

         James v. United States, 550 US __, 127 S Ct 1586, 167 L Ed 2d 532 (2007). Defendant pleaded
guilty to felon in possession of a firearm, 18 USC § 922(g), and he admitted the three prior state-court
felony convictions alleged in the indictment, including one for attempted burglary. Defendant argued
that he was not subject to the mandatory 15-year sentence under the Armed Career Criminal Act, 18
USC § 924(e), because his attempted-burglary conviction did not constitute a ―violent felony‖ under the
Act. The sentencing court disagreed and imposed the enhanced sentence. Held: Affirmed. The
attempted-burglary conviction falls into the Act‘s ―residual provision‖ for crimes that ―otherwise
involve conduct that presents a serious potential risk of physical injury to another,‖ § 924(e)(2)(B)(ii).
                                                                                                      17

[1] Nothing in the text or legislative history of the Act bars use of a conviction for an attempt crime as a
predicate. [2] In determining which offenses constitute a ―violent felony‖ under the Act, ―we consider
whether the elements of the offense are of the type that would justify its inclusion within the residual
provision, without inquiring into the specific conduct of this particular offender.‖ [3] As the offense is
defined by state law, which requires an overt act directed toward entry of the structure, ―attempted
burglary presents a risk that is comparable to the risk posed by the completed offense.‖ And ―the proper
inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case,
presents a serious potential risk of injury to another.‖ The risk does not need to be presented in all
cases.

          State v. Carr, 215 Or App 306, 170 P3d 563 (2007), rev den, 344 Or 109 (2008). Defendant
was charged with second-degree criminal trespass for entering school property—the area where buses
arrived to drop students off at school—in the course of attempting to preach and distribute religious
literature to the students. The school‘s principal previously had told defendant to stay off of the
property. The trial court denied his motion for a judgment of acquittal based on his claim that his
constitutional rights to free speech and to exercise his religion precluded school officials from lawfully
excluding him from school property when he was engaged in his religious activities, and convicted him
at trial. Held: Affirmed. [1] Defendant‘s argument that the school lacked lawful authority to restrict his
speech at all is unsupportable under Art. I, § 8. The mere fact that property is ―public‖ does not entitle a
person to use it for expressive purposes at any time without regard to the use to which the public has put
the property. Thus, defendant‘s assertion that the principal had no authority to restrict his use of the
property fails as a matter of law. [2] Because the school was not a ―public forum,‖ defendant‘s speech
was not protected by the First Amendment. The area was not a public thoroughfare, but rather was an
area that the school used to allow students to enter the building after being dropped off by their buses.
Defendant had no reasonable expectation that his speech would be protected at that location.

        State v. Boone, 213 Or App 242, 160 P3d 944, on recon, 215 Or App 428, 169 P3d 1274 (2007).
Defendant helped a group of other known burglars commit burglaries of storage trailers. An
accomplice, Monk, initially identified defendant as one of the burglars, but testified that defendant did
not participate in the burglaries. Defendant admitted to the police to being at the scene where the
burglaries were committed, to knowing that Monk was burglarizing the storage trailers and how Monk
broke into the trailers, to driving the stolen property off the site, and to helping Monk sand off the serial
numbers of the stolen items after the burglary. Held: With respect to another series of burglaries that
Monk testified defendant did help commit, the state introduced sufficient evidence to corroborate
Monk‘s testimony, even though that evidence was slight and circumstantial. In defendant‘s situation,
the stolen items were found in defendant‘s residence, which was sufficient to corroborate Monk‘s
testimony.

         State v. Maxwell, 213 Or App 162, 159 P 3d 1255, rev den, 343 Or 366 (2007). Defendant
challenged his burglary conviction, contending that the victim, who had obtained a Family Abuse
Prevention Act restraining order against him, had invited him to enter the victim‘s residence. Held:
Conviction affirmed. [1] A FAPA restraining order is different from a conditional-release order,
because the victim was the party who obtained the FAPA order restraining defendant from contacting
her (distinguishing State v. Hall, 181 Or App 536 (2002)). [2] The court declined to decide whether a
victim possessing a valid FAPA restraining order can override the legal ban and invite entry, because
the state had introduced sufficient evidence apart from the restraining order for the jury to conclude
defendant entered the victim‘s premises unlawfully.
18

CHILD NEGLECT

        State v. Savage, 214 Or App 343, 164 P3d 1202 (2007). Defendant was entitled to a judgment
of acquittal on a charge of child neglect under ORS 163.545. Without evidence of defendant‘s conduct
or the circumstances under which the child left the house, the mere fact that a four-year-old was seen
riding a tricycle on a residential street on a summer morning was insufficient evidence that defendant
acted with criminal negligence.

CONFESSIONS / MIRANDA

         State v. Shaff, 343 Or 639, 175 P3d 454 (2007). Officers responded to a 911 call about an
injured woman at defendant‘s trailer. After defendant let them inside, they spoke with him without
reading him his Miranda rights. While the victim spoke with one officer outside, the primary officer
overheard her state that she had merely fallen down. Nevertheless, he asked defendant why the victim
would be saying that she had been assaulted. The trial court found that the circumstances were not
―compelling circumstances‖ that required advice of Miranda rights. The Court of Appeals reversed,
concluding that, based on ―defendant‘s physical restraint by the officer‘s presence in the doorway,
coercive overtones in the conduct and the language of the questioning officer, and the confrontation of
defendant with incriminating evidence,‖ circumstances were compelling. 209 Or App 68 (2006). Held:
Reversed; judgment affirmed. [1] The fact that defendant was not free to leave did not create
―compelling circumstances.‖ He was detained for only a brief period of time, no more than a typical
traffic stop. Moreover, he was questioned in his own home, not at the police department, and the officer
did not raise his voice, threaten defendant, or engage in a show of force to coerce defendant to answer.
[2] The officer‘s show of authority was, at most, a stop; the Court of Appeals erroneously characterized
it as a ―physical restraint.‖ The fact that defendant was not free to leave did not, in and of itself, make
the setting compelling. [3] The perception by the Court of Appeals of ―coercive overtones‖ was
inconsistent with the trial court‘s findings. Because the trial court found in the state‘s favor, it implicitly
found that the officers acted in an appropriate and courteous manner in inquiring about the victim‘s
welfare. [4] The ―false premise‖ underlying one statement by the officer did not create coercion. The
mere fact that the statement had a false premise did not create coercion; rather, the officer‘s subjective
intent is irrelevant, and the question is ―what effect the information that the statement conveyed would
have had on a reasonable person in the suspect‘s position.‖ [5] Confronting a suspect with evidence of
guilt, without any ―heightened level of activity‖ on the officer‘s part, does not render the circumstances
―compelling.‖

         State v. Scott, 343 Or 195, 166 P3d 528 (2007). After defendant unequivocally invoked his
right to counsel, all police interrogation was required to cease, despite a cryptic comment by defendant
that he ―need[ed]‖ a lawyer because of something he had seen on television. Under Rhode Island v.
Innis, 446 US 291, 301 (1980), the officer‘s question—―You saw something on TV?‖—in response to
defendant‘s comment was interrogation because it was reasonably likely to elicit an incriminating
response. ―Incriminating response‖ includes any inculpatory or exculpatory statements that the
prosecution later may seek to introduce at trial.

        State v. Johnson, 342 Or 596, 157 P3d 198 (2007). On automatic review of the judgment of
conviction for aggravated murder and sentence of death. Held: Affirmed. An officer did not
impermissibly comment on defendant‘s exercise of his right to remain silent by testifying that he had
hesitated before answering certain questions during interrogation; rather, ―far from testifying that
defendant remained silent in the face of questions, the officer testified only that defendant paused before
responding.‖
                                                                                                    19

         State v. Campbell, 218 Or App 171, __ P3d __ (2008). The mere fact that defendant had the
―opportunity‖ to commit the crimes of sexual abuse and unlawful sexual penetration – i.e., that he was
alone with the child while she was bathing – was insufficient corroboration of the charged crimes.
Likewise, the mere fact that defendant, at trial, denied having confessed may suggest guilty knowledge
in the sense that he may have done something wrong, it did not indicate what he did. The evidence in
this case was insufficient under ORS 136.425 to corroborate defendant‘s confessions.

         State v. Delp, 218 Or 17, __ P3d __ (2008). Defendant‘s confession to sexually abusing his
girlfriend‘s infant daughter was not supported by ―some other proof that the crime has been committed,‖
as required by ORS 136.425, despite the following evidence: (1) that defendant had access to the victim
at times when no other adults were present in the home; (2) that the pink towel, the instrumentality used
to conceal the acts, was located and seized in the home; and (3) that the child pornography seized on
defendant‘s computer and his explicit online conversations demonstrated that he had a sexual interest in
young children. Because of the lack of physical or other evidence to corroborate the occurrence of a
crime, the trial court erred by finding defendant guilty of the offenses against the child.

        State v. Olivar, 216 Or App 126, 171 P3d 1006 (2007), rev den, 344 Or 110 (2008). A
detective‘s statement that he ―needed to interview‖ defendant about criminal ―allegations‖ did not make
the circumstances compelling. In this case, the detective followed those statements by making it clear
that defendant could leave at any time. Although an accusation of criminal activity can contribute to
compelling circumstances, the mere statement that allegations had been made did not rise to that level.

        State v. Dunlap, 215 Or App 46, 168 P3d 295 (2007). [1] Defendant was not in ―compelling
circumstances‖ under Art. I, § 12, or custody under the Fifth Amendment, when he made statements to
police and to his probation officer, even though he had been ―summoned‖ to the probation office and at
certain points was asked to remain or to sit down. [2] Defendant failed to prove that, at the time he
made the statements, he reasonably believed that he would be penalized for invoking his privilege
against compelled self-incrimination. Although the probation condition required him to truthfully
answer reasonable inquiries, he was not expressly or implicitly told that he would be punished for
invoking his Fifth Amendment right against compelled self-incrimination.

         State v. Simons, 214 Or App 675, 167 P3d 476 (2007), rev den, 344 Or 43 (2008). Defendant
sexually assaulted three Alzheimer‘s patients while working as a hospital nursing assistant. The conduct
was discovered when defendant gave strange responses to police questioning on another claim of sexual
misconduct. Defendant ultimately confessed to committing sexual offenses against three elderly
victims. The victims were unable to testify, and there was no physical evidence to corroborate
defendant‘s confessions. Defendant argued that, under ORS 136.425, there was insufficient
corroboration of his confessions, but the trial court rejected his argument. Held: Some conviction
reversed. [1] All statements to the detective were ―confessions,‖ because the trial court found that all of
the statements were ―made for the purpose of acknowledging guilt.‖ [2] Under ORS 136.425, a
confession alone is insufficient, without some other evidence from which the jury may draw an
inference that tends to establish or prove that a crime has been committed. Although there was ample
evidence that defendant had the opportunity to commit the crimes, that he was sexually interested in
order women, and that one of the victims had demonstrated unusual behavior around the time of the
abuse, it was nonetheless insufficient to corroborate the corpus delecti of any of the alleged sexual
offenses.

         State v. Hutchins, 214 Or App 260, 164 P3d 318 (2007), rev allowed, 344 Or 280 (2008). The
trial court erred by denying defendant‘s motion to suppress statements that he, an inmate, made during a
prison disciplinary hearing without advice of his Miranda rights. Although the fact that a person is
20

incarcerated does not per se create compelling circumstances, the circumstances in this case were
compelling because defendant was brought to the hearing in handcuffs, he was ―not told that his plea
and his statements could be used in a subsequent criminal trial,‖ and ―was confronted with evidence
against him.‖

         State v. Holcomb, 213 Or App 168, 159 P3d 1271, rev den, 343 Or 224 (2007). Defendant was
arrested for and ultimately convicted of murder and related offenses. He challenged the admission of
several of his statements provided to the police during interrogation on the basis that he had invoked his
right to consult with counsel prior to questioning and that the police had unlawfully ignored his
invocation. Held: Affirmed in part; reversed in part. [1] The first invocation was when defendant told
the police, ―Just tell you that I‘m going to do the right thing. I don‘t wanta, uh, make any statements
right now.‖ Defendant had made an equivocal invocation of counsel and the officers were entitled to
ask questions clarifying whether defendant was indeed invoking his right to consult with counsel. Even
though defendant ignored the officer‘s clarifying questions, defendant voluntarily waived his right to
remain silent/consult with counsel by voluntarily reinitiating conversation with the officers about the
criminal investigation. [2] The second invocation came when defendant stated, ―I have an attorney
an[d] shit,‖ but continued to make statements that demonstrated, although he was willing to talk about
his own involvement in the crime, he did not want to ―snitch‖ on third parties. Defendant had not
entirely invoked his right to counsel but had invoked only with regard to aspects of the investigation that
implicated any third party. As a result, the officers lawfully continued to interrogate defendant about his
own involvement in the murder. [3] The third invocation occurred when defendant replied, ―When I
get my attorney, I‘ll answer your questions.‖ That was an unequivocal invocation and the officers
unlawfully continued to interrogate defendant. The Court of Appeals nevertheless affirmed several of
defendant‘s convictions because the erroneous admission of his statements after his third invocation was
harmless as to those counts.

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

        Constitutional law: equal-protection issues

         State v. Walton, 215 Or App 628, 170 P3d 1122 (2007). Defendant was convicted in 2003 in
another case of raping his stepdaughter, and was placed on probation. Within one year, defendant
committed numerous violations of his probation by having contact with the victim and her family and by
failing to comply with a polygraph requirement. The prosecution charged him with nine counts of
contempt of court based on those violations. Defendant moved to dismiss, and the circuit court held that
a prosecutor lacks authority to initiate a punitive contempt proceeding for conduct that also constitutes a
probation violation. In addition, it held that, even if the prosecution has authority to do so, the
prosecutor‘s choice in this case was not done by consistently applied permissible criteria and thus
violated Art. I, § 20. Held: Reversed. [1] No statutory or constitutional provision limits the court‘s
broad inherent contempt power in this situation. The fact that the legislature has adopted statutory
procedures for probation violations does not establish that it intended those procedures to be exclusive.
[2] The prosecutor‘s choice did not violate Art. I, § 20. [a] The prosecutor used permissible criteria. In
making such a claim, the defendant has the burden of proving a lack of permissible criteria. City of
Salem v. Bruner, 299 Or 262, 271 (1985). Here, the prosecutor testified that he was guided in his
decision by the level of culpability involved in defendant‘s violations, his escalating defiance of court
orders, and his dangerousness to the rape victim. Those are permissible criteria. [b] The policy is
coherent and systematic. The mere fact that the prosecutor‘s policy choice was new does not preclude a
finding that it will be coherent and systematically applied, as long as there is testimony to support that
                                                                                                     21

finding.

        State v. Terry, 214 Or App 56, 162 P3d 372 (2007). ORS 809.235(1)(b) does not violate Art I,
§ 20, by requiring a permanent revocation of driving privileges upon a third conviction for DUII under
ORS 813.010, despite defendant‘s contention that it discriminates unfairly on the basis of residence (by
excluding residents of other states). ―The statute distinguishes on the basis of where the person
committed the offense, not on the basis of where the person who committed the offense resides.‖
Moreover, because defendant committed the offense on which the revocation is based, he is responsible
for placing himself in the disadvantaged class.
        See also State v. Nave, 214 Or App 324, 164 P3d 1219 (2007).

           Constitutional law: free-speech issues

        State v. Rich, __ Or App __, __ P3d __ (March 19, 2008). ORS 166.025(1)(b), which creates
the crime of disorderly conduct for intentionally causing ―public inconvenience, annoyance or alarm‖ by
making ―unreasonable noise,‖ is a content-neutral law that focuses on forbidden effects without
reference to expression. Thus, a conviction based on ORS 166.025(1)(b) does not violate Art. I, § 8,
unless it is unconstitutionally applied. Because the statute was applied against defendant because of
noncommunicative elements of his speech, his conviction did not violate Art. I, § 8.

          State v. Carr, 215 Or App 306, 170 P3d 563 (2007), rev den, 344 Or 109 (2008). Defendant
was charged with second-degree criminal trespass for entering school property—the area where buses
arrived to drop students off at school—in the course of attempting to preach and distribute religious
literature to the students. The school‘s principal previously had told defendant to stay off of the
property. The trial court denied his motion for a judgment of acquittal based on his claim that his
constitutional rights to free speech and to exercise his religion precluded school officials from lawfully
excluding him from school property when he was engaged in his religious activities, and convicted him
at trial. Held: Affirmed. [1] Defendant‘s argument that the school lacked lawful authority to restrict his
speech at all is unsupportable under Art. I, § 8. The mere fact that property is ―public‖ does not entitle a
person to use it for expressive purposes at any time without regard to the use to which the public has put
the property. [2] Because the school was not a ―public forum,‖ defendant‘s speech was not protected by
the First Amendment. The area was not a public thoroughfare, but rather was an area that the school
used to allow students to enter the building after being dropped off by their buses. Defendant had no
reasonable expectation that his speech would be protected at that location.

        State v. Betnar, 214 Or App 416, 166 P3d 554 (2007). Defendant was properly convicted of
first-degree encouraging child sexual abuse in violation of ORS 163.684. ORS 163.684, by prohibiting
the duplication and printing of images of child sexual abuse—as opposed to other forms of abuse—does
not violate the right to freedom of expression.

        State v. Johnson, 213 Or App 83, 159 P3d 1213, rev allowed, 343 Or 363 (2007). Defendant
lawfully was convicted of harassment, in violation of ORS 166.065(1)(a)(B), for using an amplified
public-address system to shout racist, obscene, and homophobic insults at the occupants of another car
for more than five minutes. The statute, which criminalizes ―publicly insulting another person by
abusive words or gestures in a manner intended and likely to provoke a violent response,‖ is not
constitutionally vague or overbroad. The subsection is not directed at expression but rather at the harm
that results (i.e., the intended harassment and annoyance, and the likelihood of provoking a violent
response) from the expression.
22

        Constitutional law: other issues

        Danforth v. Minnesota, __ US __, __ S Ct __, __ L Ed 2d __ (Feb 20, 2008). The state
supreme court erred when it held that it could not apply rule announced in Washington v. Crawford ,
541 US 36 (2004), retroactively in state-court proceeding because the Court had held in Whorton v.
Bockting that that rule does not apply retroactively under Teague v. Lane, 489 US 288 (1989). The
limitation on retroactive application prescribed by the Teague rule applies only in federal habeas corpus
proceedings; that limitation does not bind the states in their own state-court proceeding.
        Note: The Oregon Supreme Court previously had held in Miller v. Lampert, 340 Or 1 (2006),
that Teague rule applies in state post-conviction proceedings.

         Scott v. Harris, 550 US __, 127 S Ct 1769, 167 L Ed 2d 686 (2007). Plaintiff refused to pull
over when defendant officer attempted to stop him for speeding at 11 p.m., and he eventually led the
officer on a high-speed chase (which was captured on videotape) over dark rural roads and through stops
signs and red lights. Eventually, the officer deliberately bumped the back of plaintiff‘s car, which
caused him to crash and resulted in serious injuries. Plaintiff filed suit under 28 USC § 1983 alleging
the officer used excessive use of force in violation of the Fourth Amendment. The district court denied
defendant‘s pretrial motion to dismiss based on qualified immunity. Held: [1] Under Saucier v. Katz,
533 US 194 (2001), the court must resolve the immunity question first by determining whether the
officer violated a constitutional right that was clearly established at the time. [2] Based on the videotape
and applying an ―objective reasonableness standard,‖ the Court held that it was ―quite clear‖ that
defendant had not used excessive force under the standard in Tennessee v. Garner, 471 US 1 (1985).
[3] The Court rejected plaintiff‘s argument that the police must terminate a pursuit that becomes
dangerous: ―A police officer‘s attempt to terminate a dangerous high-speed car chase that threatens the
lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing
motorist at risk of serious injury or death.‖

         Whorton v. Bockting, 549 US __, 127 S Ct 1173, 167 L Ed 2d 1 (2007). The rule in Crawford
does not apply retroactively to cases already final on direct review. [1] Because petitioner‘s habeas
corpus petition was pending when Crawford was announced, his claim necessarily depends on whether
that rule applies retroactively under Teague v. Lane, 489 US 288 (1989). [2] The decision in Crawford
was not ―dictated‖ by prior decisions (indeed it overruled a prior decision), and hence it is a ―new rule‖
for purposes of Teague. [3] The Crawford rule does not fit within the exception for a ―watershed rule‖
under the Teague framework. It is not sufficient that the new rule is based on a ―bedrock‖ right—rather,
―a new rule must itself constitute a previously unrecognized bedrock procedural element that is essential
to the fairness of the proceeding.‖ The Crawford rule also does not necessarily increase the reliability of
evidence admitted.

        Carey v. Lincoln Loan Co., 342 Or 530, 157 P3d 775 (2007). The legislature‘s creation of the
Court of Appeals in 1969 was within its authority under Art VII (Am), § 1, as amended by the people
several times since the original adoption of Article VII in 1910. Any irregularities in the adoption of
amended article in 1910 have been cured by the implicit subsequent validation of that article by the
people several times since. Therefore, it was unnecessary to consider whether defendant‘s claimed
defects would have had merit had they been advanced in 1910.

CONTEMPT

        State v. Burleson, 342 Or 697, 160 P3d 624 (2007). In a grand-jury investigation of an
anesthesiologist for sexually abusing anesthetized patients, a dentist who was served with a subpoena
duces tecum refused to provide unredacted medical records that would identify the victims. His refusal
                                                                                                     23

was not based on a self-incrimination claim; rather, he was concerned that disclosure of the victims‘
identities would cause them to avoid further treatment. At the grand jury‘s request, the state moved to
hold the witness in remedial contempt and to compel production of the records. The trial court denied
the motion, concluding that although the evidence sought was relevant and not privileged, public-
interest considerations in ORS 136.617 supported nondisclosure. The state petitioned for a writ of
mandamus. Held: The trial court erroneously refused to compel the witness to comply with the
subpoena. [1] The trial court correctly did not hold the witness in contempt based on his refusal to
comply with the grand jury‘s subpoena. Contempt is a refusal to comply with the order of a court.
ORS 33.015. Because the witness had not refused to comply with any court order requiring him to
testify over his objection, contempt was not yet appropriate. The court emphasized that, although the
prosecutor is authorized to obtain and produce evidence to present to the grand jury, it is ultimately the
grand jury‘s decision whether to press for the production of evidence after a witness has refused to
cooperate fully. If a witness refuses to provide information, the grand jury may decide that further
inquiry is not needed. But if the grand jury determines that the inquiry is necessary, it must seek a court
order requiring the witness to comply. Thus, a witness does not risk contempt merely by refusing a
request for evidence or testimony; rather, a witness may be held in contempt only when he refuses to
comply with an order of the court. [2] ORS 136.617 establishes a procedure by which a court may
compel the testimony of a grand-jury witness who has invoked the right against compelled self-
incrimination. That statute provides that the court ―shall‖ order production of evidence upon a finding
that no privilege protects the evidence sought, unless production would be clearly contrary to the public
interest.‖ That ―public interest‖ exception did not apply in this case, because there had been no
assertion by the witness of a privilege against compelled self-incrimination.

         State v. Montgomery, 216 Or App 221, 172 P3d 279 (2007). Defendant was charged with
violating a restraining order by making a phone call to her husband. At trial, she claimed that she had
accidentally dialed the number and that, as a result, her conduct was not willful; the prosecutor argued
that her claim of mistake was not credible. The trial court declined to decide that factual issue based on
its conclusion that willfulness could be shown even by accidental conduct. Held: Reversed. The trial
court erroneously refused to decide whether defendant‘s conduct was accidental. Although the Oregon
Supreme Court has stated that, for contempt, ―willfulness‖ does not require proof of ―intent,‖ it is not
satisfied by proof of merely accidental conduct.

         State v. Walton, 215 Or App 628, 170 P3d 1122 (2007). Defendant was convicted in 2003 in
another case of raping his stepdaughter, and was placed on probation. Within one year, defendant
committed numerous violations of his probation by having contact with the victim and her family and by
failing to comply with a polygraph requirement. The prosecution charged him with nine counts of
contempt of court based on those violations. Defendant moved to dismiss, and the circuit court held that
a prosecutor lacks authority to initiate a punitive-contempt proceeding for conduct that also constitutes a
probation violation and that, even if the prosecution has authority to do so, the prosecutor‘s choice in
this case was not done by consistently applied permissible criteria and thus violated Art. I, § 20. Held:
Reversed. [1] No statutory or constitutional provision limits the court‘s broad inherent contempt power
in this situation. The fact that the legislature has adopted statutory procedures for probation violations
does not establish that it intended those procedures to be exclusive. [2] The prosecutor‘s choice did not
violate Art. I, § 20. [a] The prosecutor used permissible criteria. In making such a claim, the defendant
has the burden of proving a lack of permissible criteria. City of Salem v. Bruner, 299 Or 262, 271
(1985). The prosecutor testified that he was guided in his decision by the level of culpability involved
in defendant‘s violations, his escalating defiance of court orders, and his dangerousness to the rape
victim. Those are permissible criteria. [b] The policy is coherent and systematic. The mere fact that the
prosecutor‘s policy choice was new does not preclude a finding that it will be coherent and
systematically applied, as long as there is testimony to support that finding.
24


         State v. Dragowsky, 215 Or App 377, 169 P3d 1271, rev den, 343 Or 690 (2007). A rational
trier of fact could find that defendant willfully entered within 150 feet of the victim by assaulting her
after she entered his house without his permission. Although defendant did not violate the restraining
order simply by being in the house when the victim entered, the evidence was sufficient to support a
finding that, after discovering the victim in his residence, defendant approached and assaulted her,
thereby willfully ―entering‖ an area protected by the restraining order.

DEATH PENALTY
    See also ―Homicide,‖ below.

        Death penalty: federal cases

         Panetti v. Quarterman, 551 US __, 127 S Ct 2842, 168 L Ed 2d 662 (2007). Petitioner was
convicted of capital murder for murdering his in-laws, and he was sentenced to death. Although he
suffers from various mental disorders, he was found competent to stand trial and represent himself. The
state courts affirmed the judgment, and his petition for habeas corpus relief (which did not include a
Ford v. Wainwright claim) was denied. When the state set an execution date, petitioner a motion in
state court claiming he is exempt from execution because he is mentally incompetent under the Ford
standard. The state court denied his claim, and he filed a successive petition for habeas corpus in
federal court. The district court denied his petition. Held: Reversed and remanded. [1] Petitioner‘s
Ford-based petition is not a successive petition subject to 28 USC § 2244(b)(2), because that claim was
not ripe when he filed his original petition. [2] Deference under AEDPA is not warranted because the
state court failed to provide the minimum procedures required by Ford when determining his
competence. [3] The test applied by the court of appeals was ―too restrictive to afford [petitioner] the
protections granted by the Eighth Amendment.‖ Although petitioner knew that he had been sentenced
to death for murdering his in-laws, his mental disorders allegedly caused him to believe he was being
executed to stop him from preaching. Ford requires that the inmate must ―comprehend‖ or be aware of,
at least, the reasons for his execution. The Court remanded for reconsideration.

         Uttecht v. Brown, 551 US __, 127 S Ct 2218, 167 L Ed 2d 1014 (2007). Petitioner was
convicted of capital murder and sentenced to death. The state courts affirmed the judgment. In his
habeas corpus petition, petitioner alleged that the trial court improperly excluded for cause several
prospective jurors for expressing opposition to the death penalty. The district court denied the petition,
but Ninth Circuit reversed, agreeing with respect to one juror, even though defense counsel had not
objected to the prosecutor‘s challenge to that juror. Held: Reversed, reinstating district court‘s
judgment. [1] Under the Witherspoon-Witt standard, ―a juror who is substantially impaired in his or her
ability to impose the death penalty under the state-law framework can be excused for cause; but if the
juror is not substantially impaired, removal for cause is impermissible.‖ Also, ―in determining whether
the removal of a potential juror would vindicate the State‘s interest without violating the defendant‘s
right, the trial court makes a judgment based in part on the demeanor of the juror, a judgment owed
deference by the reviewing courts.‖ [2] The Washington Supreme Court‘s opinion discloses that it
correctly identified the applicable rule and applied an abuse-of-discretion standard—―there is no
requirement … that a state appellate court make particular reference to the excusal of each juror.‖
[3] ―From our own review of the state trial court‘s ruling, we conclude that the trial court acted well
within its discretion in granting the State‘s motion to excuse Juror Z.‖ Even though ―there is no
independent federal requirement that a defendant in state court object to the prosecution‘s challenge,‖
and Washington law did not require a specific objection, the federal court may ―take into account
voluntary acquiescence to, or confirmation of, a juror‘s removal.‖ A failure to object deprives the trial
court of an opportunity to avoid the error or explain its ruling and deprives a reviewing court of an
                                                                                                      25

adequate record. Moreover, it could have been a tactical decision.

         Roper v. Weaver, 550 US __, 127 S Ct 2022, 167 L Ed 2d 836 (2007) (per curiam). Petitioner
was convicted of capital murder and sentenced to death. After the state post-conviction court denied his
petition and the Missouri Supreme Court denied review, he filed a habeas corpus petition complaining
of an improper closing argument by the prosecutor, an argument that was similar to one that resulted in
habeas corpus relief in two other cases. When petitioner advised that he wanted to petition for certiorari
from the state supreme court‘s ruling, the district court required him to dismiss his habeas corpus
petition if he chose to do that. He elected to dismiss. After the Supreme Court denied his cert petition,
he refiled his habeas corpus petition, which occurred after AEDPA‘s effective date. The Eighth Circuit
eventually granted relief consistent with previous two cases. The Supreme Court granted review to
consider whether that relief was proper under AEDPA. Held: Petition for cert dismissed as
improvidently granted. The district court erred when it forced petitioner to choose between pursuing his
original petition and petitioning for cert from the state supreme court‘s decision. See Lawrence v.
Florida, post. Because it was not clear, as a result, whether the AEDPA issue was presented, and
because two similarly situated petitioners already had obtained relief on the same claim, the Court
exercised its discretion to dismiss the petition.

         Schriro v. Landrigan, 550 US __, 127 S Ct 1933, 167 L Ed 2d 836 (2007). After a long history
of violent crime, including a previous murder, petitioner escaped from prison and murdered a man
during a burglary. He was found guilty of capital murder by a jury. At sentencing (before the court),
petitioner‘s counsel attempted to present mitigating evidence through petitioner‘s ex-wife and birth
mother but petitioner refused to allow them to testify. In a direct colloquy, petitioner insisted that he did
not want any mitigating evidence to be presented and taunted the court to impose a death sentence: ―just
bring it on.‖ The court did. In his state post-conviction proceeding, petitioner alleged that his counsel
should have investigated and presented mitigating evidence despite his refusal to cooperate. The court
rejected that claim, and the judgment was affirmed on appeal. Petitioner repeated that claim in his
habeas corpus petition. The district court refused to grant an evidentiary hearing and dismissed his
petition. The Ninth Circuit reversed. Held: Reversed, affirming district court. [1] AEDPA continues
the rule that the decision to grant an evidentiary hearing in a habeas corpus proceeding is left to the
discretion of the district court. Under AEDPA, the state court‘s factual findings are presumed correct
unless the petitioner rebuts that by ―clear and convincing evidence,‖ 28 USC § 2254(e)(1), and the
district court may not reverse the state-court judgment unless it ―was based on an unreasonable
determination of the facts,‖ § 2254(d)(2). A district court ―must take into account those standards in
deciding whether an evidentiary hearing is appropriate,‖ and ―if the record refused the petitioner‘s
factual allegations or otherwise precludes habeas corpus relief, a district court is not required to hold an
evidentiary hearing.‖ [2] The state court finding that petitioner refused to allow his counsel to present
mitigating evidence was a reasonable determination of the facts. Moreover, the court was entitled to
conclude that petitioner would have prevented his counsel from presenting whatever mitigating evidence
he might have uncovered, and hence that petitioner suffered no prejudice. Thus, the court did not abuse
its discretion in refusing to grant an evidentiary hearing. [3] This case is unlike Wiggins v. Smith, 539
US 410 (2003), and Rompilla v. Beard, 545 US 374 (2005), because here petitioner directly interfered
with his counsel‘s attempt to present mitigating evidence at the sentencing hearing. [4] Petitioner‘s
claim that the record fails to show that his waiver was ―informed and knowing‖ fails: (a) ―We have
never imposed an ‗informed and knowing‘ requirement upon a defendant‘s decision not to present
evidence‖ and ―we have never required a specific colloquy to ensure that a defendant knowingly and
intelligently refused to present mitigating evidence.‖; (b) that claim is procedurally defaulted; and
(c) the record clearly shows that defendant knew what he was doing. [5] In any event, petitioner
proffered new evidence adds nothing beyond what he had thwarted his counsel from presenting at the
sentencing hearing.
26


         Smith v. Texas, 550 US __, 127 S Ct 1686, 167 L Ed 2d 632 (2007). Petitioner was tried and
sentenced to death after Penry v. Lynaugh, 492 US 302 (1989), and the court, instead of adding a ―fourth
question‖ (see State v. Wagner), instructed the jurors to answer one of the statutory questions ―no‖ if
mitigating circumstances warranted a sentence less than death; petitioner did not object to that
instruction. In Penry v. Johnson, 523 US 782 (2002), the Court held that practice to be error. The Court
then remanded this case for reconsideration. Smith v. Texas, 543 US 37 (2004). On remand, the Texas
court again affirmed, concluding that petitioner‘s failure to preserve the instructional error precluded
relief unless he established that the harm was ―egregious,‖ which it concluded it was not. Held:
Reversed and remanded. The Texas court misconstrued Penry and Smith decisions. In Smith, petitioner
argued and the Court held that, under Penry I, the penalty-phase questions were inadequate to allow
consideration of his mitigating evidence (organic learning disabilities and low IQ) and that the
―nullification instruction‖ was insufficient to cure that error. Therefore, his objection was adequately
preserved and the court applied the wrong harmless-error standard. Without resolving whether a Penry I
error ever can be determined to be harmless, the Court remanded for reconsideration.

         Abdul-Kabir v. Quarterman, 550 US __, 127 S Ct 1654, 167 L Ed 2d 585 (2007). Petitioner
was tried and sentenced to death before Penry I, and the state courts affirmed the judgment despite his
claim that the penalty-phase questions did not all for adequate consideration of the his mitigating
evidence (unhappy childhood and impulse-control disorder). The Fifth Circuit rejected his petition for
habeas corpus, and the Supreme Court remanded for reconsideration in light of Tennard v. Dretke, 542
US 274 (2004). On remand, the Fifth Circuit, applying AEDPA, again denied his petition, concluding
that when the Texas courts affirmed his sentence in 1999 the law was unsettled whether the defendant
must establish a nexus between his mitigating evidence and his criminal conduct, which petitioner had
failed to show. Held: Reversed. Under AEDPA, the essential question is whether the rule announced
in that case was ―clearly established Federal law‖ insofar as its application to petitioner‘s mitigating
evidence at the time the state courts finally affirmed the judgment in 1999. Piecing together the Court‘s
seemingly conflicting jurisprudence at that time, the majority concluded that given the nature of
petitioner‘s mitigating evidence and the instructions given in the penalty phase, it was clearly
established in 1999 that the death sentence violates the rule in Penry I.
         Note: In an entertaining dissent, Chief Justice Roberts commented: ―We give ourselves far too
much credit in claiming that our sharply divided, ebbing and flowing decisions in this area gave rise to
‗clearly established‘ federal law. … When the state courts considered these cases, our precedents did not
provide them with ‗clearly established‘ law, but instead a dog‘s breakfast of divided, conflicting, and
ever-changing analyses.‖
         See also Brewer v. Quarterman, 550 US __, 127 S Ct 1706, 167 L Ed 2d 622 (2007) (similar;
mitigating evidence: depression, abusive father, substance abuse).

        Death penalty: state cases

         State v. McDonnell, 343 Or 3 Or 557, 176 P3d 1236 (2007). Defendant originally was found
guilty of aggravated murder in 1988 and has been sentenced to death four times, most recently in 2002.
On direct review, defendant raised numerous challenges, only four of which the Supreme Court
discussed in its opinion: (1) A challenge to the validity of the entire retrial proceeding, based on the fact
that, in his original trial, he had filed a motion under ORS 14.250 to disqualify a particular judge from
presiding over his trial, but, after the 1999 remand by the Supreme Court for the fourth penalty-phase
proceeding, the previously disqualified judge was assigned to the case and presided over the penalty-
phase retrial. Defendant did not object, but, on appeal, asserted that his disqualification from the case
rendered the judgment void. (2) A motion to dismiss based on the 14-year ―delay‖ that was caused by
the various proceedings between his original trial in 1988 and the 2002 sentence of death; defendant
                                                                                                        27

argued that that delay violated his Art. I, § 10. (3) A challenge to the admission of transcripts of
testimony from witnesses in the prior proceedings. Although he had objected to the admission of the
transcripts in previous proceedings, he did not object in the 2002 proceeding; nonetheless, he asserted
that his confrontation rights were violated based on his claim that he had not had sufficient opportunity
to cross-examine the witnesses in the earlier proceedings. (4) Defendant challenged the trial court‘s
ruling allowing the prosecution to offer rebuttal testimony of an expert whom the prosecution had called
in its case-in-chief to testify about the defendant‘s future dangerousness. Held: Convictions, sentence
of death affirmed. [1] Effect on remand of prior disqualification of judge. By failing to object,
defendant waived any challenge based on the judge‘s previous disqualification. The disqualification of
the judge from any ―suit, action, matter or proceeding‖ under ORS 14.250 extends to both the guilt
phase and any penalty phase of an aggravated-murder trial; thus, the court‘s conduct in presiding over
the 2002 penalty-phase retrial rendered the judgment ―voidable,‖ and not ―void‖ as a matter of law.
Because the record is subject to competing interests (for example, it is possible that the defendant, in
2002, preferred this judge over the other available circuit-court judges), the court refused to exercise its
discretion to review the claim as plain error. [2] Speedy trial and penalty-phase retrials. The Art. I,
§ 10, right to justice without delay applies to penalty-phase retrials; nevertheless, the delay in this case,
which was caused by appellate remands, was reasonable. The state is authorized by statute to pursue a
death sentence, and the state did not engage in dilatory behavior or other vexatious conduct during the
appellate process or in the proceedings on remand. Moreover, defendant failed to prove that he suffered
any cognizable prejudice due to the delay; although members of his family had died, he failed to prove
that they would have provided any support for an argument against the death sentence. [3] Transcripts
of prior testimony under ORS 138.012. The court correctly admitted the transcripts of prior testimony.
ORS 138.012(2)(b) expressly permits the admission of all evidence that was properly admitted in earlier
proceedings. The court rejected defendant‘s unpreserved argument that the statute is unconstitutional
because it fails to include any ―unavailability‖ requirement or that the defendant had a sufficient
opportunity and motive to cross-examine the witness in the prior trials. [4] Rebuttal evidence. The
court has broad discretion to allow rebuttal evidence when it becomes relevant, even if it could have
been offered in the case-in-chief.

         State v. Johnson, 342 Or 596, 157 P3d 198 (2007). On automatic review of the judgment of
conviction for aggravated murder and sentence of death. Held: Affirmed. [1] An officer did not
impermissibly comment on defendant‘s exercise of his right to remain silent by testifying that he had
hesitated before answering certain questions during interrogation; rather, ―far from testifying that
defendant remained silent in the face of questions, the officer testified only that defendant paused before
responding.‖ [2] The trial court correctly denied defendant‘s motion to dismiss based on his claim that
the state violated his constitutional right to a speedy trial (Art I, § 10; 6th Amend) by taking two appeals
from separate pretrial orders suppressing evidence. The decision to pursue the appeals was not
unreasonable, and the length of the delay caused by the state in pursuing those appeals was not
unreasonable. ―[T]he length of the delay weighs against the state but the state did not act unreasonably
in taking or pursing the two appeals.‖ Moreover, defendant failed to prove that he was prejudiced by the
delay. ―[W]hen the value of the unavailable evidence is only speculative, the unavailability of that
evidence will not factor significantly into the analysis.‖ Defendant‘s claim based on the Sixth
Amendment fails because he delayed for five years before asserting his speedy-trial right.
[3] Defendant‘s claim based on ORS 135.747 fails because the legislature has expressly authorized the
state to take pretrial appeals in certain situations; thus, a defendant is brought to trial within a reasonable
time within the meaning of ORS 135.747 as long as the state reasonably made the decision to take the
appeal and has prosecuted the appeal with reasonable diligence. [4] The trial court properly ruled that if
defendant offered expert testimony to compare two sets of footprints that were found at the scene, he
would be opening the door to the admission of previously suppressed evidence that the state had
examined defendant‘s boots and found that they were consistent with one set of prints found at the
28

scene. Defendant‘s proffered evidence would have created an incorrect inference that the state had
failed to test critical evidence; moreover, the court allowed defendant to offer lay testimony that there
were two types of prints, and the benefit of using expert testimony would have been ―slight, if
nonexistent.‖

DEFENSES
     See also ―Insanity,‖ below.

         State v. Sandoval, 342 Or 506, 156 P3d 60 (2007). Defendant, charged with murder, 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 based on language in
State v. Charles, 293 Or 273 (1982), 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.‖ The instruction 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 trial court gave the instruction over defendant‘s objection. Held: Reversed.
[1] Although the state‘s reliance on Charles was ―understandable,‖ the Charles decision was not based
on the self-defense statutes, but instead was decided on pre-1971 case law. 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 the statutes
only require that the person using deadly force must reasonably believe that the degree of force is
necessary. The statutes do not impose an additional requirement that the person must retreat before
using deadly force in self-defense.
         See also State v. Lang, 215 Or App 15, 168 P3d 310 (2007) (under State v. Sandoval, 342 Or
506 (2007), the trial court erroneously gave a ―duty to retreat‖ instruction in conjunction with
defendant‘s self-defense claim).

         State v. Williamson, 214 Or App 281, 164 P3d 315, rev den, 343 Or 554 (2007). Defendant was
charged with MCS and PCS after she was found to have several plants and 3 ounces of marijuana in her
home. Defendant was an authorized medical marijuana cardholder, but she admitted that she had shared
marijuana with her boyfriend, a non-cardholder, and that she had taught him how to help her cultivate
the growing plants. She also admitted giving marijuana to other people. At trial, the prosecution sought
a jury instruction based on the statutory exception to the OMMA medical-marijuana affirmative defense,
stating that the defense is unavailable ―if the person, in connection with the facts giving rise to such
charges, delivers marijuana to any individual who the person knows is not in possession of a medical
marijuana card.‖ The court gave the instruction over defendant‘s objection that the evidence did not
support the instruction because there was no direct evidence that she possessed and manufactured the
particular marijuana found pursuant to the search warrant in connection with deliveries to non-
cardholders. Defendant was convicted at trial, and appealed. Held: Convictions affirmed. [1] The
evidence supported the jury instruction on the exception to the affirmative defense. A party is entitled to
a jury instruction on its theory of the case if the requested instruction (1) correctly states the law, (2) is
based on the operative pleadings, and (3) is supported by some evidence. Even without direct evidence
that defendant shared, or planned to share, the marijuana with her boyfriend, the jury could infer that she
did. [2] Defendant‘s argument that her unauthorized delivery was de minimis is irrelevant. The court
also bluntly rejected defendant‘s argument that the exception to the affirmative defense should not apply
to the MCS and PCS charges because her delivery to the boyfriend was de minimis, concluding: ―The
law contains no such exception.‖
                                                                                                      29

         State v. Fries, 212 Or App 220, 159 P3d 10, rev allowed, 343 Or 363 (2007). Defendant was
convicted of PCS for helping a friend move, during which he carried several of the friend‘s marijuana
plants out of the apartment and placed them in the car. Defendant moved unsuccessfully for a judgment
of acquittal contending that, because the friend, who owned the marijuana, had a ―medical marijuana
card,‖ defendant was permitted to possess the marijuana at the direction of his friend. Held: Affirmed.
By carrying the plants out to the car, defendant committed PCS by physically ―possessing‖ the plants.
The fact that he may have possessed the plants under someone else‘s direction and control does not alter
that fact, and his conduct was not otherwise authorized by the OMMA.

         State v. Chelson, 212 Or App 132, 157 P3d 258 (2007). Defendant was convicted in a bench
trial of unlawful use of a weapon and menacing based on his brandishing of a firearm at ―recovery
agents‖ who were attempting to repossess his car. He attempted to assert a ―defense of property‖
defense under ORS 161.229. Because that statute provides that a person may not use deadly force to
prevent theft or criminal mischief, the trial court ruled that the defense was unavailable as a matter of
law. Held: Reversed. Because the threat of deadly force does not constitute the use of deadly force,
the limitations on the use of deadly force did not apply.

DEMURRERS
    See also ―Accusatory Instruments,‖ above.

         Gonzales v. Carhart, 549 US __, 127 S Ct 1610, 167 L Ed 2d 480 (2007). Abortion doctors
challenged the facial constitutionality of Partial-Birth Abortion Ban Act of 2003, 18 USC § 1531, which
makes it a felony offense to intentionally perform an ―intact D&E‖ procedure involving a live fetus.
Held: Challenge rejected. [1] Plaintiffs have not demonstrated that the Act is facially void for
vagueness or that it imposes an undue burden on woman‘s right to abortion. Plaintiffs‘ arbitrary-
enforcement claim is speculative. [2] The Act is not facially invalid for not containing an express
exception for allowance of the procedure if that is necessary for preservation of the mother‘s health.
Medical uncertainty whether such a procedure ever is necessary does not foreclose the exercise of
legislative authority in this context. In any event, the proper means to consider such an exception is by
an as-applied challenge.

         State v. Hutchins, 214 Or App 260, 164 P3d 318 (2007), rev allowed, 344 Or 280 (2008). The
trial court correctly disallowed defendant‘s demurrer to the charge of being an inmate in possession of a
weapon under ORS 166.275, despite defendant‘s argument that the statutory definition of ―weapon‖ as
any ―sharp instrument‖ is unconstitutionally vague. The terms ―sharp‖ and ―instrument‖ are words of
common understanding, and that they are sufficiently precise to avoid any vagueness challenge.

        State v. Gruhlke, 214 Or App 169, 162 P3d 380 (2007). Two years after the date of the DUII
offense, the state filed an ―amended‖ indictment that did not allege any facts to avoid the statute of
limitations. The trial court overruled defendant‘s demurrer, and he entered a conditional guilty plea.
Held: Reversed. The indictment was defective because it failed allege facts to establish that prosecution
had been commenced within the statute of limitations, as required by ORS 132.540(1)(c).

        State v. Johnson, 213 Or App 83, 159 P3d 1213, rev allowed, 343 Or 363 (2007). Defendant
lawfully was convicted of harassment for using an amplified public-address system to shout racist,
obscene, and homophobic insults at the occupants of another car for more than five minutes.
ORS 166.065(1)(a)(B), which criminalizes ―publicly insulting another person by abusive words or
gestures in a manner intended and likely to provoke a violent response,‖ is not constitutionally vague or
overbroad. The subsection is not directed at expression but rather at the harm that results (i.e., the
intended harassment and annoyance, and the likelihood of provoking a violent response) from the
30

expression.

         State v. Burns, 213 Or App 38, 159 P3d 1208 (2007), rev allowed, 344 Or 280 (2008).
Defendant was indicted for felony hit and run. Rather than filing a demurrer, he waited until after trial
and moved for an arrest of judgment, under ORS 136.500, contending that the indictment to allege a
culpable mental state with regard to physical injury resulting from the collision. Held: Affirmed.
[1] When the sufficiency of an indictment is challenged by way of a demurrer, it is strictly construed
against the state, but if the defendant challenges the sufficiency of the indictment only after a verdict,
the language of the indictment is given a more liberal construction, and such a motion can succeed only
if ―the indictment wholly fails to state ‗any crime known to law.‘‖ [2] Because the charge tracked the
language of the statute, a person of common understanding could reasonably be expected to know what
is intended.

        State v. Magana, 212 Or App 553, 159 P3d 1163, rev den, 343 Or 363 (2007). Defendant, a
police officer, was charged with inter alia identical multiple counts of official misconduct and coercion.
He demurred to those counts on the ground that the indictment failed to inform him of what conduct was
alleged to constitute the violations. Defendant argued that the discovery provided by the state was too
voluminous to read. Held: [1] The mere fact that a defendant may be provided with a large amount of
discovery does not establish that the discovery as a matter of law was insufficient. Defendant failed to
make an offer of proof of how the discovery failed to illuminate the indictment. [2] For demurrer
purposes, a criminal defendant is expected to read the indictment as a whole. Because it appeared that
the official misconduct and coercion charges were grouped with charges involving the same victim, a
person of ordinary understanding would recognize that the acts underlying the charges surrounding a
particular victim also formed the basis for the official misconduct and coercion charges.

         State v. Watters, 211 Or App 628, 156 P3d 145, rev den, 343 Or 186 (2007) . Defendants, who
are members of the Nez Perce Tribe, were arrested for killing two elk out of season on private property.
Relying on an 1855 treaty between the Nez Perce and the United States stating that the members of the
tribe may continue to hunt on any ―open and unclaimed land‖ that was part of their original hunting
grounds, they filed both a demurrer and a motion to dismiss on that ground, and on the grounds that the
federal courts and tribal courts had exclusive jurisdiction to interpret treaties and that the accusatory
instruments did not allege that the defendants were Nez Perce members and that the treaty was not
applicable. Held: Affirmed. [1] The state court has authority to prosecute crimes committed by Native
Americans off of the reservation; moreover, the state courts have authority to determine whether treaty
rights are applicable and whether they preclude state prosecution. [2] The state is not required to negate
defenses in an accusatory instrument, and thus was not required to allege defendants‘ status as tribal
members. [3] Even if the private property can be ―open and unclaimed,‖ the parties to the 1855 treaty
would not have considered the land at issue—which had signs of habitation, such as cabins, gates, roads,
drift fences, and signs at major points of entry—to be ―open and unclaimed.‖

DISMISSAL

        State v. Norkeveck, 214 Or App 553, 168 P3d 265 (2007). A dismissal of a case ―with
prejudice‖ does not preclude a separate prosecution for different charges, even if they arose from the
same criminal episode.

DISORDERLY CONDUCT

        State v. Rich, __ Or App __, __ P3d __ (March 19, 2008). ORS 166.025(1)(b), which creates
the crime of disorderly conduct for intentionally causing ―public inconvenience, annoyance or alarm‖ by
                                                                                                     31

making ―unreasonable noise,‖ is a content-neutral law that focuses on forbidden effects without
reference to expression. Thus, a conviction based on ORS 166.025(1)(b) does not violate Art. I, § 8,
unless it is unconstitutionally applied. Because the statute was applied against defendant because of
noncommunicative elements of his speech, his conviction did not violate Art. I, § 8.

DRIVING UNDER THE INFLUENCE OF INTOXICANTS

        DUII: diversion

        State v. Vargas-Garcia, 217 Or App 70, 174 P3d 1046 (2007). The trial court erroneously
dismissed defendant‘s DUII charge despite the fact that he had failed to pay the fees required by the
diversion agreement. Under ORS 813.255, the court ―shall terminate the diversion program and enter a
guilty plea‖ if ―the defendant fails to fulfill the terms of the diversion agreement.‖ The fees were a
condition of the diversion agreement; thus, the court had no authority to dismiss the DUII charge.

        DUII: field sobriety tests

         State v. Greenough, 216 Or App 426, 173 P3d 1227 (2007), rev den, 344 Or 280 (2008). No
protected privacy or possessory interest was violated by the officer‘s observation of defendant‘s refusal
to perform FSTs and to submit to a breath test. Defendant had no right to refuse the breath test, and his
refusals were not private, nor were they ―seized‖ by the officer when the officer observed them. The
state was not required to seek a warrant before obtaining evidence of defendant‘s refusals to submit to
the tests.

        DUII: breath test

         State v. Greenough, 216 Or App 426, 173 P3d 1227 (2007), rev den, 344 Or 280 (2008). No
protected privacy or possessory interest was violated by the officer‘s observation of defendant‘s refusal
to perform FSTs and to submit to a breath test. Defendant had no right to refuse the breath test, and his
refusals were not private, nor were they ―seized‖ by the officer when the officer observed them. The
state was not required to seek a warrant before obtaining evidence of defendant‘s refusals to submit to
the tests.

         State v. Bloom, 216 Or App 245, 172 P3d 663 (2007), rev den, 344 Or 280 (2008). Defendant
was arrested for DUII and consented to the breath test after the officer gave him the implied-consent
paperwork that did not state the amount of the fine that could be imposed for a refusal. ORS 813.130
requires an officer to advise a defendant that ―[i]f the person refuses a breath test under ORS 813.100,
the person is subject to a fine of at least $500 and not more than $1,000.‖ When defendant asked about
the potential fine, the officer erroneously told him that it was a ―large amount,‖ and that it could be
$5,000 or $10,000. Defendant submitted to the test; the result of a .11 percent BAC. Defendant moved
to suppress the breath-test results, and the trial court denied the motion. Held: Affirmed. Under
ORS 136.432, a failure to comply with a statute does not require suppression of evidence unless
suppression is constitutionally required or suppression is required by evidentiary rules governing
privileges or hearsay. Unless the statute itself requires suppression of evidence obtained as a result of a
statutory violation, there is no basis for judicial suppression of evidence. Because neither ORS 813.100
nor ORS 813.130 requires suppression for a failure to give complete advice under the implied-consent
statutes, the trial court correctly denied the motion to suppress.

        State v. Kirsch, 215 Or 67, 168 P3d 318 (2007). Defendant was arrested for DUII and initially
refused to take the breath test. The officer wrote ―refused‖ on the breath-test checklist, and then
32

continued to go through the other items on the checklist. After completing the checklist he again asked
defendant if he was willing to submit to the test, and defendant agreed to take the test (resulting in a .25
BAC). Defendant moved to suppress the BAC result, arguing that, under ORS 813.100(2), his initial
refusal precluded the officer from asking whether he wanted to change his mind. The circuit court
agreed, and ordered that the evidence be suppressed. Held: Reversed. Nothing precludes an officer
from inviting the defendant to reconsider an initial refusal. Although ORS 813.100(2) provides that ―no
chemical test of the person‘s breath … shall be given‖ if the person refuses the test, that statute does not
preclude an officer from noncoercively revisiting the defendant‘s willingness to take the test.

         State v. Matviyenko, 212 Or App 125, 157 P3d 268 (2007). Defendant was arrested for DUII
and, at the scene of the arrest, told the trooper that he wished to call an attorney; the trooper responded
that he could call an attorney from the patrol office. At the patrol office, defendant asked to call his
wife, and the trooper told him that he could make any phone calls at that time. He did not expressly tell
defendant that he could call an attorney, but he did not place any limits on who defendant could call.
The trooper remained seated at the desk next to defendant while defendant called his wife. After
speaking to his wife, defendant made no further phone calls and gave no other indication that he still
wanted to call an attorney. He then took the Intoxilyzer test. Defendant moved to suppress the breath-
test result, arguing that the trooper did not honor his right to have a confidential communication with an
attorney; the trial court denied the motion. Held: Reversed. By remaining in the room without
indicating to defendant that he would receive privacy if he wished to consult with an attorney, the
trooper did not fully honor defendant‘s request to consult with counsel. The right to consult with
counsel includes the right to consult privately with counsel.

        DUII: other evidence

         State v. Wyant, 217 Or App 199, 175 P3d 988 (2007). In defendant‘s prosecution for third-
degree-assault (based on an allegation that he acted recklessly with extreme indifference to the value of
human life) and other charges arising from a DUII crash, the state appealed from the circuit court‘s
pretrial ruling excluding evidence that defendant previously had been convicted of DUII in other
incidents. Held: Reversed. [1] The prior convictions are relevant to non-character issues of
recklessness and extreme indifference. State v. Cavaner, 206 Or App 131 (2006); State v. Hopkins, 173
Or App 1 (2001); and State v. Johnstone, 172 Or App 1 (2001). [2] Under OEC 404(4), the court may
not exclude evidence based on OEC 403 balancing; moreover, admission of the evidence would not
violate due process.

         State v. Prew, 213 Or App 336, 161 P3d 323 (2007). An OSP trooper videotaped the traffic stop
of defendant, including defendant‘s performance of FSTs and his inculpatory statements about the level
of his intoxication. The trooper, however, failed to inform defendant that he was filming the encounter.
Defendant moved to suppress both the videotape of his traffic stop and the trooper‘s testimony, and the
trooper testified in the pretrial hearing that he had reviewed the videotape to help refresh his memory.
Held: [1] Because defendant had not been informed of the taping, ORS 165.540 required suppression of
the videotape. [2] But the officer‘s testimony of his recollections of the traffic stop was admissible
because defendant had failed to prove that the officer‘s testimony came exclusively from his review of
the illegal videotape.

        DUII: sentencing

       State v. Rodriguez, 217 Or 24, 175 P3d 471 (2007). ORS 809.235(1)(b) (2003), which required
permanent revocation ―if the person is convicted [of DUII] … for a third time,‖ applies to the third or
any subsequent DUII.
                                                                                                     33

        Note: The 2005 legislature fixed the ―third time‖ problem by expressly requiring permanent
revocation upon conviction for the ―third or subsequent time.‖

        State v. Roberts, 216 Or App 238, 172 P3d 651(2007). Defendant appealed the judgment
imposed on her conviction for DUII, challenging the trial court‘s order suspending her driving privileges
for three years. She argued that the court erroneously considered her prior Idaho conviction in
calculating the suspension period under ORS 809.428(2), which prescribes suspension periods based on
the number of ―offense[s].‖ Defendant asserted that the term ―offense‖ refers only to Oregon offenses,
and thus argued that the court should have imposed only a one-year suspension, rather than a three-year
suspension. Held: Affirmed. The term ―offense‖ includes out-of-state offenses. As long as the conduct
underlying the out-of-state conviction is ―substantially similar‖ to what would constitute an Oregon
DUII, it is a DUII ―offense‖ within the meaning of ORS 809.428(2).

        State v. Terry, 214 Or App 56, 162 P3d 372 (2007). ORS 809.235(1)(b) does not violate Art I,
§ 20, by requiring a permanent revocation of driving privileges upon a third conviction for DUII under
ORS 813.010, despite defendant‘s contention that it discriminates unfairly on the basis of residence (by
excluding residents of other states). ―The statute distinguishes on the basis of where the person
committed the offense, not on the basis of where the person who committed the offense resides.‖
Moreover, because defendant committed the offense on which the revocation is based, he is responsible
for placing himself in the disadvantaged class.

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

         State v. Mersman, 216 Or App 194, 172 P3d 654 (2007), rev den, 344 Or __ (2008). For felony
DUII, a ―statutory counterpart‖ need not have precisely the same elements or scope. It is sufficient that
the statutes either are ―remarkably similar‖ or ―have the same use, role, or characteristics.‖ Defendant
was convicted under an Alaska statute that is broader than Oregon‘s DUII statute in that it requires only
that the defendant had ―physical control‖ over the vehicle, even without proof of driving. The court did
not decide whether the statutes are ―remarkably similar.‖ Rather, the court concluded that the statutes
have ―the same use, role, or characteristics.‖

DRUG OFFENSES

         State v. Rutley, 343 Or 368, 171 P3d 361 (2007). [1] The statute that defines the crime of DCS
within 1,000 feet of a school is outside of the criminal code, and thus, under ORS 161.105(1)(b), does
not require a culpable mental state because it ―clearly indicates a legislative intent to dispense with any
culpable mental state requirement for the offense or for any material element thereof.‖ [2] The
allegation that defendant committed the crime ―knowingly‖ did not require the state to prove
defendant‘s knowledge with regard to distance. At best, that allegation was ambiguous as to whether
the culpable mental state was intended to apply only to the delivery or to every circumstance in the
charge. ―Our disposition of the issue should not be read as accepting the Court of Appeals‘ proposition
that the state may be bound by the words of an indictment to prove a particular mental state respecting
an offense, even if the legislature did not intend to require such proof.‖

        State v. Birchfield, 342 Or 624, 157 P3d 216 (2007). Defendant, charged with PCS, objected to
admission of the crime-lab report on the ground that the criminalist was not present to be
cross-examined. The trial court admitted the report based on State v. Hancock, 317 Or 5 (1993), which
held that the ―subpoena‖ provision in ORS 475.235(5) is a ―reasonable procedure‖ that the defendant
must follow in order to confront the criminalist. Held: Reversed. Hancock ―was wrongly decided and
34

should no longer be relied upon.‖ ORS 475.235(5) places an impermissible burden on the defendant‘s
confrontation rights under Art I, § 11, by requiring him to subpoena the state‘s witnesses.
        Note: The 2007 legislature enacted HB 2340, which amends ORS 475.235 to permit the
admission of a lab report without the testimony of the criminalist unless the defendant provides notice to
the prosecutor of the defendant‘s intent to object to the admission of the report at least 15 days before
trial. HB 2340 became effective January 1, 2008. HB 2340 effectively sunsets on January 2, 2010,
unless the legislature enacts legislation to amend the statutes to renew the notice provision.

         State v. Choin, 218 Or App 333, __ P3d __ (2008). Defendant‘s unpreserved Art. I, § 11
challenge to the admission of the crime-lab report based on State v. Birchfield, 342 Or 624 (2007), was
reviewable as ―plain error.‖ Because defendant had made a ―closely related‖ hearsay objection to the
report, the policies of preservation are not offended by review of the unpreserved claim. And, because
the state‘s theory of ―delivery‖ was based solely on the amount of drugs possessed, the quantity of
methamphetamine was central to the state‘s case on the DCS charge.

         State v. Ruggles, 214 Or App 612, 167 P3d 471, adh’d to on recon, 217 Or App 384, 175 P3d
502 (2007), rev den, 344 Or 280 (2008). [1] The trial court properly denied defendant‘s chain-of-
custody challenge to the admission of his blood-test results based on the fact that several lab workers
handled the blood sample. The authentication requirement ―is satisfied by evidence sufficient to support
a finding that the matter in question is what its proponent claims.‖ OEC 901(1). The witness‘s reliance
on business records tracking the sample was sufficient. [2] Defendant‘s confrontation rights were
satisfied because he was able to cross-examine the declarant, the scientist who prepared the report.
None of the other technicians who handled the sample was a witness or a declarant of any out-of-court
statement.

         State v. Williamson, 214 Or App 281, 164 P3d 315, rev den, 343 Or 554 (2007). Defendant was
charged with MCS and PCS after she was found to have several plants and 3 ounces of marijuana in her
home. Defendant was an authorized medical marijuana cardholder, but she admitted that she had shared
marijuana with her boyfriend, a non-cardholder, and that she had taught him how to help her cultivate
the growing plants. She also admitted giving marijuana to other people. At trial, the prosecution sought
a jury instruction based on the statutory exception to the OMMA medical-marijuana affirmative defense,
stating that the defense is unavailable ―if the person, in connection with the facts giving rise to such
charges, delivers marijuana to any individual who the person knows is not in possession of a medical
marijuana card.‖ The court gave the instruction over defendant‘s objection that the evidence did not
support the instruction because there was no direct evidence that she possessed and manufactured the
particular marijuana found pursuant to the search warrant in connection with deliveries to non-
cardholders. Defendant was convicted at trial, and appealed. Held: Convictions affirmed. [1] The
evidence supported the jury instruction on the exception to the affirmative defense. A party is entitled to
a jury instruction on its theory of the case if the requested instruction (1) correctly states the law, (2) is
based on the operative pleadings, and (3) is supported by some evidence. Here, even without direct
evidence that defendant shared, or planned to share, the marijuana with her boyfriend, the jury could
infer that she did. [2] Defendant‘s argument that her unauthorized delivery was de minimis is irrelevant.
As the court held, ―the law contains no such exception.‖

        State v. Conklin/Betts/Land, 214 Or App 80, 162 P3d 364, mod on recon, 215 Or App 293, 168
P3d 1158 (2007). The trial court erred in denying defendant‘s motion for judgment of acquittal on the
―within 1000 feet of a school‖ element of the defendants‘ DCS charges. Although the park in which
defendants committed their DCS offenses is posted with signs stating that a school is within 1000 feet,
an officer testified that ―Sonshine School‖ is in a church within 1000 feet of the location of the delivery,
and he testified that ―I know it‘s a school primarily attended by minors,‖ no evidence was presented
                                                                                                     35

from which the jurors would find that the school is ―an elementary, secondary, or career school‖ within
the scope of ORS 475.999(1) (2003).
        See also State v. Clelland, 214 Or App 151, 162 P3d 1081 (2007) (same).

         State v. Rodriguez-Barrera, 213 Or App 56, 159 P3d 1201, rev den, 343 Or 224 (2007). The
police stopped defendant‘s vehicle as he drove within 1000 feet of a school, and a search discovered
methamphetamine packaged for sale. Held: Defendant correctly was found guilty of DCS within 1000
feet of a school, ORS 475.904(1). The state did not have to prove in addition that he intended an actual
delivery within that school zone.

         State v. Alvarez-Garcia, 212 Or App 663, 159 P3d 357 (2007). Defendant was convicted of
DCS based on his possession of 13.2 grams of methamphetamine. He argued that the mere possession
of a large amount of controlled substances, absent any accompanying evidence associated with the
delivery of drugs, was insufficient evidence to prove that he had the intent to transfer the drugs to
anyone else. Held: Affirmed. Given that defendant had divided up the drugs into two packages, one of
which contained a typical user amount, a reasonable factfinder could infer that he had divided the drugs
into two packages because he intended to transfer one of the packages.

         State v. Fries, 212 Or App 220, 159 P3d 10, rev allowed, 343 Or 363 (2007). Defendant was
convicted of PCS for helping a friend move, during which he carried several of the friend‘s marijuana
plants out of the apartment and placed them in the car. Defendant moved unsuccessfully for a judgment
of acquittal contending that, because the friend, who owned the marijuana, had a ―medical marijuana
card,‖ defendant was permitted to possess the marijuana at the direction of his friend. Held: Affirmed.
By carrying the plants out to the car, defendant committed PCS by physically ―possessing‖ the plants.
The fact that he may have possessed the plants under someone else‘s direction and control does not alter
that fact, and his conduct was not otherwise authorized by the OMMA.

ESCAPE OFFENSES

        State v. Lonergan, 344 Or 15, 176 P3d 374 (2008). Defendant was convicted for second-degree
escape in violation of ORS 162.155(1)(a) based on facts that he ran away from a police officer who was
attempting to arrest him, and then struggled with and kicked the officer after the officer tackled him.
Held: Reversed. There was no evidence that defendant used or threatened to use ―physical force
escaping from custody.‖ Defendant ―escaped‖ by running away; he did not use force until after he was
recaptured. Because his escape was ―completed‖ when he departed from the officer‘s custody, he did
not use force in accomplishing the escape. Thus, he committed only the misdemeanor offense of third-
degree escape in violation of ORS 162.145 by escaping ―from custody.‖ At most, his conduct after
being tackled constituted resisting arrest.

EVIDENCE
     See also ―Confessions / Miranda,‖ above; ―Search and Seizure,‖ below.

        Evidence: sufficiency of objection
        See also ―Appeals: preservation of error,‖ above.

        State v. Tyler, 213 Or App 109, 159 P3d 1218 (2007). Prior to trial, the defendant moved to
introduce evidence suggesting that another sex offender, who was present in defendant‘s home, had
sexually abused the victim, who was partially asleep at the time. The trial court preliminarily indicated
the offered evidence was not admissible but reserved ruling until during the trial. Defendant did not
renew the issue at trial and, in fact, told the court he thought the court had excluded the evidence. Held:
36

Defendant failed to preserve his issue because he failed to obtain an actual ruling from the trial court.

        Evidence: applicability of Evidence Code (OEC 101)

        State v. Hammond, __ Or App __, __ P3d __ (March 19, 2008). Because the Oregon Evidence
Code does not apply to probation-violation proceedings, and because no other provision precludes
consideration of polygraph results in a probation-violation proceeding, the circuit court permissibly
considered defendant‘s deceptive polygraph result in concluding that defendant had not been truthful
with his probation officer.

        Evidence: relevance (OEC 401, 402)

         State v. Hess, 342 Or 647, 159 P3d 309 (2007). Defendant was charged with felony public
indecency, ORS 163.465. Prior to trial, he stipulated to his prior public-indecency convictions and the
court, over the state‘s objection, removed the prior-convictions element from the jury‘s consideration.
The state appealed. Held: Affirmed. Because defendant‘s ―judicial admission unconditionally resolved
the prior convictions issue in the state‘s favor and left only a sentencing issue for the court,‖ the prior
conviction became irrelevant in the guilt phase and the trial court properly excluded it.
         Note: The court did not resolve whether the prior-conviction allegation is ―a sentencing factor
rather than an element of the crime.‖ It is not clear whether this ruling applies to an element other than a
prior-conviction allegation that is used to enhance the seriousness of the offense for sentencing
purposes.

        Evidence: character evidence (OEC 404)

        State v. Brown, 217 Or App 330, 176 P3d 400 (2007). In defendant‘s trial for aggravated
murder of two drug dealers, the trial court correctly admitted evidence showing that, a few weeks
previously, defendant had concocted a plan to use a gun to rob a different drug dealer and then to kill
him in order to conceal the crime. When that plan had derailed, defendant indicated that he intended to
engage in something similar in the future. Other evidence showed that defendant had attempted to set
up drug deals with two other men, but that they backed out when they suspected that defendant was
going to rob them. The evidence was relevant to ―common scheme or plan,‖ a non-character purpose.
Defendant‘s initial conspiracy to use a handgun to kill a drug dealer and leave no witnesses makes it
more likely than not that he used the same plan to ultimately carry out the robbery and murder.
Although the plan was not elaborate or detailed, and some differences existed between the conspiracy
and the murder, the prior acts were consistent with the ―overall plan to rob and kill a drug dealer.‖
        Note: The court discussed the difference between the use of evidence of ―signature crimes‖ to
prove the identity of the person who committed a repeated version of the crime and the use of evidence
such as that in this case, which establishes crimes that constitute a more general plan.

         State v. Wyant, 217 Or App 199, 175 P3d 988 (2007). In defendant‘s prosecution for third-
degree-assault (based on an allegation that he acted recklessly with extreme indifference to the value of
human life) and other charges arising from a DUII crash, the state appealed from the circuit court‘s
pretrial ruling excluding evidence that defendant previously had been convicted of DUII in other
incidents. Held: Reversed. [1] The prior convictions are relevant to non-character issues of
recklessness and extreme indifference. State v. Cavaner, 206 Or App 131 (2006); State v. Hopkins, 173
Or App 1 (2001); and State v. Johnstone, 172 Or App 1 (2001). [2] Under OEC 404(4), the court may
not exclude evidence based on OEC 403 balancing; moreover, admission of the evidence would not
violate Due Process.
                                                                                                   37

         State v. Phillips, 217 Or App 93, 174 P3d 1032 (2007). [1] Defendant‘s involvement in a prior
theft from the same victim was relevant to defendant‘s general ―plan‖ to steal from the victim, and thus
was relevant to his identity as one of the robbers in this robbery/kidnapping offense. [2] Under
OEC 404(4), relevant evidence of a defendant‘s prior bad acts is admissible without OEC 403
balancing, because OEC 404(4) affirmatively precludes OEC 403 ―balancing‖ of probative value and
prejudicial effect.

       Evidence: rape-shield law (OEC 412)

        State v. Norkeveck, 214 Or App 553, 168 P3d 265 (2007). In defendant‘s trial for sexually
abusing a child victim, the trial court correctly applied OEC 412 in denying his motion to admit
evidence that the victim had previously reported unrelated abuse and that she had acted out sexually
toward defendant‘s son on occasions unrelated to the charged offenses. [1] Evidence of the victim‘s
past sexual behavior was properly excluded under OEC 412. The evidence was not relevant to rebut any
medical evidence that the state would offer; thus, it was not admissible under OEC 412(3)(b)(B).
[2] Even if it had some probative value under OEC 412(3)(b)(A) as to the victim‘s motive to fabricate,
that probative value is outweighed by the danger of unfair prejudice, and thus was properly excluded
under OEC 412(4)(c).

       Evidence: impeachment of witness (OEC 607)

         Quimby v. Hill, 213 Or 124, 159 P3d 1264, rev den, 343 Or 223 (2007). The post-conviction
court correctly dismissed petitioner‘s claim that his counsel should have objected when the prosecutor
―called her own witness a liar six times.‖ OEC 607 allowed the prosecutor to challenge the credibility
of the state‘s own witness, and the rule barring a witness from commenting on the credibility of another
witness ―does not prohibit a party from attacking the credibility of any witness.‖

       Evidence: impeachment for bias (OEC 609-1)

        State v. Shelly, 212 Or App 65, 157 P3d 234 (2007). Defendant sought to cross-examine the
robbery victim about the fact that he was on probation and had committed past probation violations.
The trial court rejected defendant‘s argument that the evidence demonstrated that the victim had a
motive to testify untruthfully to curry favor with the state. Held: Reversed. [1] Evidence that a person
is on probation and at risk of having that probation revoked is generally relevant to that person‘s
credibility when he or she testifies for the prosecution in a criminal case, except in extraordinary
circumstances. [2] Although a trial court generally has some authority to limit impeachment evidence
based on OEC 403, its discretion to limit impeachment evidence that goes to bias or interest applies only
to evidence that amplifies, develops, or elaborates an ―initial showing‖ or bias or interest. Because the
proffered evidence was the only evidence of interest and, thus, was the ―initial showing,‖ the court was
required, as a matter of law, to admit it. [3] The erroneous exclusion of the evidence was not harmless,
because the victim was the sole witness to the crime, and his credibility was likely to have affected the
outcome of the trial.

       Evidence: expert testimony (OEC 702)

       State v. Johnson, 342 Or 596, 157 P3d 198 (2007). The trial court properly ruled that, if
defendant offered expert testimony to compare two sets of footprints that were found at the scene, he
would be opening the door to the admission of previously suppressed evidence that the state had
examined defendant‘s boots and found that they were consistent with one set of prints found at the
scene. Defendant‘s proffered evidence would have created an incorrect inference that the state had
38

failed to test critical evidence; moreover, the court allowed defendant to offer lay testimony that there
were two types of prints, and the benefit of using expert testimony would have been ―slight, if
nonexistent.‖

         State v. Norman, 216 Or App 475, 174 P3d 598 (2007). In defendant‘s trial for attempt to elude
and four counts of attempted first-degree assault committed against officers who attempted to stop his
truck as he barreled toward them, the trial court correctly refused to permit defendant‘s expert to opine
that the officers violated deadly-force policies by drawing their firearms. The trial court did not
preclude defendant from presenting his defense—i.e., that the officers‘ conduct, which defendant
claimed exceeded the scope of their lawful authority, justified defendant‘s conduct in continuing to
drive while they tried to stop him—and defense counsel was not precluded from arguing that the
officers acted inappropriately and hence had a motive to lie. The ruling precluded defendant from
offering only a small piece of evidence—i.e., his expert‘s opinion that the officers violated their
policies—and its ruling in that respect was not error.

        Evidence: statements that are non-hearsay (OEC 801(4))

         State v. Clark, 217 Or App 475, 175 P3d 1006 (2008). Defendant was convicted of murdering
his ex-girlfriend by beating her to death. At the scene, defendant, who was covered in blood,
volunteered that he had ―hurt [the victim] real bad,‖ and asked the officers to shoot him. At trial, the
trial court allowed, over defendant‘s objection, testimony from a friend of the victim that, a few nights
before the murder, the victim had told her in the presence of the defendant, who was within earshot at
the bar that they frequented, that defendant had threatened to kill her. The trial court found that
defendant heard the statement and failed to react, and that he thereby ―adopted‖ the truth of her
statement by his silence. On appeal, defendant reasserted his objection to the testimony, arguing that his
silence was not an ―adoptive admission‖ under OEC 801(4)(b)(B). Held: Reversed. Even if a person
can ―adopt‖ an admission merely by remaining silent, defendant‘s silence in this case was insufficient.
Although defendant heard the accusatory statement, there are many reasons why he may have chosen
not to respond. The conversation occurred in a bar that was open to the public, and defendant was a
bystander, not a participant in the conversation. Because he did not behave in any way that manifested
an adoption or a belief in the victim‘s statement, the evidence is inadequate to support an inference that
he adopted the statement. The error was not harmless.

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

         State v. Lucas, 213 Or App 277, 160 P3d 1012 (2007) (per curiam). The state mailed a
subpoena to the ―excited utterance‖ declarant but did not take steps to personally serve her. Several
days before trial, the state was informed that the declarant had left town because she was too frightened
to testify, but the state did not take any further steps to try to secure the declarant‘s appearance. Held:
Although OEC 803(2) does not require the state to prove a declarant is ―unavailable‖ in order to admit
excited utterances into a trial, Art I, § 11, does. Here, the state failed to make good-faith effort to
produce the declarant at trial or to demonstrate that the declarant was otherwise not available to testify.

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

         State v. Hobbs, 218 Or App 298, __ P3d __ (2008). [1] Statements regarding the circumstances
of abuse are statements ―concerning an act of abuse‖ under OEC 803(18a)(b) even if they do not
describe the acts themselves. The rule includes evidence about the victim‘s demeanor and emotional
state, as well as the victim‘s report that ―set[s] the scene for the act.‖ That includes the victim‘s
statements about the abuse, the events leading up to it, and her feelings during and afterward. [2] Even
                                                                                                     39

if defendant‘s OEC 403 objection were preserved, any error in admitting statements about the victim‘s
feelings was harmless because it was merely cumulative of her testimony and other evidence.

         State ex rel. Juv. Dept. of Mult. Co. v. S.P., 218 Or App 131, __ P3d __ (2008). Defendant‘s
unpreserved argument that OEC 803(18a)(b) precludes a court from accepting the parties‘ stipulation to
the victim‘s unavailability was not ―plain error,‖ despite language in State v. Campbell, 299 Or 633
(1985), suggesting that it would be error.

        State v. Kayfes, 213 Or App 543, 162 P3d 308, rev den, 343 Or 390 (2007). Defendant, a
former middle-school teacher and coach, was charged with numerous sexual offenses involving a
student. At trial, the 16-year-old victim refused to testify. Over defendant‘s objection, the trial court
admitted her recorded statements and other statements to the police and grand jury under the residual
hearsay exception, OEC 803(28). Held: Affirmed. [1] Because another hearsay exception provision
specifically applied, the trial court erred in using the residual hearsay exception to admit the victim‘s
statements. OEC 803(18)(a) would allow the admission of the fact that the victim reported abuse, but
the details of the victim‘s reported abuse would not be admissible under subsection (b), because the
victim was over 12 years old and was unavailable to testify. [2] But this error was harmless, because the
victim‘s statements to the police and grand jury were cumulative to other evidence properly admitted.

         State v. Foreman, 212 Or App 109, 157 P3d 228, rev den, 343 Or 223 (2007). The trial court
admitted out-of-court statements made by the non-testifying child victim to her mother regarding sexual
abuse. In doing so, it rejected defendant‘s argument that there was insufficient ―corroborative evidence
of the act of abuse and of the alleged perpetrator‘s opportunity to participate in the conduct,‖ as required
by OEC 803(18a)(b). Held: Affirmed. [1] Although defendant claimed that he had never been alone
with the victim, the ―corroborative evidence‖ requirement does not require dispositive proof that the
defendant had the opportunity to commit the offense; rather, it is necessary only that there be some
―independent evidence that tends to strengthen, confirm, or make more certain the matter in support of
which it is offered.‖ [2] Defendant‘s argument that the admission of the victim‘s statements to an
examining physician is plain error under Crawford also fails; a reasonable dispute exists as to whether
the victim‘s statements were made for the purpose of treatment, rather than to assist in a police
investigation.

        Evidence: hearsay exceptions–residual hearsay exception (OEC 803(28))

        State v. Kayfes, 213 Or App 543, 162 P3d 308, rev den, 343 Or 390 (2007). Defendant, a
former middle-school teacher and coach, was charged with numerous sexual offenses involving a
student. At trial, the 16-year-old victim refused to testify. Over defendant‘s objection, the trial court
admitted her recorded statements and other statements to the police and grand jury under the residual
hearsay exception, OEC 803(28). Held: Affirmed. [1] Because another hearsay exception provision
specifically applied, the trial court erred in using the residual hearsay exception to admit the victim‘s
statements. OEC 803(18)(a) would allow the admission of the fact that the victim reported abuse, but
the details of the victim‘s reported abuse would not be admissible under subsection (b), because the
victim was over 12 years old and was unavailable to testify. [2] But this error was harmless, because the
victim‘s statements to the police and grand jury were cumulative to other evidence properly admitted.

        Evidence: statements against interest (OEC 804(3))

       State v. Edwards-Peecher, __ Or App __, __ P3d __ (March 5, 2008). Exculpatory statements
by defendant‘s son did not qualify as statements against interest under OEC 804(3)(c) because the
circumstances did not ―clearly indicate the trustworthiness of the [son‘s] statements [exculpating the
40

defendant],‖ as required by OEC 804(3)(c). The rule is based on a common-law suspicion of statements
of penal interests based on the perceived unreliability of exculpatory statements of people who become
unavailable to testify at trial. The parent-child relationship between the son and defendant makes his
statements particularly unreliable; moreover, the timing of his statements suggests that he belatedly
fabricated his account to assist his mother‘s defense.

        Evidence: authentication, chain of custody (OEC 901)

        State v. Ruggles, 214 Or App 612, 167 P3d 471, adh’d to on recon, 217 Or App 384, 175 P3d
502 (2007), rev den, 344 Or 280 (2008). The trial court properly denied defendant‘s chain-of-custody
challenge to the admission of the result of his blood test, notwithstanding that not all of the lab workers
who handled the sample testified. The authentication requirement ―is satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent claims.‖ OEC 901(1). The witness‘s
reliance on business records tracking the sample was sufficient.

        Evidence: other—stipulations, judicial admissions

         State v. Hess, 342 Or 647, 159 P3d 309 (2007). Defendant was charged with felony public
indecency, ORS 163.465. Prior to trial, he stipulated to his prior public-indecency convictions and the
court, over the state‘s objection, removed the prior-convictions element from the jury‘s consideration.
The state appealed. Held: Affirmed. Because defendant‘s ―judicial admission unconditionally resolved
the prior convictions issue in the state‘s favor and left only a sentencing issue for the court,‖ the prior
conviction became irrelevant in the guilt phase and the trial court properly excluded it.
         Note: The court did not resolve whether the prior-conviction allegation is ―a sentencing factor
rather than an element of the crime.‖ It is not clear whether this ruling applies to an element other than a
prior-conviction allegation that is used to enhance the seriousness of the offense for sentencing
purposes.

         State v. Brostrum, 212 Or App 486, mod on recon, 214 Or App 604, 167 P3d 460 (2007). [1] In
light of State v. Hess, 342 Or 647 (2007), the trial court erred by refusing to accept defendant‘s
stipulation and by admitting evidence of the ―prior conviction‖ issue before the jury. Because the
stipulation ―established the fact of the prior conviction conclusively, [it] relieved the state of its burden
to prove that element of the charges.‖ [2] The error was harmless, because the prior conviction was
substantively admissible to refute defendant‘s claim that she was merely trying to restrain the victim to
calm him. Moreover, defendant opened the door to the evidence by arguing that, although she had
previously assaulted the child as a result of drinking, she did not do so in this case.

        Evidence: other—Confrontation Clause, Crawford objections

        Danforth v. Minnesota, __ US __, __ S Ct __, __ L Ed 2d __ (Feb 20, 2008). The state
supreme court erred when it held that it could not apply rule announced in Washington v. Crawford ,
541 US 36 (2004), retroactively in state-court proceeding because the Court had held in Whorton v.
Bockting that that rule does not apply retroactively under Teague v. Lane, 489 US 288 (1989). The
limitation on retroactive application prescribed by the Teague rule applies only in federal habeas corpus
proceedings; that limitation does not bind the states in their own state-court proceeding.
        Note: The Oregon Supreme Court previously had held in Miller v. Lampert, 340 Or 1 (2006),
that Teague rule applies in state post-conviction proceedings.

       Whorton v. Bockting, 549 US __, 127 S Ct 1173, 167 L Ed 2d 1 (2007). The rule in Crawford
does not apply retroactively to cases already final on direct review. [1] Because petitioner‘s habeas
                                                                                                    41

corpus petition was pending when Crawford was announced, his claim necessarily depends on whether
that rule applies retroactively under Teague v. Lane, 489 US 288 (1989). [2] The decision in Crawford
was not ―dictated‖ by prior decisions (indeed it overruled a prior decision), and hence it is a ―new rule‖
for purposes of Teague. [3] The Crawford rule does not fit within the exception for a ―watershed rule‖
under the Teague framework. It is not sufficient that the new rule is based on a ―bedrock‖ right—rather,
―a new rule must itself constitute a previously unrecognized bedrock procedural element that is essential
to the fairness of the proceeding.‖ The Crawford rule also does not necessarily increase the reliability of
evidence admitted.

        State v. Camarena, 344 Or 28, 176 P3d 380 (2008). [1] Statements to a 911 operator acting as a
police agent are not necessarily ―testimonial.‖ Under Davis v. Washington, 547 US 813, 126 S Ct 2266,
165 L Ed 2d 224 (2006), the ―proper inquiry‖ is ―whether the totality of the ‗circumstances objectively
indicat[e] that the primary purpose of the interrogation [was] to enable police assistance to meet an
ongoing emergency.‘‖ Relevant factors include: (1) the temporal relationship between the statements
and the event described; (2) whether the victim‘s statements related to the immediate identification of,
and response to, an emergency, rather than investigating past criminal conduct and developing
information for use in a later prosecution; and (3) the relative formality of the interview setting and
whether the victim‘s statements were ―frantic,‖ as opposed to deliberate. [2] The victim‘s statements
here were not testimonial. The Supreme Court faulted the Court of Appeals for giving an undue
emphasis on the motives of the operator in asking questions, without sufficient consideration of the
nature of the victim‘s answers. But the Supreme Court agreed that the statements were not testimonial.
Although the attack had passed, the victim made the call within one minute after defendant left the
home. A reasonable person could infer that she faced an ongoing emergency. There was at least a
reasonable likelihood that defendant might soon return to the home, and the victim‘s identification of the
assailant and her location were both necessary to terminate the ongoing emergency.

        State v. Birchfield, 342 Or 624, 157 P3d 216 (2007). Defendant, charged with PCS, objected to
admission of the state-lab report on the ground that the criminalist was not present to be cross-examined.
The trial court admitted the report based on State v. Hancock, 317 Or 5 (1993), which held that the
―subpoena‖ provision in ORS 475.235(5) is a ―reasonable procedure‖ that the defendant must follow in
order to confront the criminalist. Held: Reversed. Hancock ―was wrongly decided and should no
longer be relied upon.‖ ORS 475.235(5) places an impermissible burden on the defendant‘s
confrontation rights under Art I, § 11, by requiring him to subpoena the state‘s witnesses.
        Note: The 2007 legislature passed HB 2340, which amends ORS 475.235 to permit the
admission of a lab report without the testimony of the criminalist unless the defendant provides notice to
the prosecutor of the defendant‘s intent to object to the admission of the report at least 15 days before
trial. HB 2340 became effective January 1, 2008. HB 2340 effectively sunsets on January 2, 2010,
unless the legislature enacts legislation to amend the statutes to renew the notice provision.

        State v. Norby, __ Or App __, __ P3d __ (March 19, 2008). Despite the fact that the victim‘s
reports of the abuse to her family members were non-testimonial and thus were lawfully admitted, the
erroneous admission of testimonial statements (statements made during a CARES interview) was not
harmless because the witness who testified about the statements was an ―expert,‖ whose repetition of the
victim‘s statements was likely to be given greater weight in the jury‘s eyes.

        State v. Shelton, __ Or App __, __ P3d __ (March 19, 2008). Even if ―testimonial,‖ the victim‘s
statement to a medical assistant, who was speaking with her in the course of the police investigation of
the abuse was harmless in light of the fact that the victim made similar statements to her babysitter, and
those statements were properly admitted at trial.
42

        State ex rel. Juv. Dept. of Multnomah County v. S.P., 218 Or App 131, __ P3d __ (2008).
[1] The victim‘s statements to CARES evaluators were ―testimonial‖ under Crawford, because the
CARES interview process serves ―multiple concurrent purposes,‖ one of which is to minimize the
likelihood of contamination of a child‘s statements, and because the involvement of law enforcement in
the CARES process is ―pervasive.‖ [2] The Crawford error was harmless as to the sexual-abuse
conviction. Because the child also had made non-testimonial statements to his mother regarding the
sexual abuse, and because those statements corroborated youth‘s confession, any error in admitting the
testimonial statements was harmless. [3] Because the juvenile court‘s original error in admitting the
CARES statements may have actually caused the state not to offer other evidence to support defendant‘s
confession to sodomy, the appellate court remanded for further proceedings to give the state the
opportunity to offer evidence to corroborate the confession.

         State v. Sullivan, 217 Or App 208, 174 P3d 1095 (2007). The fact that cross-examination was
not effective does not mean that defendant‘s lacked that opportunity. Defendant had a full and fair
opportunity to cross-examine the victim about her testimony and about her lack of memory about certain
specifics, and was not precluded from arguing that the jury should give her incomplete testimony scant
weight. The fact that she chose to respond only selectively did not render her ―unavailable‖ under either
Art I, § 12, or the Sixth Amendment.

         State v. Beaman, 216 Or App 181, 171 P3d 402 (2007), rev den, 344 Or 109 (2008). Defendant
appealed from his convictions for numerous crimes stemming from a series of burglaries, arguing that
the trial court violated his federal Confrontation Clause rights by admitting officers‘ accounts of the out-
of-court statements of an accomplice who did not testify. Held: Affirmed. Although the admission of
the statements violated Crawford, the error was harmless because the evidence was merely cumulative
of testimony given by other accomplices.

         State v. Sine, 214 Or App 656, 167 P3d 485 (2007). Defendant was convicted of conspiracy to
supply contraband based in part on evidence of a plea petition completed by his wife in a case involving
charges against her based on the same conduct. The wife refused to testify, invoking her spousal
privilege under OEC 505, but the trial court received the plea petition in which she stated that she had
been ―involved with a plan to introduce controlled substance into [a correctional facility] and I mailed a
letter containing controlled substance‖ over defendant‘s Crawford objection. Held: Reversed. [1] The
plea petition was ―testimonial.‖ A statement is testimonial if it is a ―solemn declaration or affirmation
made for the purpose of establishing or proving some fact.‖ In Crawford, the Court categorized plea
allocutions by accomplices as ―plainly testimonial.‖ [2] The trial court erroneously concluded that the
victim was ―available‖ to testify. Under Douglas v. Alabama, 380 US 415, 419-20 (1965), the assertion
of a privilege renders a witness unavailable for cross-examination under the Sixth Amendment.

         State v. Ruggles, 214 Or App 612, 167 P3d 471, adh’d to on recon, 217 Or App 384, 175 P3d
502 (2007), rev den, 344 Or 280 (2008). [1] The trial court properly denied defendant‘s chain-of-
custody challenge to the admission of his blood-test results based on the fact that several lab workers
handled the blood sample. The authentication requirement ―is satisfied by evidence sufficient to support
a finding that the matter in question is what its proponent claims.‖ OEC 901(1). The witness‘s reliance
on business records tracking the sample was sufficient. [2] Defendant‘s confrontation rights were
satisfied because he was able to cross-examine the declarant, the scientist who prepared the report.
None of the other technicians who handled the sample was a witness or a declarant of any out-of-court
statement.

        State v. Ennis, 212 Or App 240, 158 P3d 510, rev den, 343 Or 223 (2007). Before his joint trial
with other defendants on charges of felony murder, burglary, and robbery, defendant moved to suppress
                                                                                                    43

various out-of-court statements made by his codefendants and other witnesses to the police. The trial
court denied the motion and admitted several hearsay statements through the testimony of third parties.
In accordance with Bruton v. United States, 391 US 123 (1968), statements by the non-testifying
codefendants that inculpated themselves and defendant were redacted to remove any direct reference to
defendant; however, a statement of one codefendant identified defendant as a long-time acquaintance,
and the remainder of the statements referred to the involvement of another person in possessing the gun
and committing the homicide. Defendant raised the affirmative defense in ORS 163.115(3), based on
his claims that he was unarmed, that he did not encourage the homicide, that he lacked reasonable
grounds to believe that other participants were armed, and that he did not believe that others intended to
engage in conduct likely to result in a death Held: Reversed. [1] Under Crawford, defendant‘s
Confrontation Clause rights were violated because: (a) The statements, which were made in response to
police questioning, were clearly ―testimonial‖ under Crawford. (b) At least some of the statements were
made by codefendants and other unavailable declarants whom defendant previously had not been able to
cross-examine. (However, some of the statements were double hearsay and thus posed ―a slightly more
complicated analysis.‖ The principle ―in Crawford is implicated only if one or more levels of multilevel
hearsay involve both a testimonial statement and the unavailability of—and lack of prior opportunity to
cross-examine—the declarant of that statement.‖ Thus, admission of statements made to police by
people who ultimately testified at trial did not violate the Confrontation Clause because, although the
statements were testimonial, each of those people was available for cross-examination.) (c) The
testimonial statements of co-defendants were ―offered against‖ defendant. Although the redacted
statements of the non-testifying codefendants did not directly inculpate defendant, admitting the
redacted statements still violated defendant‘s Confrontation Clause rights. Viewed in the context of the
unredacted statements referring to defendant and other evidence at trial, ―both the existence and the
identity of the other participants in the crime were readily inferable from the redacted statement itself.‖
[2] Admission of the evidence was not harmless because it impaired defendant‘s ability to prove his
affirmative defense.

         State v. Graves, 212 Or App 196, 157 P3d 295 (2007). Defendant was convicted of domestic
assault for kicking a woman in the face and threatening to kill her and her 8-year-old son. The trial
court admitted out-of-court statements of the two victims based on the then-current Confrontation
Clause analysis under Ohio v. Roberts, 448 US 56 (1980). Held: Reversed. [1] Even under Crawford,
the trial court correctly admitted evidence that the boy had called down to the responding police officers
from an upstairs window and stated that defendant had left on foot after kicking the woman in the face.
The officer‘s primary purpose at that time was to enable him to respond to a potential ongoing
emergency, and thus the child‘s statement was not testimonial. [2] Admission of all other statements
made by the victims after the officers searched the home and confirmed that defendant had left was
―plain error‖; the objective circumstances showed that the primary purpose of the statements was to
report a past offense for use in a later criminal prosecution, so the statements were ―testimonial‖ under
Crawford. [3] Admission of the statements was not harmless, because they were not merely cumulative
of the child‘s statement from the upstairs window, and because there was no other evidence of the
offenses.

         State v. Foreman, 212 Or App 109, 157 P3d 228, rev den, 343 Or 223 (2007). The trial court
admitted out-of-court statements made by the non-testifying child victim to an examining physician
regarding sexual abuse. Defendant did not object, but on appeal he argued that the admission of the
victim‘s statements to the physician was plain error under Crawford. Held: Admission of the statements
is not plain error, because a reasonable dispute exists as to whether the victim‘s statements were made
for the purpose of treatment, rather than to assist in a police investigation.

        State v. Gonzalez, 212 Or App 1, 157 P3d 266 (2007). In a probation-violation hearing, the
44

prosecution called defendant‘s probation officer to testify based on the report of a police officer who had
made contact with defendant and reported the violations. Defendant argued that admission of the
testimony violated his Sixth Amendment right to confront the officer about his out-of-court statements,
but the trial court overruled his objection and extended the term of probation. Held: Affirmed. The
Sixth Amendment Confrontation Clause applies only to ―criminal prosecutions,‖ which means criminal
trials; thus, it does not apply to probation-violation proceedings.
         Note: The court did not address defendant‘s separate argument that the admission of the
testimony violated the Due Process Clause.

        State v. Davis, 211 Or App 550, 156 P3d 93 (2007). Admission of a computer printout of
defendant‘s driving record did not violate her rights under the Confrontation Clause under Crawford.
Because the report is kept for business purposes and not for later use in a criminal prosecution, it is not
―testimonial.‖ The court did not decide whether an accompanying document (a copy of the Implied
Consent form given to defendant at the time of the events underlying the suspension) also was
testimonial, because it did not relate to any issue that the jury had to decide, and thus any error in
admitting it was harmless.

EX POST FACTO

        State v. Betnar, 214 Or App 416, 166 P3d 554 (2007). ORS 163.684 prohibits the act of
duplication or printing of sexually explicit images of children. There is no ex post facto prohibition on
application of the statute to acts of duplication or printing, performed after the statute‘s effective date, of
images created before the statute‘s effective date.

FORMER JEOPARDY

         State v. Norkeveck, 214 Or App 553, 168 P3d 265 (2007). The trial court correctly rejected
defendant‘s former-jeopardy challenge to an indictment on charges of second-degree encouraging child
sexual abuse based on images found on defendant‘s computer. Defendant previously had been charged
with first-degree encouraging child sexual abuse based on different images, but the circuit court had
dismissed that case with prejudice based on a discovery violation by the state. A case that terminates by
pretrial dismissal is not a ―prosecution‖ for purposes of ORS 131.505. The fact that the trial court
dismissed the case ―with prejudice‖ does not preclude a separate prosecution for different charges.

GRAND JURY

         State v. Burleson, 342 Or 697, 160 P3d 624 (2007). In a grand-jury investigation of an
anesthesiologist for sexually abusing anesthetized patients, a dentist who was served with a subpoena
duces tecum refused to provide unredacted medical records that would identify the victims. His refusal
was not based on a self-incrimination claim; rather, he was concerned that disclosure of the victims‘
identities would cause them to avoid further treatment. At the grand jury‘s request, the state moved to
hold the witness in remedial contempt and to compel production of the records. The trial court denied
the motion, concluding that although the evidence sought was relevant and not privileged, public-
interest considerations in ORS 136.617 supported nondisclosure. The state petitioned for a writ of
mandamus. Held: The trial court erroneously refused to compel the witness to comply with the
subpoena. [1] The trial court correctly did not hold the witness in contempt based on his refusal to
comply with the grand jury‘s subpoena. Contempt is a refusal to comply with the order of a court.
ORS 33.015. Because the witness had not refused to comply with any court order requiring him to
testify over his objection, contempt was not yet appropriate. The court emphasized that, although the
prosecutor is authorized to obtain and produce evidence to present to the grand jury, it is ultimately the
                                                                                                     45

grand jury‘s decision whether to press for the production of evidence after a witness has refused to
cooperate fully. If a witness refuses to provide information, the grand jury may decide that further
inquiry is not needed. But if the grand jury determines that the inquiry is necessary, it must seek a court
order requiring the witness to comply. Thus, a witness does not risk contempt merely by refusing a
request for evidence or testimony; rather, a witness may be held in contempt only when he refuses to
comply with an order of the court. [2] ORS 136.617 establishes a procedure by which a court may
compel the testimony of a grand-jury witness who has invoked the right against compelled self-
incrimination. That statute provides that the court ―shall‖ order production of evidence upon a finding
that no privilege protects the evidence sought, unless production would be clearly contrary to the public
interest.‖ That ―public interest‖ exception did not apply in this case, because there had been no
assertion by the witness of a privilege against compelled self-incrimination.

GUILTY PLEAS

        Wright v. Van Patten, 552 US __, 128 S Ct __, 169 L Ed 2d 583 (2008) (per curiam).
Petitioner was not entitled to federal habeas corpus relief based on claim that he entered no-contest plea
during which his counsel participated through speakerphone; the Court rejected Seventh Circuit‘s
reasoning that circumstance constituted complete deprivation of counsel under United States v. Cronic.

         State v. Cervantes-Oropeza, 215 Or App 518, 170 P3d 1114 (2007). Defendant appealed from a
judgment imposing sentence on his conviction for felony DUII, arguing that the sentencing court had
erroneously considered his prior DUII convictions (which were based on guilty pleas) in determining his
criminal-history score. He asserted that the prior convictions were invalid on the ground that the state
had failed to prove that he had executed written jury waivers in those cases. Held: Affirmed. The
Oregon Constitution does not require the defendant to execute a written waiver of jury trial in order to
enter a guilty plea. Art. I, § 11 requires a written waiver in the event that the defendant elects to waive
trial by jury ―and consent to be tried by the judge of the court alone.‖ But the constitutional text, the
pertinent case law, and the historical circumstances of the constitutional provision demonstrate that that
provision does not require a written waiver of jury trial if the defendant seeks to plead guilty.

        Ramirez v. State of Oregon, 212 Or App 446, 157 P3d 1290, on recon, 214 Or App 400, 164
P3d 1221, rev den, 343 Or 554 (2007). In light of Gonzalez v. State of Oregon, petitioner was
adequately advised by his trial counsel, and by his plea petition, that he ―may be deported‖ as a result of
the conviction. Given petitioner‘s express acknowledgement in his petition, ORS 135.385(2)(d) did not
require the trial court to address petitioner specifically concerning that term before accepting his guilty
plea.

HABEAS CORPUS PROCEEDINGS
     See also ―Inmates‖ and ―Parole and Release,‖ below.

        Habeas corpus: federal-court proceedings
        See also ―Death Penalty: federal cases,‖ above; ―Post-Conviction Proceedings,‖ below.

        Danforth v. Minnesota, __ US __, __ S Ct __, __ L Ed 2d __ (Feb 20, 2008). The state
supreme court erred when it held that it could not apply rule announced in Washington v. Crawford ,
541 US 36 (2004), retroactively in state-court proceeding because the Court had held in Whorton v.
Bockting that that rule does not apply retroactively under Teague v. Lane, 489 US 288 (1989). The
limitation on retroactive application prescribed by the Teague rule applies only in federal habeas corpus
proceedings; that limitation does not bind the states in their own state-court proceeding.
        Note: The Oregon Supreme Court previously had held in Miller v. Lampert, 340 Or 1 (2006),
46

that Teague rule applies in state post-conviction proceedings.

        Wright v. Van Patten, 552 US __, 128 S Ct __, 169 L Ed 2d 583 (2008) (per curiam).
Petitioner was not entitled to federal habeas corpus relief based on claim that he entered no-contest plea
during which his counsel participated through speakerphone; the Court rejected Seventh Circuit‘s
reasoning that circumstance constituted complete deprivation of counsel under United States v. Cronic.

         Panetti v. Quarterman, 551 US __, 127 S Ct 2842, 168 L Ed 2d 662 (2007). Petitioner was
convicted of capital murder for murdering his in-laws, and he was sentenced to death. Although he
suffers from various mental disorders, he was found competent to stand trial and represent himself. The
state courts affirmed the judgment, and his petition for habeas corpus relief (which did not include a
Ford v. Wainwright claim) was denied. When the state set an execution date, petitioner a motion in
state court claiming he is exempt from execution because he is mentally incompetent under the Ford
standard. The state court denied his claim, and he filed a successive petition for habeas corpus in
federal court. The district court denied his petition. Held: Reversed and remanded. [1] Petitioner‘s
Ford-based petition is not a successive petition subject to 28 USC § 2244(b)(2), because that claim was
not ripe when he filed his original petition. [2] Deference under AEDPA is not warranted because the
state court failed to provide the minimum procedures required by Ford when determining his
competence. [3] The test applied by the court of appeals was ―too restrictive to afford [petitioner] the
protections granted by the Eighth Amendment.‖ Although petitioner knew that he had been sentenced
to death for murdering his in-laws, his mental disorders allegedly caused him to believe he was being
executed to stop him from preaching. Ford requires that the inmate must ―comprehend‖ or be aware of,
at least, the reasons for his execution. The Court remanded for reconsideration.

         Bowles v. Russell, 551 US __, 127 S Ct 2360, 168 L Ed 2d 96 (2007). Petitioner was convicted
of murder, and the state courts affirmed the judgment. The district court denied his petition for habeas
corpus relief and entered a final judgment on September 9, 2003. Petitioner failed to file his notice of
appeal within the prescribed 30-day period. On December 12, petitioner moved under FRAP 4(a)(6) to
reopen the appeal period for 14 days to allow him to file an untimely notice of appeal. On February 10,
2004, the district court granted that request, but the order inexplicably gave him 17 days, until February
27, to file his notice appeal. Petitioner filed his notice on February 27. The Sixth Circuit dismissed his
appeal. Held: Affirmed. [1] Filing a notice of appeal within the prescribed period is mandatory and
jurisdictional. Petitioner failed to file his notice within the 14-day period allowed by the rule, and it is
immaterial that the order inadvertently purported to grant him 17 days. Consequently, his appeal must
be dismissed. [2] ―Because this Court has no authority to create equitable exceptions to jurisdictional
requirements, use of the ‗unique circumstances‘ doctrine is illegitimate [overruling those cases].‖

         Fry v. Plilar, 551 US __, 127 S Ct 2321, 168 L Ed 2d 15 (2007). In petitioner‘s trial for murder,
the trial court excluded evidence he had proffered that linked someone else to the murder. Petitioner
appealed contending that the ruling violated Chambers v. Mississippi. Without addressing the merits,
the California Court of Appeal affirmed by noting only that petitioner had suffered ―no possible
prejudice‖; the court did not state expressly what harmless-error standard it applied. Petitioner asserted
that same claim in his habeas corpus petition and contended that the state court erred in failing to apply
the harmless-error standard in Chapman v. California, 386 US 18 (1967). The district court denied the
petition, concluding that petitioner failed establish prejudice under the standard in Brecht v.
Abrahamson, 507 US 619 (1993). Held: Affirmed. [1] ―In § 2254 proceedings a court must assess the
prejudicial impact of constitutional error in a state-court criminal trial under the ‗substantial and
injurious effect‘ standard set forth in Brecht, whether or not the state appellate court recognized the error
and reviewed it for harmlessness under the ‗harmless beyond a reasonable doubt‘ standard set forth in
Chapman.‖ [2] The Court declined to review petitioner‘s claim that he was entitled to relief under the
                                                                                                      47

Brecht standard: ―Since the Ninth Circuit correctly applied the Brecht standard rather than the Chapman
standard, we affirm the judgment below.‖

         Uttecht v. Brown, 551 US __, 127 S Ct 2218, 167 L Ed 2d 1014 (2007). Petitioner was
convicted of capital murder and sentenced to death. The state courts affirmed the judgment. In his
habeas corpus petition, petitioner alleged that the trial court improperly excluded for cause several
prospective jurors for expressing opposition to the death penalty. The district court denied the petition,
but Ninth Circuit reversed, agreeing with respect to one juror, even though defense counsel had not
objected to the prosecutor‘s challenge to that juror. Held: Reversed, reinstating district court‘s
judgment. [1] Under the Witherspoon-Witt standard, ―a juror who is substantially impaired in his or her
ability to impose the death penalty under the state-law framework can be excused for cause; but if the
juror is not substantially impaired, removal for cause is impermissible.‖ Also, ―in determining whether
the removal of a potential juror would vindicate the State‘s interest without violating the defendant‘s
right, the trial court makes a judgment based in part on the demeanor of the juror, a judgment owed
deference by the reviewing courts.‖ [2] The Washington Supreme Court‘s opinion discloses that it
correctly identified the applicable rule and applied an abuse-of-discretion standard—―there is no
requirement … that a state appellate court make particular reference to the excusal of each juror.‖ [3]
―From our own review of the state trial court‘s ruling, we conclude that the trial court acted well within
its discretion in granting the State‘s motion to excuse Juror Z.‖ Even though ―there is no independent
federal requirement that a defendant in state court object to the prosecution‘s challenge,‖ and
Washington law did not require a specific objection, the federal court may ―take into account voluntary
acquiescence to, or confirmation of, a juror‘s removal.‖ A failure to object deprives the trial court of an
opportunity to avoid the error or explain its ruling and deprives a reviewing court of an adequate record.
Moreover, it could have been a tactical decision.

         Roper v. Weaver, 550 US __, 127 S Ct 2022, 167 L Ed 2d 836 (2007) (per curiam). Petitioner
was convicted of capital murder and sentenced to death. After the state post-conviction court denied his
petition and the Missouri Supreme Court denied review, he filed a habeas corpus petition complaining
of an improper closing argument by the prosecutor, an argument that was similar to one that resulted in
habeas corpus relief in two other cases. When petitioner advised that he wanted to petition for certiorari
from the state supreme court‘s ruling, the district court required him to dismiss his habeas corpus
petition if he chose to do that. He elected to dismiss. After the Supreme Court denied his cert petition,
he refiled his habeas corpus petition, which occurred after AEDPA‘s effective date. The Eighth Circuit
eventually granted relief consistent with previous two cases. The Supreme Court granted review to
consider whether that relief was proper under AEDPA. Held: Petition for cert dismissed as
improvidently granted. The district court erred when it forced petitioner to choose between pursuing his
original petition and petitioning for cert from the state supreme court‘s decision. See Lawrence v.
Florida, post. Because it was not clear, as a result, whether the AEDPA issue was presented, and
because two similarly situated petitioners already had obtained relief on the same claim, the Court
exercised its discretion to dismiss the petition.

         Schriro v. Landrigan, 550 US __, 127 S Ct 1933, 167 L Ed 2d 836 (2007). After a long history
of violent crime, including a previous murder, petitioner escaped from prison and murdered a man
during a burglary. He was found guilty of capital murder by a jury. At sentencing (before the court),
petitioner‘s counsel attempted to present mitigating evidence through petitioner‘s ex-wife and birth
mother but petitioner refused to allow them to testify. In a direct colloquy, petitioner insisted that he did
not want any mitigating evidence to be presented and taunted the court to impose a death sentence: ―just
bring it on.‖ The court did. In his state post-conviction proceeding, petitioner alleged that his counsel
should have investigated and presented mitigating evidence despite his refusal to cooperate. The court
rejected that claim, and the judgment was affirmed on appeal. Petitioner repeated that claim in his
48

habeas corpus petition. The district court refused to grant an evidentiary hearing and dismissed his
petition. The Ninth Circuit reversed. Held: Reversed, affirming district court. [1] AEDPA continues
the rule that the decision to grant an evidentiary hearing in a habeas corpus proceeding is left to the
discretion of the district court. Under AEDPA, the state court‘s factual findings are presumed correct
unless the petitioner rebuts that by ―clear and convincing evidence,‖ 28 USC § 2254(e)(1), and the
district court may not reverse the state-court judgment unless it ―was based on an unreasonable
determination of the facts,‖ § 2254(d)(2). A district court ―must take into account those standards in
deciding whether an evidentiary hearing is appropriate,‖ and ―if the record refused the petitioner‘s
factual allegations or otherwise precludes habeas corpus relief, a district court is not required to hold an
evidentiary hearing.‖ [2] The state court finding that petitioner refused to allow his counsel to present
mitigating evidence was a reasonable determination of the facts. Moreover, the court was entitled to
conclude that petitioner would have prevented his counsel from presenting whatever mitigating evidence
he might have uncovered, and hence that petitioner suffered no prejudice. Thus, the court did not abuse
its discretion in refusing to grant an evidentiary hearing.

         Abdul-Kabir v. Quarterman, 550 US __, 127 S Ct 1654, 167 L Ed 2d 585 (2007). Petitioner
was tried and sentenced to death before Penry I, and the state courts affirmed the judgment despite his
claim that the penalty-phase questions did not all for adequate consideration of the his mitigating
evidence (unhappy childhood and impulse-control disorder). The Fifth Circuit rejected his petition for
habeas corpus, and the Supreme Court remanded for reconsideration in light of Tennard v. Dretke, 542
US 274 (2004). On remand, the Fifth Circuit, applying AEDPA, again denied his petition, concluding
that when the Texas courts affirmed his sentence in 1999 the law was unsettled whether the defendant
must establish a nexus between his mitigating evidence and his criminal conduct, which petitioner had
failed to show. Held: Reversed. Under AEDPA, the essential question is whether the rule announced
in that case was ―clearly established Federal law‖ insofar as its application to petitioner‘s mitigating
evidence at the time the state courts finally affirmed the judgment in 1999. Piecing together the Court‘s
seemingly conflicting jurisprudence at that time, the majority concluded that given the nature of
petitioner‘s mitigating evidence and the instructions given in the penalty phase, it was clearly
established in 1999 that the death sentence violates the rule in Penry I.
         Note: In an entertaining dissent, Chief Justice Roberts commented: ―We give ourselves far too
much credit in claiming that our sharply divided, ebbing and flowing decisions in this area gave rise to
‗clearly established‘ federal law. … When the state courts considered these cases, our precedents did not
provide them with ‗clearly established‘ law, but instead a dog‘s breakfast of divided, conflicting, and
ever-changing analyses.‖
         See also Brewer v. Quarterman, 550 US __, 127 S Ct 1706, 167 L Ed 2d 622 (2007) (similar;
mitigating evidence: depression, abusive father, substance abuse).

        Habeas corpus: state-court proceedings

        Mecham v. Hill, 217 Or App 144, 174 P3d 1051 (2007). [1] Plaintiff‘s release from prison did
not moot his habeas corpus claim. Under Baty v. Slater, 161 Or App 653 (1999), a writ of habeas
corpus is not rendered moot by a plaintiff‘s release from imprisonment because, if he is entitled to relief
from his prison sentence, resolution would affect the length of his post-prison supervision term.
[2] Plaintiff was not entitled to habeas corpus relief on his claim, based on statements made by the
sentencing judge after revoking his probation, that he was entitled to credit for time served on probation
violations in other cases. The sentencing court has no authority to calculate the amount of credit for
time served. Nissel v. Pearce, 307 Or 102, 105 (1988). Rather, under ORS 137.320, it is the
responsibility of the DOC to calculate the amount of credit to which the prisoner is entitled.

        Dunn v. Hill, 211 Or App 590, 156 P3d 72 (2007). The trial court dismissed inmate-plaintiff‘s
                                                                                                     49

―access to courts‖ claim for habeas corpus relief for failure to state a claim, and it ordered him to pay
$33 in fees. Held: Reversed in part and remanded. [1] Defendant‘s motion to dismiss the writ under
ORS 34.680(1) on the ground that plaintiff‘s replication failed to state a claim ―should be treated as
comparable to an ORCP 21 A(8) motion, rather than as the equivalent of a motion for summary
judgment,‖ because the motion was not supported by evidentiary materials. In considering such a
motion, the court may consider the petition as well as the replication. [2] Plaintiff‘s claim that the
prison library is inadequate to permit him to respond to cases cited by the defendant in his pending post-
conviction proceeding sufficiently states an ―access to courts‖ claim under Lewis v. Casey, 518 US 343
(1996). That right extends to prosecuting a pending case, as well as to filing a case. [3] Plaintiff‘s claim
is not deficient because he did not allege that he has requested but was denied court-appointed counsel:
―if there are adequate alternative methods by which plaintiff‘s right to access is satisfied, that is up to
the state to demonstrate.‖ [4] Plaintiff ―has adequately alleged facts demonstrating that habeas corpus
relief is the only adequate remedy practically available.‖ [5] On the date plaintiff filed his petition,
ORS 34.340 required a filing fee of $25 and an $8 surcharge.

HARASSMENT

        State v. Johnson, 213 Or App 83, 159 P3d 1213, rev allowed, 343 Or 363 (2007). Defendant
lawfully was convicted of harassment for using an amplified public-address system to shout racist,
obscene, and homophobic insults at the occupants of another car for more than five minutes.
ORS 166.065(1)(a)(B), which criminalizes ―publicly insulting another person by abusive words or
gestures in a manner intended and likely to provoke a violent response,‖ is not constitutionally vague or
overbroad. The subsection is not directed at expression but rather at the harm that results (i.e., the
intended harassment and annoyance, and the likelihood of provoking a violent response) from the
expression.

HINDERING PROSECUTION
     See also ―Interfering With a Police Officer,‖ below.

        State v. Harding, 213 Or App 536, 162 P3d 305, rev den, 343 Or 233 (2007). Defendant was
charged with hindering prosecution, ORS 162.325, for hiding of a shotgun used by a friend in a
shooting. Defendant moved for judgment of acquittal, arguing that the investigating officers already
may have known the identity of the shooter, and that, for that reason, the state did not prove that he
suppressed ―physical evidence which might aid in the discovery or apprehension of‖ a person who
committed a felony. Held: Affirmed. A rational juror could find that defendant hid the gun before the
shooter was identified. Additionally, a person commits hindering by hiding evidence that only might aid
in finding the felon, not evidence that will aid in finding the felon. The gun could have held the
shooter‘s fingerprints or other evidence that could have aided in the discovery of the person who
committed the felony.

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

       Gonzales v. Carhart, 549 US __, 127 S Ct 1610, 167 L Ed 2d 480 (2007). Abortion doctors
challenged the facial constitutionality of Partial-Birth Abortion Ban Act of 2003, 18 USC § 1531, which
makes it a felony offense to intentionally perform an ―intact D&E‖ procedure involving a live fetus.
Held: Challenge rejected. [1] Plaintiffs have not demonstrated that the Act is facially void for
vagueness or that it imposes an undue burden on woman‘s right to abortion. Plaintiffs‘ arbitrary-
enforcement claim is speculative. [2] The Act is not facially invalid for not containing an express
exception for allowance of the procedure if that is necessary for preservation of the mother‘s health.
50

Medical uncertainty whether such a procedure ever is necessary does not foreclose the exercise of
legislative authority in this context. In any event, the proper means to consider such an exception is by
an as-applied challenge.

       State v. Myers, __ Or App __, __ P3d __ (March 19, 2008). The ―true life‖ option for
aggravated murder under ORS 163.105 does not violate Art I, § 40, which provides that the sentence for
aggravated murder shall be death or ―life imprisonment with minimum sentence as provided by law.‖

          State v. Wilson, 216 Or App 226, 173 P3d 150 (2007), rev den, 344 Or __ (2008). This case
arose from defendant‘s retrial on eight counts of aggravated murder and one count of murder after the
Oregon Supreme Court reversed those convictions for evidentiary error. On retrial, the jurors found
defendant guilty of attempted aggravated murder as lesser-included offenses of five of the aggravated-
murder charges and were unable to reach a verdict on the other aggravated-murder charges. The court
merged all five convictions for attempted aggravated murder, and the court ordered the sentence on that
conviction to be served consecutively to the previously imposed sentence on the underlying kidnapping.
Held: Convictions affirmed; sentences reversed based on State v. Ice. [1] The acquittal-first instruction,
even if erroneous, cannot have prejudiced defendant because the jurors did acquit him on the
aggravated-murder charges and convicted him only on lesser-included offenses. [2] The trial court
properly instructed the jurors to treat the underlying felonies as proven for purposes of certain elements
of aggravated felony murder. Defendant objected to the trial court‘s decision—based on the Oregon
Supreme Court‘s prior affirmance of the felonies underlying certain aggravated-murder convictions—to
instruct the jury to give effect to the prior jury‘s verdicts on those underlying felonies in rendering their
verdicts on the charges before them. The Court of Appeals declined to consider defendant‘s challenge
to the validity of the decision of the Oregon Supreme Court in State v. Boots, 315 Or 572 (1993), in
which it held that such a practice—limiting a jury‘s consideration in an aggravated-murder retrial to
issues not already conclusively determined in the original trial—was permissible. [3] The trial court was
not required to ―re-merge‖ the previously-entered predicate felonies into the new convictions for
attempted aggravated murder. Defendant asserted that, because his convictions for the predicate
felonies in the first trial were originally merged into his convictions for aggravated murder, he was
entitled to ―re-merger‖ of those convictions after he was convicted on retrial after reversal of the original
convictions. The Court of Appeals did not decide whether a procedural mechanism exists to ―merge‖
convictions entered in separate proceedings because it held that merger was not required in any event.
First, it held that each crime has an element that the other does not. Second, it held that, under Barrett,
offenses that constitute aggravating circumstances for purposes of proving various theories of
aggravated murder do not merge into the convictions for aggravated murder. [4] State v. Ice requires
remand for resentencing. The court ordered the attempted-aggravated-murder sentences to be served
consecutively to the sentence on the first-degree kidnapping based on its finding that it caused a ―greater
or qualitatively different injury‖ to the victim than that caused by the kidnapping. Under Ice, that
question was required to be determined by the jury, not by the court.

        State v. Gonzales-Gutierrez, 216 Or App 97, 171 P3d 384 (2007), rev den, 344 Or 194 (2008).
Defendant was convicted of several counts of attempt, conspiracy, and solicitation to commit aggravated
murder and simple murder of each of two victims, and the trial court entered separate convictions.
Defendant did not object, but argued on appeal that all of the convictions based on the offenses
involving each victim should have merged into a single conviction for each victim. Held: Reversed.
[1] Under ORS 161.067(1), each of the counts of attempted aggravated murder based on different
theories (murder for hire and murder of a witness) should have merged into a single conviction.
[2] Likewise, different theories of conspiracy to commit aggravated murder also should have merged.
[3] In addition, ORS 161.485(2) provides that a court may enter convictions for only one inchoate
offense based on the same conduct against the same victim. Therefore, all of defendant‘s convictions
                                                                                                    51

for attempt, solicitation, and conspiracy of the same offense against the same victim, merge into single
convictions of attempted murder and attempted aggravated murder. [4] Finally, the convictions for
attempted murder must merge into the convictions for attempted aggravated murder.

        State v. Ramsey, 215 Or App 434, 173 P3d 142 (2007), rev den, 344 Or 194 (2008).
[1] Evidence of future dangerousness is relevant in a non-capital penalty-phase proceeding to whether
―sufficient mitigating circumstances‖ warrant life with the possibility of parole. ―Indeed, a defendant‘s
dangerousness is perhaps one of the most cogent factors that one would expect a jury to consider in
making such a difficult decision.‖ [2] Victim-impact evidence is admissible in a non-capital penalty-
phase proceeding under ORS 163.150(3)(b) (2003). Under State v. George, 183 Or App 583, 592-93
(2002), rev’d on other grounds, 337 Or 329 (2004), victim-impact evidence is admissible in a non-
capital penalty-phase proceeding even though the previous version of ORS 163.150(3)(b) did not
expressly authorize it. [3] The prosecution may make a rebuttal argument even without a burden of
proof.
        Note: ORS 163.150(3)(b) was amended in 2005 to expressly permit the admission of victim-
impact evidence in a non-capital sentencing proceeding.

        State v. Walraven, 214 Or App 645, 167 P3d 1003 (2007), rev den, 344 Or 280 (2008). The
sentencing court erroneously failed to merge defendant‘s conviction for felony murder under
ORS 163.115(1)(b) into his single merged conviction for aggravated murder. Under ORS 161.067(1),
the provisions do not each ―require[] proof of an element that the others do not.‖ Because the
aggravated-murder statute defines aggravated murder as ―murder as defined in ORS 163.115 [and an
aggravating circumstance],‖ then any conviction for murder is subsumed in any conviction for
aggravated murder. Thus, a felony-murder conviction merges into a conviction for intentional
aggravated murder.

INDIAN LAW

         State v. Watters, 211 Or App 628, 156 P3d 145, rev den, 343 Or 186 (2007). Defendants, who
are members of the Nez Perce Tribe, were arrested for killing two elk out of season on private property.
Relying on an 1855 treaty between the Nez Perce and the United States stating that the members of the
tribe may continue to hunt on any ―open and unclaimed land‖ that was part of their original hunting
grounds, they filed both a demurrer and a motion to dismiss on that ground, and on the grounds that the
federal courts and tribal courts had exclusive jurisdiction to interpret treaties and that the accusatory
instruments did not allege that the defendants were Nez Perce members and that the treaty was not
applicable. Held: Affirmed. [1] The state court has authority to prosecute crimes committed by Native
Americans off of the reservation; moreover, the state courts have authority to determine whether treaty
rights are applicable and whether they preclude state prosecution. [2] The state is not required to negate
defenses in an accusatory instrument, and thus was not required to allege defendants‘ status as tribal
members. [3] Even if the private property can be ―open and unclaimed,‖ the parties to the 1855 treaty
would not have considered the land at issue—which had signs of habitation, such as cabins, gates, roads,
drift fences, and signs at major points of entry—to be ―open and unclaimed.‖

INITIATING A FALSE REPORT

         State v. McCrorey, 216 Or App 301, 172 P3d 271 (2007). Defendant was charged with
initiating a false report in violation of ORS 162.375, based on her acts of ―covering‖ for her daughter
after her daughter, an unlicensed driver, was the victim of a hit-and-run crash. Before calling the police,
defendant suggested to her daughter that they report that defendant had been driving the car at the time
of the collision. The evidence showed that either defendant or the daughter called the police and
52

truthfully reported that there had been a hit-and-run collision, and that, when the officer arrived to
investigate the crime, defendant untruthfully told the officer that she had been the driver at the time of
the crash. Later, after being confronted with statements of witnesses to the crash, both defendant and
her daughter admitted that the daughter had been the driver. At trial, defendant argued that there was
insufficient evidence that the only report that she initiated was the initial phone call. Because that
report—that there had been a hit-and-run crash—was truthful, she asserted that she did not initiate a
false report. She claimed that her lie to the officer when he arrived at the house to investigate was not a
report ―initiated‖ by her. The trial court rejected her argument, but the Court of Appeals later agreed
with it. Held: Reversed. Defendant ―initiated‖ only the initial truthful report about the crash; her report
to the officer who responded to the call was not ―initiated‖ by defendant.

INMATES
     See also ―Habeas Corpus,‖ above; ―Parole and Release,‖ below.

         Erickson v. Pardus, 551 US __, 127 S Ct 2197, 167 L Ed 2d 1081 (2007) (per curiam). Inmate
plaintiff filed a pro se complaint under 42 USC § 1983 contending that defendant prison doctor had
violated his Eighth Amendment rights by terminating his treatment for hepatitis C based on a finding
that he had taken a syringe to inject illegal drugs. The district court dismissed the complaint on the
ground that it failed to allege specifically that the doctor‘s action had caused him ―substantial harm.‖
The Tenth Circuit affirmed. Held: Given that a pro se complaint is to be liberally construed and that
FRCP 8(a)(2) requires only notice pleading, plaintiff‘s complaint was sufficient.

         State v. Hutchins, 214 Or App 260, 164 P3d 318 (2007), rev allowed, 344 Or 280 (2008). The
trial court erred by denying defendant‘s motion to suppress statements that he, an inmate, made during a
prison disciplinary hearing without advice of his Miranda rights. Although the fact that a person is
incarcerated does not per se create compelling circumstances, the circumstances in this case were
compelling because defendant was brought to the hearing in handcuffs, he was ―not told that his plea
and his statements could be used in a subsequent criminal trial,‖ and ―was confronted with evidence
against him.‖

         Dunn v. Hill, 211 Or App 590, 156 P3d 72 (2007). The trial court dismissed inmate-plaintiff‘s
―access to courts‖ claim for habeas corpus relief for failure to state a claim. Held: Reversed in part and
remanded. [1] Plaintiff‘s claim that the prison library is inadequate to permit him to respond to cases
cited by the defendant in his pending post-conviction proceeding sufficiently states an ―access to courts‖
claim under Lewis v. Casey, 518 US 343 (1996). That right extends to prosecuting a pending case, as
well as to filing a case. [2] Plaintiff‘s claim is not deficient because he did not allege that he has
requested but was denied court-appointed counsel: ―if there are adequate alternative methods by which
plaintiff‘s right to access is satisfied, that is up to the state to demonstrate.‖ Plaintiff ―has adequately
alleged facts demonstrating that habeas corpus relief is the only adequate remedy practically available.‖

INSANITY

        Panetti v. Quarterman, 551 US __, 127 S Ct 2842, 168 L Ed 2d 662 (2007). Petitioner was
convicted of capital murder for murdering his in-laws, and he was sentenced to death. Although he
suffers from various mental disorders, he was found competent to stand trial and represent himself. The
state courts affirmed the judgment, and his petition for habeas corpus relief (which did not include a
Ford v. Wainwright claim) was denied. When the state set an execution date, petitioner a motion in
state court claiming he is exempt from execution because he is mentally incompetent under the Ford
standard. The state court denied his claim, and he filed a successive petition for habeas corpus in
federal court. The district court denied his petition. Held: Reversed and remanded. The test applied by
                                                                                                    53

the court of appeals was ―too restrictive to afford [petitioner] the protections granted by the Eighth
Amendment.‖ Although petitioner knew that he had been sentenced to death for murdering his in-laws,
his mental disorders allegedly caused him to believe he was being executed to stop him from preaching.
Ford requires that the inmate must ―comprehend‖ or be aware of, at least, the reasons for his execution.
The Court remanded for reconsideration.

INSTRUCTIONS
       See also ―Accomplices,‖ ―Death Penalty: federal cases,‖ and ―Defenses,‖ above; ―Lesser-
Included Offenses,‖ below.

         State v. Sandoval, 342 Or 506, 156 P3d 60 (2007). Defendant, charged with murder, 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 based on language in
State v. Charles, 293 Or 273 (1982), 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.‖ The instruction 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 trial court gave the instruction over defendant‘s objection. Held: Reversed.
[1] Although the state‘s reliance on Charles was ―understandable,‖ the Charles decision was not based
on the self-defense statutes, but instead was decided on pre-1971 case law. 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 the statutes
only require that the person using deadly force must reasonably believe that the degree of force is
necessary. The statutes do not impose an additional requirement that the person must retreat before
using deadly force in self-defense.
         See also State v. Lang, 215 Or App 15, 168 P3d 310 (2007) (under Sandoval, the trial court
erroneously gave a ―duty to retreat‖ instruction in conjunction with defendant‘s self-defense claim).

         State v. Norman, 216 Or App 475, 174 P3d 598 (2007). The trial court correctly instructed the
jurors that a 10-2 verdict was sufficient. The Court of Appeals refused to consider defendant‘s
unpreserved argument that the ―jury unanimity‖ language in Art. I, § 11, violated the ―separate vote‖
provision of Art. XVII, § 1, because the issue is not beyond dispute and thus is not a claim of plain
error. Moreover, defendant‘s argument based on the Sixth Amendment, as interpreted in Blakely fails
under State v. Bowen, 215 Or App 199 (2007).

         State v. Wilson, 216 Or App 226, 173 P3d 150 (2007), rev den, 344 Or __ (2008). [1] Acquittal-
first instruction, even if erroneous, cannot have prejudiced defendant, because the jurors found
defendant guilty only on several lesser-included offenses and failed to reach a verdict on the remaining
charges. [2] In this retrial for aggravated felony murder and other charges, the trial court properly
instructed the jurors to treat the underlying felonies as proven for purposes of certain elements of
aggravated felony murder, as permitted under State v. Boots, 315 Or 572 (1993).

         State v. Guerrero, 216 Or App 173, 171 P3d 392 (2007). Defendant was convicted of
misdemeanor DWS, under ORS 811.182(4). Under ORS 811.175 and 811.182, DWS is a violation
unless the suspension or revocation was for one of the specific bases listed in that provision. At trial,
the state offered a suspension packet that demonstrated—with its usual abbreviations ―SUSP 4/26/05
7/25/05 C/O RECK DR‖—that defendant‘s license was suspended as a result of a reckless-driving
conviction. Defendant argued that UCrJI No. 2712, which requires the jurors to find that the defendant
54

operated a motor vehicle while his or her ―driving privileges had been [suspended/revoked] by the Dept.
of Transportation or by a court‖ but does not require a finding that the basis for the suspension or
revocation was of a type that authorized a conviction for the misdemeanor offense, was insufficient.
The trial court rejected his argument, and defendant was convicted at trial. Held: Reversed. The
instruction failed to require the jury to find that the suspension was for a basis that would elevate a DWS
violation offense to a misdemeanor offense.

        State v. Duffy, 216 Or App 47, 171 P3d 988 (2007). Defendant was charged with engaging in
unlawful prostitution procurement activities, in violation of Portland City Code § 14A.40.050.
Defendant argued that she was entitled to a jury instruction informing jurors that, to render a guilty
verdict, they must agree on any and all particular activities in which the state alleged that she engaged;
she relied on the fact that PCC § 14A.40.050 defines unlawful prostitution procurement activity as ―any
conduct … that constitutes a substantial step in furtherance of an act of prostitution,‖ and then provides
that such activity ―includes, but is not limited to, lingering in or near any street or public place,
repeatedly circling an area in a motor vehicle, or repeatedly beckoning to, contacting, or attempting to
stop pedestrians or motor vehicle operators.‖ Defendant argued that the activities listed in the ordinance
constituted separate crimes. Held: Affirmed. The ordinance does not create separate theories of the
crime that require juror agreement. Each activity under the ordinance involves a separate set of
circumstances under which the single offense of unlawful prostitution procurement activities may be
committed. The state‘s factual theories were alternative means of committing a single offense, not
separate elements that required juror agreement.

         State v. Rambert, 216 Or App 39, 171 P3d 398 (2007). Defendant was convicted on two counts
of second-degree assault with a firearm based on his shooting of the victim in a Burger King parking lot.
Defendant‘s girlfriend, who had handed defendant the gun and, after the shooting, drove defendant from
the scene, testified on defendant‘s behalf at trial. Her version of the events was that the defendant was
being attacked by a group of men when the victim approached him and appeared to be reaching for a
weapon. At trial, the state requested the statutory accomplice-witness jury instruction in ORS 10.095,
which states that, if the jurors determined that the girlfriend was an accomplice—i.e., that she could be
charged with the crime—they should view her testimony ―with distrust.‖ Defendant did not dispute that
there was evidence from which the jury could find that the girlfriend was an accomplice. Rather, he
asserted that the accomplice-witness instruction is proper only when the accomplice is attempting to
shift blame to the defendant. The trial court overruled his objection and gave the instruction. Held:
Reversed. Accomplice-witness instructions are proper only when the witness implicates the defendant
in criminal conduct, not when the witness exculpates the defendant. Under State v. Simson, 308 Or 102
(1989), and State v. Oatney, 335 Or 276 (2003), the accomplice-witness instructions are intended to
guard against accomplices who may falsely accuse others to minimize their own culpability. Those
concerns do not exist where the witness‘s testimony is primarily exculpatory in nature.

         State v. Basargin, 213 Or App 515, 162 P3d 325 (2007). Defendant was charged with three
counts of felony assault in the fourth degree; the last count alleged that defendant committed an assault
―in the immediate presence and witnessed by the victim‘s minor child.‖ Evidence at trial established
that two of the victim‘s children were present during the assault. On appeal, defendant contended that
the trial court erred in failing sua sponte to instruct the jury that at least 10 had to agree which child had
been present during the assault. Held: Because the evidence showed both children were present during
the assault, it was not plain error that defendant was entitled to a Boots jury instruction.

        State v. Miller, 213 Or App 237, 159 P3d 1293 (2007) (per curiam). Defendant was convicted
for two generic counts of assault where the victim testified to up to three possible assaults: defendant
poked her eye with his finger, dragged her by her wrists, and ―bear hugged‖ her, causing her neck to
                                                                                                     55

crack. On appeal, defendant claimed the trial court committed plain error when it failed to instruct the
jury that at least ten of them needed to agree on the factual basis of each count, State v. Boots, 308 Or
371 (1989). Held: Affirmed. Because the counts involve the same defendant and the same victim, the
jury need not agree on how the defendant assaulted the victim as each set of underlying facts could
constitute an assault.

        State v. Pauley, 211 Or App 674, 156 P3d 128 (2007). Defendant was charged with one count
of attempted first-degree sexual abuse based on the allegation that he ―attempt[ed] to touch [the
victim‘s] vagina.‖ The court did not give a copy of the indictment to the jury or otherwise explain that
the jurors were required to concur on the factual theory underlying the charge, and the court instructed
the jury only on the statutory elements of the crime: The jurors had to find that defendant attempted to
subject the victim to ―sexual contact,‖ but the court did not give a description of the factual theory
alleged in the indictment (that defendant attempted to touch the victim‘s vagina). Defendant did not
object to the instructions, and the jury convicted him of attempted first-degree sexual abuse. On appeal,
defendant argued that the instructions failed to ensure that the jurors agreed on the essential facts that
constitute the elements of the crime, as required by State v. Boots, 308 Or 371 (1989). Held: Affirmed.
The trial court did not commit plain error by failing to give a Boots instruction: (a) because there was
only one count of attempted sexual abuse and the state relied on only one factual theory, the necessity of
a Boots instruction was not obvious—there was little risk that the jurors could disagree on the essential
facts that constitute material elements of the crime charged; and (b) because defendant was charged with
only one count of attempted sexual abuse, the court instructed the jurors that at least 10 must agree on
the verdict, and the prosecutor specifically argued that he was relying on the theory that the defendant
had committed the crime by attempting to touch the victim‘s vagina, the record shows that the jury
actually did concur on the facts supporting its verdict. Thus, the lack of an instruction in this case was
harmless.
        Note: The court noted that although a prosecutor‘s argument cannot be a substitute for a
necessary instruction on the legal elements of the crime, the jurors were correctly instructed on the law
and the only question was whether they agreed on the facts to which it applied, and the prosecutor‘s
argument was relevant to that determination.

INTERCEPTION OF COMMUNICATIONS
     See also ―Search and Seizure: privacy interests,‖ below.

        State v. Kayfes, 213 Or App 543, 162 P3d 308, rev den, 343 Or 390 (2007). Defendant, a
former middle-school teacher and coach, was charged with numerous sexual offenses involving a
student. At trial, the 16-year-old victim refused to testify, and the trial court admitted a series of tape-
recorded telephone conversations between the victim and defendant that the victim‘s parents
surreptitiously had recorded. Held: Affirmed. Although the victim‘s parents may have violated 18 USC
§ 2511 by making the recordings, the parents were not state actors and, as a result, 18 USC § 2515 did
not require suppression of the tapes.

         State v. Prew, 213 Or App 336, 161 P3d 323 (2007). An OSP trooper videotaped the traffic stop
of defendant, including defendant‘s performance of FSTs and his inculpatory statements about the level
of his intoxication. The trooper, however, failed to inform defendant that he was filming the encounter.
Defendant moved to suppress both the videotape of his traffic stop and the trooper‘s testimony, and the
trooper testified in the pretrial hearing that he had reviewed the videotape to help refresh his memory.
Held: [1] Because defendant had not been informed of the taping, ORS 165.540 required suppression of
the videotape. [2] But the officer‘s testimony of his recollections of the traffic stop was admissible
because defendant had failed to prove that the officer‘s testimony came exclusively from his review of
the illegal videotape.
56


INTERFERING WITH OFFICER / OBSTRUCTING GOVERMENTAL ADMINISTRATION
     See also ―Hindering Prosecution,‖ above.

         State v. Neill, 216 Or App 499, 173 P3d 1262 (2007). Defendant was convicted of interfering
with a peace officer in violation of ORS 162.247(1)(b), based on her conduct toward officers who had
responded to a 911 call by defendant‘s son, who responded that he had been assaulted by a guest of
defendant‘s. When the officers arrived, defendant tried to shut the door, and then refused various
officer-safety orders throughout their contact, including her repeated attempts to run toward a bedroom
despite the officers‘ attempts to restrain her. Defendant moved to suppress the evidence of her conduct,
arguing that the officers‘ entry into her house was unlawful; after the trial court denied that motion,
defendant moved for a judgment of acquittal during trial based on her argument that she did not disobey
a ―lawful‖ order, as required by statute, based on her claim that the officers‘ entry was unlawful. Held:
Affirmed. [1] The court correctly denied the motion to suppress. Regardless of the legality of the entry,
the exclusionary rule does not apply to crimes that threaten officers‘ safety in the course of the entry.
State v. Janicke, 103 Or App 227 (1990). Defendant‘s conduct led the officers to believe that she
herself posed a legitimate threat to their safety; moreover, her lack of cooperation in assisting the
officers‘ attempts to contact Hardy also placed the officers at risk. [2] The trial court correctly denied
defendant‘s motion for a judgment of acquittal. Under Janicke, even if the entry was unlawful, the
―orders‖ given by the officers once inside the home were ―lawful orders‖ under ORS 162.247(1)(b).

        State v. Weaver, 214 Or App 633, 168 P3d 273, rev den, 343 Or 691 (2007). By slamming the
door while an officer and DHS workers were attempting to enter to initiate a welfare check based on
reported abuse and neglect of defendant‘s children, defendant interfered with the officer‘s lawful duties.
Under the circumstances, the emergency-aid doctrine authorized an entry to protect the children and
others present.

INTERPRETERS

         State v. Gonzales-Gutierrez, 216 Or App 97, 171 P3d 384 (2007), rev den, 344 Or 194 (2008).
Defendant was convicted of crimes arising from a murder-for-hire plot that he initiated from a county
jail while awaiting trial on other charges. At trial, the state offered tape recordings of several telephone
calls (some in English and some in Spanish) in which defendant arranged the murders; the state also had
prepared unofficial transcripts to assist the jurors in understanding the tapes. Because defendant‘s
primary language is Spanish, the court appointed interpreters to interpret the court proceedings into
Spanish for defendant; however, because the interpreters were not certified to perform contemporaneous
interpretations of recorded conversations, the court allowed the prosecutor to play the tape of the
English calls, and allowed the interpreters to translate the unofficial transcripts into Spanish for
defendant. Regarding the Spanish-language recordings, the trial court allowed the prosecutor to offer
the testimony of a Spanish-speaking police officer regarding the contents of the conversations. The
prosecutor did not play the tapes themselves. On appeal, defendant argued that he was entitled to
contemporaneous interpretation of the English-speaking tapes. He also asserted that the trial court
erroneously admitted the Spanish-speaking officer‘s testimony regarding the contents of the Spanish-
language recordings without playing the recordings themselves. Held: Convictions affirmed.
[1] Neither the interpreter statute (ORS 45.275(1)(a)) nor the Due Process require contemporaneous
translation of the English-language calls. [2] Because defendant had the opportunity to challenge the
officer‘s rendition of the Spanish-language calls, the court did not err by admitting that testimony.
[3] To the extent that any statements on the tape by any nonparties were hearsay, they were insignificant
and any error in admitting them was harmless.
                                                                                                    57



JOINDER

        State v. Norkeveck, 214 Or App 553, 168 P3d 265 (2007). Defendant was indicted in two
separate cases, one alleging charges of sexual conduct with a child victim, and the other alleging charges
of second-degree encouraging child sexual abuse based on images found on his computer. The court
granted the state‘s motion to join the two indictments for trial, and later denied defendant‘s motion to
sever. Held: [1] Joinder was proper under ORS 132.560(1)(b) because the charges are ―of the same or
similar character,‖ and that are ―connected together or constitut[e] parts of a common scheme or plan.‖
[2] Defendant failed to show ―substantial prejudice‖ requiring severance. The evidence was sufficiently
simple and distinct ―that the trier of fact would have been able to separately consider the charges.‖ The
mere fact that defendant intended to testify in one case and could be impeached by a prior sexual-abuse
conviction did not create substantial prejudice; an instruction limiting the use of the impeaching
evidence sufficiently mitigate any prejudice.

        State v. Wittwer, 214 Or App 459, 166 P3d 564 (2007). Joinder of assault offenses was proper
because they were ―of the same or similar character‖ under ORS 132.560(1)(b)(A). A failure-to-appear
charge was properly joined with the two assaults because defendant‘s failure to appear at arraignment on
one of the assaults was ―logically related‖ to the first assault, and defendant‘s second assault on the
victim similarly was motivated by his desire to escape prosecution for the first assault; thus, all of the
charges were part of a ―common scheme or plan‖ under ORS 132.560(1)(b)(C).

        State v. Luers, 211 Or App 34, 153 P3d 688, aff’d on recon, 213 Or App 389, 160 P3d 1013
(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
        See also ―Death penalty: federal cases,‖ above.; ―Sentencing: constitutional issues—right to
jury,‖ below.

        Snyder v. Louisiana, __ US __, __ S Ct __, __ L Ed 2d __ (March 19, 2008). Prosecutors
violated Batson v. Kentucky in this capital case when they removed all five prospective jurors who were
black through peremptory challenges. The Court found that the prosecutors‘ striking of one black
prospective juror violated Batson because neither of the two proffered grounds was plausible or
supported by the record.

         State v. Norman, 216 Or App 475, 174 P3d 598 (2007). The trial court correctly instructed the
jurors that a 10-2 verdict was sufficient to convict. The Court of Appeals refused to consider
defendant‘s unpreserved argument that the ―jury unanimity‖ language in Art I, § 11, violated the
―separate vote‖ provision of Art. XVII, § 1, because the issue is not beyond dispute and thus is not a
claim of plain error. Moreover, defendant‘s argument based on the Sixth Amendment, as interpreted in
Blakely, fails under State v. Bowen, 215 Or App 199 (2007).
58


JUVENILES

        State ex rel. Juv. Dept. v. J. D., 214 Or App 251, 164 P3d 1182 (2007). The juvenile court
erred by denying youth‘s motion to suppress evidence seized after he was taken into custody for truancy
in violation of Portland City Code § 14A.80.020. Truancy alone does not authorize custody. The
ordinance permits the imposition of custody only upon the conditions that would authorize protective
custody under ORS 419B.150. No other source of authority justified taking youth into custody for a
truancy violation.

        State ex rel. Juv. Dept. v. K.M.-R., 213 Or App 275, 160 P3d 944 (2007). When a juvenile
court makes a delinquent youth a ward of the court for placement and services purposes per
ORS 419C.478(1), the court must make written findings why making the youth a ward of the court is in
the best interest of the youth.

       State ex rel. Juv Dept. v. L.N., 212 Or App 695, 159 P3d 333 (2007) (per curiam). Under
Ch. 419B, a juvenile court does not have the authority to assume jurisdiction of a child living in another
country. The trial court erred by making the child, a resident of Mexico, a ward of the court.

KIDNAPPING AND RELATED OFFENSES

        State v. Walch, 218 Or App 86, __ P3d __ (2008). Moving the victim a few feet from the
driveway to car trunk was movement to another ―place.‖ Under State v. Murray, 340 Or 599 (2006), the
―one place to another‖ element is ―situational and contextual.‖ In Murray, the court held that movement
of the victim from the driver‘s seat to the passenger seat of a vehicle was not movement to another
―place.‖ Here, however, moving a person from a driveway to the inside of a car trunk (for which the
court stated there is ―almost no innocent purpose‖) was movement to another ―place.‖

        State v. Reyes-Mauro, 217 Or App 315, 175 P3d 998 (2007). The movement of the victim to
the back of the store to facilitate the ongoing robbery was merely incidental to the robbery, and thus was
insufficient under State v. Wolleat, 338 Or 469 (2005), to support kidnapping conviction.

        State v. Claborn, 214 Or App 166, 162 P3d 374, rev den, 343 Or 555 (2007). Defendant was
convicted of second-degree kidnapping and other crimes when, during an altercation with the victim,
defendant grabbed her, moved her six or seven feet across the room, pinned her against a wall, grabbed
her breast, and threatened to kill her. Held: The trial court erred in denying defendant‘s motion for
judgment of acquittal on the kidnapping charge. Under State v. Wolleat, 338 Or 469 (2005), evidence
that defendant moved the victim a short distance in the course of committing other crimes is insufficient,
as a matter of law, to demonstrate the requisite intent to interfere with the victim‘s liberty.

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

         State v. Walch, 218 Or App 86, __ P3d __ (2008). Defendant was charged with first-degree
robbery under ORS 164.415(1)(c), based on his attempting to cause serious physical injury in the course
of the robbery, and he requested an instruction on second-degree robbery, which requires proof either
that the defendant ―[represented] by word or conduct that [he was] armed with‖ a dangerous or deadly
weapon or that he was ―aided by another person actually present.‖ Held: The trial court correctly
refused to give defendant‘s requested instruction, because the elements of second-degree robbery are not
subsumed in the charged offense.
                                                                                                     59


        Trotter v. Santos, 212 Or App 473, 157 P3d 1233, on recon, 214 Or App 696, 167 P3d 488
(2007). Petitioner was convicted of attempted murder as a result of a near-miss shooting incident. He
alleged in his petition for post-conviction relief that his trial counsel provided inadequate assistance by
not requesting instructions on the lesser-included offenses. Held: Relief granted. [1] Where, as here,
the count alleged that the defendant used a firearm in the crime, ―attempted murder with a firearm
includes both attempted first-degree assault with a firearm and menacing as lesser-included offenses.‖
―Accordingly, petitioner was entitled to have the jury instructed as to those lesser-included offenses.‖
[2] Although the jury was given an acquittal-first instruction, ORS 136.460(2), ―failure to give a lesser-
included jury instruction is not harmless if the instruction was warranted.‖

MANDAMUS

         State v. Burleson, 342 Or 697, 160 P3d 624 (2007). In a grand-jury investigation of an
anesthesiologist for sexually abusing anesthetized patients, a dentist who was served with a subpoena
duces tecum refused to provide unredacted medical records that would identify the victims. His refusal
was not based on a self-incrimination claim; rather, he was concerned that disclosure of the victims‘
identities would cause them to avoid further treatment. At the grand jury‘s request, the state moved to
hold the witness in remedial contempt and to compel production of the records. The trial court denied
the motion, concluding that although the evidence sought was relevant and not privileged, public-
interest considerations in ORS 136.617 supported nondisclosure. The state petitioned for a writ of
mandamus. Held: The trial court erroneously refused to compel the witness to comply with the
subpoena. [1] Mandamus was appropriate because the state had no ability to appeal the denial of either
the contempt motion or the motion to compel. The state faced irreparable injury because the
unavailability of the victims‘ names could undermine the effectiveness of the investigation and
prosecution. [2] The trial court correctly did not hold the witness in contempt based on his refusal to
comply with the grand jury‘s subpoena. Contempt is a refusal to comply with the order of a court.
ORS 33.015. Because the witness had not refused to comply with any court order requiring him to
testify over his objection, contempt was not yet appropriate. The court emphasized that, although the
prosecutor is authorized to obtain and produce evidence to present to the grand jury, it is ultimately the
grand jury‘s decision whether to press for the production of evidence after a witness has refused to
cooperate fully. If a witness refuses to provide information, the grand jury may decide that further
inquiry is not needed. But if the grand jury determines that the inquiry is necessary, it must seek a court
order requiring the witness to comply. Thus, a witness does not risk contempt merely by refusing a
request for evidence or testimony; rather, a witness may be held in contempt only when he refuses to
comply with an order of the court. [3] ORS 136.617 establishes a procedure by which a court may
compel the testimony of a grand-jury witness who has invoked the right against compelled self-
incrimination. That statute provides that the court ―shall‖ order production of evidence upon a finding
that no privilege protects the evidence sought, unless production would be clearly contrary to the public
interest.‖ That ―public interest‖ exception did not apply in this case, because there had been no
assertion by the witness of a privilege against compelled self-incrimination.

MENTAL STATES
    See also ―Insanity,‖ above.

        State v. Rutley, 343 Or 368, 171 P3d 361 (2007). [1] The statute that defines the crime of DCS
within 1,000 feet of a school is outside of the criminal code, and thus, under ORS 161.105(1)(b), does
not require a culpable mental state because it ―clearly indicates a legislative intent to dispense with any
culpable mental state requirement for the offense or for any material element thereof.‖ [2] The
allegation that defendant committed the crime ―knowingly‖ did not require the state to prove
60

defendant‘s knowledge with regard to distance. At best, that allegation was ambiguous as to whether
the culpable mental state was intended to apply only to the delivery or to every circumstance in the
charge. ―Our disposition of the issue should not be read as accepting the Court of Appeals‘ proposition
that the state may be bound by the words of an indictment to prove a particular mental state respecting
an offense, even if the legislature did not intend to require such proof.‖

          State v. Murray, 343 Or 48, 162 P3d 255 (2007). A defendant commits a reckless third-degree
assault if, in addition to participation in the reckless activity, the defendant‘s own recklessness causes—
i.e., brings about, makes, or effects by force—serious physical injury to another by means of a deadly or
dangerous weapon, regardless of the victim‘s willing participation in the reckless activity.

         State v. Smith, __ Or App __, __ P3d __ (March 19, 2008). Even without witnesses to her
driving, the evidence was sufficient to allow a rational trier of fact to conclude that defendant drove
recklessly—i.e., in a manner that endangered the safety of persons or property. Defendant, who was
later determined to have a .36 percent BAC, whom police contacted after she stopped her car in a
manner that impeded traffic on a highway onramp, nearly walked into traffic, was barely coherent, and
admitted that she should not have been driving.

         State v. Travalini, 215 Or App 226, 168 P3d 1159 (2007), rev den, 344 Or 110 (2008). The
state did not have to prove a mental state as to the offense-subcategory factor alleging that the arson
―represented a threat of serious physical injury.‖ An offense subcategory fact is not an ―element‖ of the
substantive offense. Thus, ORS 161.095(2) and 161.115(1), which provide that a crime requires a
culpable mental state with regard to any element ―that necessarily requires a culpable mental state,‖ do
not require proof of a culpable mental state as to offense subcategory facts.

        State v. Savage, 214 Or App 343, 164 P3d 1202 (2007). Defendant was entitled to judgments of
acquittal on charges of child neglect and recklessly endangering another person. The mere fact that a
four-year-old was seen riding a tricycle on a residential street on a summer morning was insufficient
evidence that defendant acted either recklessly (that she consciously disregarded the risk that the child
would be endangered) or with criminal negligence (that she failed to be aware of the risk that the child‘s
safety was likely to be endangered).

       State v. Burns, 213 Or App 38, 159 P3d 1208 (2007), rev allowed, 344 Or 280 (2008).
Defendant was convicted of felony hit and run and moved for an arrest of judgment contending that the
indictment to allege a culpable mental state with regard to physical injury resulting from the collision.
Held: Affirmed. Because the charge tracked the language of the statute, a person of common
understanding could reasonably be expected to know what is intended.

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

        State v. Wilson, 216 Or App 226, 173 P3d 150 (2007), rev den, 344 Or __ (2008). The trial
court properly denied defendant‘s motion for mistrial based on his claim that the prosecutor had spoken
with a witness who had been excluded from the courtroom about the substance of other witnesses‘
testimony.

NEW-TRIAL MOTIONS

        State v. Cadigan, 212 Or App 686, 159 P3d 348, rev den, 343 Or 223 (2007). The trial court
erred by granting defendant‘s motion for a new trial on the ground that defense counsel had discovered
                                                                                                     61

after trial that defendant had taken photographs that may be relevant. ORCP 64 B permits a new trial
based on ―newly discovered evidence‖ that the ―party‖ could not have reasonably produced at trial.
Because the defendant, a party to the case, was aware of the photographs prior to trial, the photos did not
constitute ―newly discovered‖ evidence.

PAROLE AND RELEASE

          Mastriano v. Board of Parole, 342 Or 684, 159 P3d 1151 (2007). In 1997, the board revoked
petitioner‘s parole on a 1985 burglary conviction, and in 1998 the board reset his parole-release date for
2010. Petitioner unsuccessfully sought judicial review. In 2003, petitioner asked the board to reopen
and reconsider its 1997 and 1998 orders, but the board denied that request. Petitioner appealed. Held:
Petition dismissed: ―a board order denying reopening and reconsideration of an earlier final order is not
itself a final order for purposes of judicial review pursuant to ORS 144.335(1).‖

        Corgain v. Board of Parole, 213 Or App 407, 162 P3d 990 (2007). In 1982, petitioner was
convicted of agravated murder in Klamath, and the court imposed a life sentence with a 20-year
minimum; he also was convicted of first-degree robbery in Lane, and the court imposed a consecutive
20-year sentence. In 1992, the board found per ORS 163.105 (1981) that he likely would be
rehabilitated within a reasonable period and set a ―projected release date‖ of July 2002 with a
consecutive 40-month term on the robbery. The board later deferred the projected release date to 2004
based on ORS 144.125 (1981). Petitioner contended that his consecutive term commenced when the
board made the finding that he ―likely would be rehabilitated.‖ Held: Affirmed. [1] Under Roy v.
Palmateer, 339 Or 533 (2005), the board‘s finding did not entitle petitioner to immediate parole on
murder sentence—it gives him only to the possibility of parole after he completes the 20-year minimum.
Consequently, his consecutive term on the robbery conviction does not commence until the board
determines to ―parole‖ him on the murder conviction. [2] The board correctly applied ORS 144.125
(1981) in making its determination whether petitioner should be released from his murder sentence to
begin serving the consecutive sentence. Thus, the two-year deferral was proper.

         Curtiss v. Dept. of Corrections, 212 Or App 42, 157 P3d 279 (2007). DOC rule that precludes
credit for time served during house arrest, OAR 291-100-0080(3)(g), is valid. The term ―confined‖ in
ORS 137.370(2)(a) ―equates with ‗imprisoned‘ and does not encompass a situation in which a person
voluntarily agrees to restrict his or her location.‖

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

        Kincek v. Hall, 217 Or App 227, 175 P3d 496 (2007). The post-conviction court granted relief
and reversed convictions for attempted murder, assault, and unlawful use of a weapon based on
petitioner‘s claim that his trial counsel provided inadequate assistance when he failed to call as a witness
a psychologist who would have testified about petitioner‘s mental state when he shot his wife. Held:
Affirmed. Although the post-conviction court made statements to the effect that it did not believe that
the deficiency would have affected the result, its implicit finding that petitioner was prejudiced is
supported by evidence in the record.

        Mota v. Hill, 215 Or App 623, 170 P3d 1092 (2007). Petitioner filed a petition for post-
conviction relief with the assistance of appointed counsel. After defendant complained that his lawyer
was refusing to raise every issue that he wished to pursue, the court gave petitioner the choice to
proceed pro se or to proceed with his appointed attorney; petitioner refused to proceed with counsel, so
the court allowed the motion to withdraw. Later, petitioner refused to cooperate at a scheduled
62

deposition, and defendant moved to dismiss the petition under ORCP 46 B(2) on the ground that
petitioner had refused to provide discovery. The post-conviction court granted the motion. Held:
Affirmed. [1] Defendant failed to preserve any of the challenges he makes on appeal regarding the
dismissal. On appeal, defendant challenged the authority of the post-conviction court to dismiss the
petition under ORCP 46 B(2) without a showing that petitioner had violated a court order compelling
him to cooperate at the deposition; he also asserted that the post-conviction court had failed to make
findings that would allow meaningful appellate review of its decision. He waived both arguments by
failing to make them below. [2] The post-conviction court acted within its discretion when it allowed
counsel to withdraw without appointing substitute counsel. See Temple v. Zenon, 124 Or App 388, 392-
93 (1993) (failure to appoint substitute counsel was not abuse of discretion where petitioner‘s sole
complaint was that counsel had failed to add claims to the petition).

        Kojah v. Santos, 215 Or App 354, 168 P3d 1258 (2007). Petitioner was entitled to post-
conviction relief on the ground that the trial court erroneously imposed a total 19-year sentence on
several robbery convictions, despite having bound itself to imposing sentences that totaled no more than
15 years.

        Buffa v. Belleque, 214 Or App 39, 162 P3d 376, rev den, 343 Or 690 (2007). Petitioner was
convicted of several burglaries in 2000, and the sentencing court departed upward on a finding of
―persistent involvement.‖ The judgment was entered a month after Apprendi was decided and before
the Court of Appeals issued its opinion in State v. Dilts. Petitioner alleged in this post-conviction
petition that his counsel provided inadequate assistance by failing to raise an Apprendi-based objection
to the departure. Held: ―Given the common understanding of Apprendi before the decision in Blakely,
counsel, exercising reasonable skill and judgment, could well conclude, even before Dilts, that there was
no merit in raising an Apprendi argument against a guidelines departure sentence.‖
        See also Bishop v. Hall, 214 Or App 291, 164 P3d 344 (2007) (per curiam).

        Ramirez v. State of Oregon, 212 Or App 446, 157 P3d 1290, on recon, 214 Or App 400, 164
P3d 1221, rev den, 343 Or 554 (2007). In light of Gonzalez v. State of Oregon, petitioner was
adequately advised by his trial counsel, and by his plea petition, that he ―may be deported‖ as a result of
the conviction. Given petitioner‘s express acknowledgement in his petition, ORS 135.385(2)(d) did not
require the trial court to address petitioner specifically concerning that term.
        See also Senda v. Thompson, 211 Or App 390, 155 P3d 53 (per curiam), on recon 212 Or App
706, 159 P3d 355, rev den, 343 Or 159 (2007) (per curiam) (same, rejecting claim under Sixth
Amendment).

         Quimby v. Hill, 213 Or 124, 159 P3d 1264, rev den, 343 Or 223 (2007). [1] The post-
conviction court properly granted defendant‘s motion to strike petitioner‘s pro se amended petition. ―It
violated ORCP 23 A (and ORS 138.610) in that it was filed without leave of the court. … In addition,
the amended petition violated ORCP 23 D in that it incorporated by reference allegations from the
original petition.‖ [2] The court correctly dismissed petitioner‘s claim that his counsel should have
objected when the prosecutor ―called her own witness a liar six times.‖ OEC 607 allowed the
prosecutor to challenge the credibility of the state‘s own witness, and the rule barring a witness from
commenting on the credibility of another witness ―does not prohibit a party from attacking the
credibility of any witness.‖ [3] Based on Palmer v. State of Oregon, the court correctly dismissed
petitioner‘s various claims that the trial court committed error, because he did not show that he could not
have raised those objections at trial and on appeal. [4] The court correctly dismissed petitioner‘s claim
that his counsel did not object when the witnesses ―were not given a proper oath.‖ Because OEC 603
does not prescribe a particular oath, petitioner‘s claim ―was insufficient to plea a denial of constitutional
rights that would render petitioner‘s conviction void under ORS 138.530(1)(a).
                                                                                                        63


        Trotter v. Santos, 212 Or App 473, 157 P3d 1233, on recon, 214 Or App 696, 167 P3d 488
(2007). Petitioner was convicted of attempted murder as a result of a near-miss shooting incident. He
alleged in his petition for post-conviction relief that his trial counsel provided inadequate assistance by
not requesting instructions on the lesser-included offenses. Held: Relief granted. [1] Where, as here,
the count alleged that the defendant used a firearm in the crime, ―attempted murder with a firearm
includes both attempted first-degree assault with a firearm and menacing as lesser-included offenses.‖
[2] ―Accordingly, petitioner was entitled to have the jury instructed as to those lesser-included offenses.
[Because] there is no indication that [defense counsel] made a tactical decision not to request the
instruction,‖ petitioner is entitled to relief if he suffered prejudice as a result. [3] Although the jury was
given an acquittal-first instruction, ORS 136.460(2), ―failure to vie a lesser-included jury instruction is
not harmless if the instruction was warranted.‖

        State v. Bisby, 212 Or App 86, 157 P3d 262, rev den, 343 Or 160 (2007). Pursuant to a plea
agreement, the parties stipulated to a 72-month sentence. At defendant‘s request, the court imposed that
term by upward departure on his coercion conviction and imposed a concurrent 25-month sentence on
his conviction for tampering with a witness. Later, a post-conviction court vacated all the sentences and
remanded for resentencing. At resentencing, more than 25 months after the original sentencing, the
court modified the sentences to consecutive presumptive terms of 36 and 30 months. Held: Reversed
and remanded. [1] ORS 138.222(5) ―applies only to courts imposing new sentences on remand from
‗the appellate court,‘ and not to cases like this one on remand from a post-conviction court.‖
[2] Because State v. Smith, 323 Or 450 (1996), precludes modification of a sentence that the defendant
already has served, the post-conviction court did not have authority under ORS 138.520 to allow a
resentencing of defendant‘s tampering conviction.

        Harrison v. Hall, 211 Or App 697, 156 P3d 141, rev den, 343 Or 159 (2007). The post-
conviction court granted defendant‘s motion for summary judgment and dismissed petitioner‘s petition
after he failed to respond to the motion. Held: Affirmed. [1] Even if respondent does contend that the
claim of error is unpreserved, the Court of Appeals has ―an independent obligation to determine whether
an argument advanced on appeal was preserved at trial.‖ [2] Petitioner failed to preserve his claim of
error on appeal by failing to respond to the motion for summary judgment. His reliance on pleadings and
affidavits in the record before the post-conviction court is misplaced because he ―had an obligation to
present argument in opposition or, at minimum, object to the state‘s motion and alert the court as to why
the motion should not have been granted.‖

PROSTITUTION

         State v. Nelson, __ Or App __, __ P3d __ (March 19, 2008). The trial court committed plain
error by not merging defendant‘s convictions for prostitution in violation of ORS 161.405 and for
unlawful prostitution procurement activities under Portland City Code § 14A.040.050. Unlawful
prostitution procurement activities encompasses acts that would constitute attempted prostitution; thus,
the failure to merge the inchoate crime into the completed crime was error under ORS 161.485(3) (―[a]
person shall not be convicted on the basis of the same course of conduct of both an actual commission
of an offense and an attempt to commit that offense.‖)

         State v. Duffy, 216 Or App 47, 171 P3d 988 (2007). Defendant was charged with engaging in
unlawful prostitution procurement activities, in violation of Portland City Code § 14A.40.050. Pretrial,
she filed a demurrer to the complaint, which was alleged in the language of the ordinance, alleging that
it did not give her sufficient notice of the factual allegations that would allow her to prepare her defense.
The trial court disallowed the demurrer, concluding that any lack of sufficiency in the accusatory
64

instrument was cured by the discovery, which specifically described defendant‘s conduct. At trial,
defendant argued that she was entitled to a jury instruction informing jurors that, to render a guilty
verdict, they must agree on any and all particular activities in which the state alleged that she engaged;
she relied on the fact that § 14A.40.050 defines unlawful prostitution procurement activity as ―any
conduct … that constitutes a substantial step in furtherance of an act of prostitution,‖ and then provides
that such activity ―includes, but is not limited to, lingering in or near any street or public place,
repeatedly circling an area in a motor vehicle, or repeatedly beckoning to, contacting, or attempting to
stop pedestrians or motor vehicle operators.‖ Defendant argued that the activities listed in the ordinance
constituted separate crimes. Held: Affirmed. [1] Discovery materials put defendant on notice of the
acts underlying the charge. Although the complexity of a charge or the volume of potential discovery
materials may make it impractical to rely on discovery to remedy any imprecision in an accusatory
instrument, the charge in this case is straightforward, it involved activities by one defendant in one
location, and the discovery and its details are minimal. [2] The ordinance does not create separate
theories of the crime that require juror agreement. Each activity under the ordinance involves a separate
set of circumstances under which the single offense of unlawful prostitution procurement activities may
be committed. The state‘s factual theories were alternative means of committing a single offense, not
separate elements that required juror agreement.

RECKLESSLY ENDANGERING

         State v. Savage, 214 Or App 343, 164 P3d 1202 (2007). Defendant was entitled to a judgment
of acquittal on a charge of recklessly endangering another person under ORS 163.195. Without
evidence of defendant‘s conduct or the circumstances under which the child left the house, the mere fact
that a four-year-old was seen riding a tricycle on a residential street on a summer morning was
insufficient evidence that defendant acted recklessly.

RIGHT TO COUNSEL
       See also ―DUII: breath test‖; ―Habeas Corpus: federal cases‖; and ―Post-Conviction
Proceedings,‖ above.

        Right to counsel: before indictment

         State v. Scott, 343 Or 195, 166 P3d 528 (2007). After defendant unequivocally invoked his
right to counsel, all police interrogation was required to cease, despite a cryptic comment by defendant
that he ―need[ed]‖ a lawyer because of something he had seen on television. Under Rhode Island v.
Innis, 446 US 291, 301 (1980), the officer‘s question—―You saw something on TV?‖—in response to
defendant‘s comment was interrogation because it was reasonably likely to elicit an incriminating
response. ―Incriminating response‖ includes any inculpatory or exculpatory statements that the
prosecution later may seek to introduce at trial.

         State v. Matviyenko, 212 Or App 125, 157 P3d 268 (2007). Defendant was arrested for DUII
and, at the scene of the arrest, told the trooper that he wished to call an attorney; the trooper responded
that he could call an attorney from the patrol office. At the patrol office, defendant asked to call his
wife, and the trooper told him that he could make any phone calls at that time. He did not expressly tell
defendant that he could call an attorney, but he did not place any limits on who defendant could call.
The trooper remained seated at the desk next to defendant while defendant called his wife. After
speaking to his wife, defendant made no further phone calls and gave no other indication that he still
wanted to call an attorney. He then took the Intoxilyzer test. Defendant moved to suppress the breath-
test result, arguing that the trooper did not honor his right to have a confidential communication with an
attorney; the trial court denied the motion. Held: Reversed. By remaining in the room without
                                                                                                      65

indicating to defendant that he would receive privacy if he wished to consult with an attorney, the
trooper did not fully honor defendant‘s request to consult with counsel. The right to consult with
counsel includes the right to consult privately with counsel.

       Right to counsel: substitution of counsel

         State v. Miller, 214 Or App 494, 166 P3d 591 (2007), adh’d to on recon, 217 Or App 576, 176
P3d 425 (2008). Defendant was convicted by a jury of several felony charges; on appeal, he challenged
the trial court‘s denial of his motion for substitution of counsel and its order requiring him to proceed
pro se during the first day of trial. Defendant first raised his complaints about his appointed attorney
(his third attorney) after the jury already had been empaneled and the trial had begun. The dispute
revolved around the defendant‘s insistence that counsel present a defense that was not supported by the
evidence. At that time, counsel moved to withdraw based on the conflict created by defendant‘s
demands. The trial court allowed defense counsel to withdraw, but refused to appoint substitute counsel
because defendant previously had delayed the case by filing motions to replace previous attorneys. As a
compromise, the trial court required counsel to remain as a legal adviser to defendant at trial. After the
testimony of five witnesses, the court adjourned for the day; on the following day, defendant and
counsel conferred and informed the court that defendant now wished to have counsel represent him
throughout the rest of the trial, and that counsel was willing to do so. From that point on, counsel
represented defendant at trial. Held: Convictions affirmed. [1] Defendant‘s claim that he was entitled
to independent counsel for purposes of the motion to substitute counsel based on his argument that it
was a ―critical stage of the proceeding‖ is unpreserved. [2] The court acted within its discretion in
refusing to appoint substitute counsel, based on defendant‘s previous delays and the fact that trial had
already begun. The court also relied on the fact that the reason for the motion was defendant‘s desire to
have his attorney advance a defense that the attorney believed was unethical; a defendant ―does not have
the constitutional right to counsel who will violate ethical rules to advance a defense.‖ [3] Even if the
trial court erred by failing to inquire about defendant‘s understanding of the risks of proceeding pro se,
it was harmless because defendant was pro se for only a short period of time and counsel was present
and acting as standby counsel. The error was not ―structural error‖ that requires reversal even without
any showing of prejudice.

        Mota v. Hill, 215 Or App 623, 170 P3d 1092 (2007). Petitioner filed a petition for post-
conviction relief with the assistance of appointed counsel. After defendant complained that his lawyer
was refusing to raise every issue that he wished to pursue, the court gave petitioner the choice to
proceed pro se or to proceed with his appointed attorney; petitioner refused to proceed with counsel, so
the court allowed the motion to withdraw. Held: Affirmed. The post-conviction court acted within its
discretion when it allowed counsel to withdraw without appointing substitute counsel. See Temple v.
Zenon, 124 Or App 388, 392-93 (1993) (failure to appoint substitute counsel was not abuse of discretion
where petitioner‘s sole complaint was that counsel had failed to add claims to the petition).

       Right to counsel: trial

        State v. Knight, 343 Or 469, 173 P2d 1210 (2007). The trial court erroneously admitted a tape
recording of statements by defendant to his mother during a jail call without redacting derogatory
statements that defendant made about counsel. The probative impeachment value of the evidence was
not particularly high, stating that the state ―probably could have obtained the desired result, i.e.,
impeachment, without using statements that directly attacked defendant‘s lawyer.‖ Moreover, ―after the
jury heard that defendant was unimpressed with his lawyer‘s ability, his cause was sunk‖; ―it is
inescapable that [the statements] did sufficient damage to compromise defendant‘s constitutional right to
representation and the overall fairness of defendant‘s trial.‖
66



         State v. Lewis, 217 Or App 56, 174 P3d 1043 (2007). [1] Even if the state violated Art. I, § 11,
by failing to appoint counsel at arraignment and instead continuing the case for 13 weeks for that
purpose, the remedy would be to suppress evidence obtained as a result of the violation. Because there
was no evidence to suppress, the trial court correctly denied defendant‘s motion to dismiss. [2] The
Sixth Amendment right to counsel does not apply to a misdemeanor for which the defendant received no
jail time.

ROBBERY

        State v. Walch, 218 Or App 86, __ P3d __ (2008). Defendant was charged with first-degree
robbery under ORS 164.415(1)(c) (attempting to cause serious physical injury in the course of the
robbery), and defendant unsuccessfully requested an instruction on second-degree robbery. Held:
Affirmed. Second-degree robbery requires proof either that the defendant ―[represented] by word or
conduct that [he was] armed with‖ a weapon or that he was ―aided by another person actually present.‖
Because the elements of second-degree robbery are not subsumed in the charged offense, defendant was
not entitled to the instruction.

        State v. White, 217 Or App 214, 175 P3d 504 (2007). Because defendant‘s two convictions for
robbery under ORS 164.405(1)(a) (the defendant committed robbery and ―represent[ed] that [he was]
armed with what purports to be a dangerous or deadly weapon‖) and ORS 164.405(1)(b) (commission of
robbery while ―aided by another person present‖), involve separate statutory provisions, they do not
merge under ORS 161.067. The provision that applies to robbery while representing that the robber is
armed was intended to address psychological harms created by a perceived armed robbery; the provision
that applies to robbery while aided by another person present was intended to address the additional
physical harm that may result in a robbery by two robbers.

         State v. Johnson, 215 Or App 1, 168 P3d 312, rev den, 343 Or 366 (2007). Based on his theft
of a purse from an 86-year-old woman, defendant was charged with third-degree robbery; the indictment
alleged that he used force with the intent to prevent or overcome resistance to the taking of the property.
At trial, he unsuccessfully moved for a judgment of acquittal arguing that, although he may have applied
force to the purse, there was no evidence that he used force on the victim. Held: Affirmed. The
robbery statute focuses on the perpetrator‘s intent to use force, not the victim‘s perception of force.
There was sufficient evidence that defendant intended to use force that was sufficient to prevent or
overcome any resistance by the victim. Indeed, a perpetrator might ―prevent‖ a victim‘s resistance by
acting so quickly that the victim does not have time to resist.

        State v. Rennells, 213 Or App 423, 162 P3d 1006, rev den, 343 Or 206 (2007). Defendant
waited in a car 25 feet away while Jackson approached the victim, knocked her down, and grabbed her
purse. Both defendant and Jackson were charged with second-degree robbery under ORS 164.405(1)(b)
(―aided by another person actually present‖). Held: Reversed. [1] The evidence was sufficient to prove
that defendant was ―actually present‖ because he was ―within reach, sight or call as to present an
immediate added threat to the victim‘s safety.‖ [2] The trial court erred in failing to instruct the jury
whether defendant actively engaged in the use or threat of use of force during the robbery. In order to
be culpable under ORS 164.405(1)(b), a defendant must actively engage in the force involved in the
robbery.
        Note: The trial court did not give an instruction telling jurors that defendant could be found
guilty of second-degree robbery based on an aid-and-abet theory (i.e., that defendant aided his co-
defendant‘s use of force by being actually present), so the court did not reach that issue in this case.
                                                                                                    67


         State v. Jackson, 212 Or App 51, 157 P3d 239 (2007). Defendant forcibly grabbed a woman‘s
purse while Rennells waited in a car with the engine running. After robbing the victim, defendant
jumped into the passenger side of the car, the door of which had been left open. He was convicted of
second-degree robbery under ORS 164.405(1)(b) ( ―aided by another person actually present‖). On
appeal, he argued that the aid of Rennells, 10 to 25 feet from the robbery, was not the aid of a person
―actually present.‖ Held: Affirmed. The term ―aided by another person actually present‖ includes a
person who is at hand, or within reach, sight or call, and who, under the totality of the circumstances,
presents an added threat to the victim‘s safety. A jury could find that, because of the driver‘s proximity
to the robbery and his presence in a car with the engine running, he posed a real and immediate threat to
the victim‘s safety.

SEARCH & SEIZURE
     See also ―Arrest‖ and ―Interception of Communications,‖ above; ―Stop and Frisk,‖ below.

        Search & seizure: privacy interests / searches

         State v. Howard/Dawson, 342 Or 635, 157 P3d 1189 (2007). Based on a suspicion that
defendants were manufacturing methamphetamine, police officers asked a sanitation company to keep
defendants‘ garbage separate from other garbage after they had collected it, and to turn the garbage over
to the officers. The company did so, and officers found evidence that they used to support a search
warrant for defendants‘ home. Based on the evidence obtained pursuant to the warrant, defendants were
charged with MCS and PCS. The trial court denied defendants‘ motion to suppress the evidence based
on their argument that the search of their garbage was unreasonable under Article I, section 9, of the
Oregon Constitution. Held: Affirmed. Defendants lost any possessory or ownership interests when the
sanitation company collected the garbage, and thus the officers‘ seizure did not violate their possessory
rights. Moreover, because they no longer had any right to control the disposition of the property after
the company took it, they effectively abandoned any privacy interest that they otherwise may have had
in the items. The fact that defendants subjectively may not have expected that anyone would look
through their garbage is irrelevant to whether they had a privacy right that is protected by the Oregon
Constitution. See also California v. Greenwood, 486 US 35 (1988) (reaching same result under Fourth
Amendment ―reasonable expectation of privacy‖ analysis).

        State v. Heckathorne, 218 Or App 283, __ P3d __ (2008). Even though the officer knew from
training that the unusual blue staining of a metal container demonstrated that it contained anhydrous
ammonia, it did not ―announce its contents to the world.‖ Defendant retained a privacy interest in the
container because its contents were obvious only to a small specially trained segment of the citizenry.

         State v. Magana, 212 Or App 553, 159 P3d 1163, rev den, 343 Or 363 (2007). Although a
citizen may have a privacy interest in the contents of his cellular telephone calls, the citizen does not
have a privacy interest in the records of his or her calls maintained by a third party. The police,
therefore, were not required to obtain a search warrant before obtaining defendant‘s cell phone records
from his cell-phone provider.
         See also State v. Delp, 218 Or 17, __ P3d __ (2008) (defendant, a customer, lacked a protected
interest in ISP subscriber records).

       State v. Brown, 212 Or App 164, 157 P3d 301, rev den, 343 Or 223 (2007). Defendant was
convicted in 2002 on a charge of first-degree rape for an attack that occurred in 1998. The bulk of the
evidence inculpating him was obtained as a result of DNA evidence that was obtained in 2001 pursuant
to ORS 137.076, which required defendant, as a consequence of other felony convictions, to provide a
68

buccal sample. The trial court denied defendant‘s motion to suppress the evidence on the ground that
the compelled buccal sample in 2001 was an unreasonable seizure. Held: Affirmed. Requiring
convicted felons to provide a buccal sample is akin to the fingerprinting of a person in custody, and thus
is not an unreasonable seizure under either Art I, § 9, or the Fourth Amendment.

        Search & seizure: probable cause

         State v. Petri, 214 Or App 138, 162 P3d 1053 (2007). The officer did not have probable cause
to arrest defendant for possession of controlled substances based only on: observing defendant leave a
known drug house, defendant acted nervous and surprised upon being stopped for a traffic infraction,
and defendant admitted to possessing a ―point,‖ or a hypodermic syringe.

         State v. Miller, 211 Or App 667, 156 P3d 125, rev allowed 343 Or 554 (2007). A deputy sheriff
called to investigate a single car crash observed defendant walking on the road, ½ mile from the crash
scene. Defendant had cuts and abrasions, and had debris on his clothes and hair, and he otherwise
matched the reported description of the driver. When the deputy contacted him, he denied being the
driver, saying, ―It‘s not my truck,‖ even though the deputy had not mentioned a truck. The deputy
handcuffed defendant and placed him in the back of another officer‘s patrol car and had him transported
to the crash scene. At the scene, a third officer identified defendant as the driver. The officers then
found drugs among the wreckage of the vehicle. Defendant moved to suppress the evidence, arguing
that the officer lacked subjective probable cause to arrest him and place him in the patrol car. The
deputy testified at the hearing that, when he handcuffed defendant, he ―had reasonable suspicion, but I
had not yet reached sufficiently to call it probable cause.‖ The trial court denied the motion. Held:
Reversed. Because the deputy testified that he did not have subjective probable cause, and no evidence
in the record contradicts that statement, there was no basis from which the trial court could have inferred
subjective probable cause.

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

         Los Angeles County v. Rettele, 550 US __, 127 S Ct 1989, 167 L Ed 2d 974 (2007). Officers
obtained a warrant to search a house for evidence of an identity-theft ring operated by four black men
who were known to be armed. Unbeknownst to the officers, the house recently had been sold to
plaintiffs, a white couple with a teenage son. When the officers executed the warrant, the son answered
the door, and the officers then entered the couple‘s bedroom, forcing them from the bed naked at
gunpoint. Within 15 minutes, the officers realized their mistake, apologized, and executed a second
warrant at the correct residence. Plaintiffs filed suit under 42 USC § 1983 alleging the officers had
violated their Fourth Amendment rights. The district court rejected the claims on the merits and on the
basis of qualified immunity. The Ninth Circuit reversed. Held: Reversed, district court affirmed. The
mere fact that plaintiffs are white and were not visibly armed did not negate the basis for entry and brief
detention. The officers‘ actions during their entry were reasonable to ensure their own safety and the
efficacy of the search.

         State v. Clapper, 216 Or App 413, 173 P3d 1235 (2007). [1] A warrant for an out-of-county
search need not expressly state that objects sought relate to a crime in the issuing judge‘s county.
ORS 133.545 requires only that the magistrate ―find[] from the application‖ that an item sought in the
search relates to a crime triable in the issuing county. The warrant demonstrated that the court had made
that finding. [2] The affidavit provided a nexus between the Wallowa County crime and the Portland
residence. Although the affidavit did not expressly state that defendant lived at the residence, the
references to the likely presence of guns and other evidence at the residence, along with a reference to
defendant‘s Jeep, which it said would likely be in the parking lot, implicitly tied defendant to the
                                                                                                     69

residence. The officer‘s training and experience established that evidence of the illegal hunting would
likely be found at the hunter‘s residence, thus providing a nexus between the crime and the residence.

        State v. Castilleja, 215 Or App 235, 168 P3d 1177 (2007), rev allowed, 344 Or 109 (2008).
[1] Defendant‘s mother lacked actual authority to consent to an initial entry; the circuit court correctly
excised the observations made by the officers at that time. [2] Because the warrant was based on
observations that had to be excised, the trial court was not required to give deference to the magistrate‘s
determination of probable. The Court of Appeals held that because the magistrate‘s determination of
probable cause was based on unlawfully obtained information, inferences from the remaining facts do
not have to be viewed in favor of upholding the warrant.

         State v. Forker, 214 Or App 622, 168 P3d 279 (2007), rev den, 344 Or 280 (2008). Defendant
was charged with encouraging child sexual abuse based on material seized from his residence pursuant
to a search warrant. The affidavit recited that the affiant, a detective with the Washington County
Sheriff‘s office, had separate communications with the DHS Child Abuse Hotline and an informant who
had called the hotline and identified himself as ―Dale Nader, a psychotherapist.‖ The caller had
identified defendant by name, DOB, and address, and stated that he was a ―mandatory reporter‖ and that
defendant was a ―former patient‖; he reported that defendant was engaging in sex with young males, and
that he collected child pornography and engaged in relationships with boys in Internet chat rooms. The
affidavit described the affiant‘s later telephone conversation with Nader, in which he had expanded on
the report in greater detail. Defendant unsuccessfully moved to suppress, arguing that the affidavit
failed to support a finding of probable cause to support the warrant for his residence. Held: Convictions
affirmed. [1] A magistrate could infer that Nader was defendant‘s former therapist and that the
information came from defendant himself, even though the officer did not take steps to corroborate
Nader‘s account. In light of the level of detail and the content of the report, the court concluded that—
despite gaps in the affiant‘s explanation of how she obtained the information in the affidavit—a
common-sense view of the affidavit supported an inference that Nader was an authentic named
informant and that he had obtained the information directly from the defendant. [2] The affidavit
supported an inference that defendant was currently engaged in criminal conduct with minors and that
evidence would be found at his residence. The warrant was executed within a week after the
termination of treatment based on defendant‘s failure to follow the safety plan, and the affidavit
established that defendant had an ―extensive‖ collection of child pornography that was likely to still be
at the residence. It also was reasonable to infer that defendant kept his personal computer in his
residence, rather than in some other location. Finally, although the affidavit did not explain how Nader
had obtained defendant‘s address, it was reasonable to infer that he obtained it in the course of his
professional services.

        State v. Luers, 211 Or App 34, 153 P3d 688, aff’d on recon, 213 Or App 389, 160 P3d 1013
(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—abandonment

        State v. Howard/Dawson, 342 Or 635, 157 P3d 1189 (2007). Based on a suspicion that
defendants were manufacturing methamphetamine, police officers asked a sanitation company to keep
defendants‘ garbage separate from other garbage after they had collected it, and to turn the garbage over
to the officers. The company did so, and officers found evidence that they used to obtain a warrant for
defendants‘ home. Based on the evidence obtained pursuant to the warrant, defendants were charged
70

with MCS and PCS. Defendants moved to suppress contending that the search of their garbage was
unlawful under Article I, section 9, and the trial court denied the motion Held: Affirmed. Defendants
lost any possessory or ownership interests when the sanitation company collected the garbage, and thus
the officers‘ seizure did not violate their possessory rights. Moreover, because they no longer had any
right to control the disposition of the property after the company took it, they effectively abandoned any
privacy interest that they otherwise may have had in the items. The fact that defendants subjectively
may not have expected that anyone would look through their garbage is irrelevant to whether they had a
privacy right that is protected by the Oregon Constitution. See also California v. Greenwood, 486 US
35 (1988) (reaching same result under Fourth Amendment ―reasonable expectation of privacy‖
analysis).

       Search & seizure: warrantless searches—consent

        State v. Dunlap, 215 Or App 46, 168 P3d 295 (2007). Defendant‘s consent to a search of his
computer was not compelled by the ―must consent to search‖ probation condition. Under State v. Davis,
133 Or App 467 (1995), the mere fact that the defendant had to decide whether to give consent or
violate his probation did not render his consent involuntary. And although defendant pointed to his trial
testimony that he felt compelled by the probation officer‘s body language and responses to defendant‘s
questions, those circumstances did not render the consent involuntary under Art. I, § 9, or the Fourth
Amendment.

         State v. Weaver, 214 Or App 633, 168 P3d 273, rev den, 343 Or 691 (2007). Although officers
lawfully made an initial entry into defendant‘s residence to protect her children, their subsequent search
for firearms after arresting defendant for interfering with a peace officer was not authorized by the
children‘s consent. Because defendant, who was still present, had refused to permit the entry, the
officers‘ entry over defendant‘s refusal was unlawful under Georgia v. Randolph, 547 US 103 (2006).

       State v. Norkeveck, 214 Or App 553, 168 P3d 265 (2007). That defendant invoked his right to
counsel and was in custody did not, of itself, render his consent to search his computer involuntary.

       Search & seizure: warrantless searches—emergency aid

         State v. Weaver, 214 Or App 633, 168 P3d 273, rev den, 343 Or 691 (2007). After defendant
attempted to slam the door during a welfare check on her children, the emergency-aid doctrine
authorized the officer to enter to ensure the children‘s safety. Defendant‘s reported neglect, her prior
mental-commitment order, her current erratic behavior, and her possession of firearms provided
reasonable grounds to believe that the children and maybe others were in immediate danger should the
officers lose contact with defendant and the children. A further search for firearms after defendant‘s
arrest for interfering with a peace officer was not authorized by the emergency-aid doctrine.

       Search & seizure: warrantless searches—incident to arrest

         State v. Petri, 214 Or App 138, 162 P3d 1053 (2007). The officer did not have probable cause
to arrest defendant for possession of controlled substances based only on: observing defendant leave a
known drug house, defendant acted nervous and surprised upon being stopped for a traffic infraction,
and defendant admitted to possessing a ―point,‖ or a hypodermic syringe.

       Search & seizure: warrantless searches—inevitable discovery

       State v. Petri, 214 Or App 138, 162 P3d 1053 (2007). The state failed to prove the contested
                                                                                                      71

evidence would have inevitably been discovered because it ruled that the state failed to prove the
evidence would have been lawfully discovered under another basis. In particular, the state failed to
prove the applicable inventory policy did not explicitly provide for the opening of closed containers.
The state also failed to introduce the terms of the inventory policy, relying instead upon the officer‘s
testimony that, after arresting defendant, the officer would have searched defendant further ―to
inventory the contents of his person prior to placing him in the police vehicle.‖

        Search & seizure: warrantless searches—inventory / administrative searches

         State v. Ferrara, 218 Or App 57, __ P3d __ (2008). A deputy medical examiner‘s entry into a
murder scene was lawful under ORS 146.107 to investigate a suspicious death. It was lawful under
Art I, § 9, based on probable cause and exigent circumstances, due to the potential degradation of
evidence, including the need to determine the temperature of the body. Because the entry was limited to
investigating the cause of death, the entry was lawful under the Fourth Amendment.

         State v. Weaver, 214 Or App 633, 168 P3d 273, rev den 343 Or 691 (2007). Although
ORS 419B.020 (2005) generally authorizes DHS to investigate ―the nature and cause of the abuse of the
child,‖ that language does not expressly or implicitly allow entry into a residence for investigation
purposes.

        State v. Petri, 214 Or App 138, 162 P3d 1053 (2007). The officer unlawfully opened a closed
sunglass container found in defendant‘s pocket because, in part, the applicable inventory policy did not
expressly provide for the opening of closed containers. The state failed to introduce the terms of the
inventory policy, relying instead upon the officer‘s testimony that, after arresting defendant, the officer
would have searched defendant further ―to inventory the contents of his person prior to placing him in
the police vehicle.‖

        State v. Guerrero, 214 Or App 14, 162 P3d 1048 (2007). A corrections officer cannot open a
suspect‘s closed container during an inventory of the suspect‘s property unless the relevant inventory
policy expressly provides for the opening of closed containers.

        Search & seizure: exclusionary rule

         State v. Tyler, 218 Or App 105, __ P3d __ (2008). The state failed to rebut defendant‘s showing
of a ―causal connection‖ between an unlawful stop (warrants check) and the officer‘s request for
consent, because the state did not prove that the officer‘s request was not prompted by his discovery that
defendant was on probation. Under State v. Hall, a causal connection may exist because the officer
seeks consent only because of information learned during the stop. Alternatively, a causal connection
may exist if the illegal conduct, although not overcoming the defendant‘s free will, ―significantly
affects‖ the defendant’s decision to consent. Here, the second prong was not at issue because defendant
testified that he consented because of his belief that his probation condition required him to consent.
Nevertheless, the state had failed to meet its burden to prove that the officer‘s decision to request
consent was not prompted by his learning of the probation status.

        State v. Neill, 216 Or App 499, 173 P3d 1262 (2007). Under State v. Janicke, 103 Or App 227
(1990), regardless of the legality of the entry, the exclusionary rule does not apply to crimes that
threaten officers‘ safety in the course of the entry.

        State v. Rider, 216 Or App 308, 172 P3d 274 (2007). Defendant‘s consent, which was given
shortly after one officer asked another officer to run a records check on him, was the product of
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exploitation of an unlawful stop under State v. Hall, 339 Or 7 (2005). The court rejected the state‘s
argument that defendant failed to establish even a ―but for‖ connection between the stop and the request
for consent, stating that, under Hall, it is necessary to consider ―the effect of the unlawful police conduct
upon the defendant‘s decision to consent.‖

        State v. Washburn, 216 Or App 261, 173 P3d 156 (2007). The officers obtained consent only
by ―trading on‖ their observation of an unattended small child during a previous unlawful entry into
defendant‘s motel room. The officers admitted that they would not have sought consent to enter the
room if they hadn‘t seen the child in their first entry. The state failed to prove that the second entry
would have occurred based on independently obtained information or that there was sufficient
attenuation between the illegality and the consent.

         State v. Caprar, 214 Or App 434, 166 P3d 567 (2007). Defendant‘s consent was the product of
exploitation of an unlawful stop because, but for the stop, defendant would not have been asked to
consent. Because the officer ―traded on‖ information that she learned during the illegal detention—i.e.,
she asked defendant about drug activity she discovered at an apartment while he remained with another
officer in a parking lot—defendant‘s consent to search was the product of exploitation of the original
stop.

        State v. Kayfes, 213 Or App 543, 162 P3d 308, rev den, 343 Or 390 (2007). Defendant, a
former middle-school teacher and coach, was charged with numerous sexual offenses involving a
student. At trial, the 16-year-old victim refused to testify, and the trial court admitted a series of tape-
recorded telephone conversations between the victim and defendant that the victim‘s parents
surreptitiously recorded. Held: Affirmed. Although the victim‘s parents may have violated 18 USC
§ 2511 by making the surreptitious recordings, the parents were not state actors and, as a result, 18 USC
§ 2515 did not require suppression of the tapes.

         State v. Prew, 213 Or App 336, 161 P3d 323 (2007). An OSP trooper videotaped the traffic stop
of defendant, including defendant‘s performance of FSTs and his inculpatory statements about the level
of his intoxication. The trooper, however, failed to inform defendant that he was filming the encounter.
Defendant moved to suppress both the videotape of his traffic stop and the trooper‘s testimony, and the
trooper testified in the pretrial hearing that he had reviewed the videotape to help refresh his memory.
Held: [1] Because defendant had not been informed of the taping, ORS 165.540 required suppression of
the videotape. [2] But the officer‘s testimony of his recollections of the traffic stop was admissible
because defendant had failed to prove that the officer‘s testimony came exclusively from his review of
the illegal videotape.

SENTENCING

        Sentencing: constitutional issues—right to jury, Apprendi

        Rita v. United States, 551 US __, 127 S Ct 2456, 168 L Ed 2d 203 (2007). In United States v.
Booker, 543 US 220 (2005), the Court held that the federal sentencing guidelines violate the right-to-
jury rule in Blakely and, to cure that constitutional infirmity, the Court held the guidelines to be merely
advisory. [1] The court of appeals may apply a presumption of reasonableness to a sentence that is
within the presumptive range prescribed by the guidelines. Because the presumption is not binding and
does not impose a burden on either party, that presumption does not violate Blakely. [2] ―The
sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties‘
argument and has a reasoned basis for exercising his own legal decision-making authority.‖ A full
opinion is not necessary in every case, and ―judge decides to simply apply the Guidelines to a particular
                                                                                                     73

case, doing so will not require a lengthy explanation.‖

         James v. United States, 550 US __, 127 S Ct 1586, 167 L Ed 2d 532 (2007). Defendant pleaded
guilty to felon in possession of a firearm, 18 USC § 922(g), and he admitted the three prior state-court
felony convictions alleged in the indictment, including one for attempted burglary. Defendant argued
that he was not subject to the mandatory 15-year sentence under the Armed Career Criminal Act, 18
USC § 924(e), because his attempted-burglary conviction did not constitute a ―violent felony‖ under the
Act. The sentencing court disagreed and imposed the enhanced sentence. Held: Affirmed. The
attempted-burglary conviction falls into the Act‘s ―residual provision‖ for crimes that ―otherwise
involve conduct that presents a serious potential risk of physical injury to another,‖ § 924(e)(2)(B)(ii).
[1] Nothing in the text or legislative history of the Act bars use of a conviction for an attempt crime as a
predicate. In determining which offenses constitute a ―violent felony‖ under the Act, ―we consider
whether the elements of the offense are of the type that would justify its inclusion within the residual
provision, without inquiring into the specific conduct of this particular offender.‖ This offense does.
[2] Defendant is not entitled under Apprendi to a jury trial on the issue whether the attempted-burglary
offense is a ―violent felony‖ because ―the Court is engaging in statutory interpretation, not judicial
factfinding‖—―we have avoided any inquiry into the underlying facts of [his] particular offense, and
have looked solely to the elements of attempted burglary as defined by Florida law.‖ Moreover, ―we
have held that prior convictions need not be treated as an element of the offense for Sixth Amendment
purposes.‖

        State v. Ice, 343 Or 248, 170 P3d 1049 (2007). Under Blakely, the findings necessary to impose
consecutive sentences under ORS 137.123 must be made by a jury, not by a judge. The Sixth
Amendment right to trial by jury, as interpreted in Blakely and other United States Supreme Court cases,
requires jury findings on both the issue of whether individual counts arose from ―the same continuous
and uninterrupted course of conduct‖ (in which case consecutive sentences would be authorized under
ORS 137.123(2)), and the issue of whether individual counts arising from the same continuous and
uninterrupted course of conduct can be sentenced consecutively based on the presence of one or more of
the consecutive-sentence factors set out in ORS 137.123(5)(a) and (b).

         State v. Bray, 342 Or 711, 160 P3d 983 (2007). Defendant was convicted on multiple counts of
encouraging child sexual abuse. At sentencing, the court departed upward based on findings of three
aggravating factors, including that defendant was persistently involved in similar offenses, OAR 213-
008-0002(2)(b)(D), and found that any factor standing alone would support the departures. On appeal,
the state argued that the ―persistent involvement‖ finding was permissible under the ―fact of a prior
conviction‖ exception in Blakely. Held: Reversed and remanded. [1] Because the sentencing court
found any factor was sufficient, the appellate court could affirm if any of the factors was legally
permissible. [2] Under the rule, ―[t]he trier of fact must infer from the number and frequency of those
prior convictions whether the defendant‘s involvement in similar offenses is sufficiently continuous ore
recurring to say that it is ‗persistent.‘‖ Thus, the ―persistent involvement‖ factor ―presents a factual
issue that, under Apprendi and Blakely, a defendant may insist that a jury find beyond a reasonable
doubt.‖ [3] Although a reasonable juror could find ―persistent involvement‖ based on defendant‘s
criminal record, the error was not harmless.

         State v. Hess, 342 Or 647, 159 P3d 309 (2007). Defendant was charged with felony public
indecency, ORS 163.465. Prior to trial, he stipulated to his prior public-indecency convictions and the
court, over the state‘s objection, removed the prior-convictions element from the jury‘s consideration.
The state appealed. Held: Affirmed. [1] The fact that the legislature has expressly provided a
stipulation process for other crimes (e.g., DUII and aggravated murder) but did not do so for this offense
does not indicate a legislative intent not to have a similar stipulation process apply here. [2] Because
74

defendant‘s ―judicial admission unconditionally resolved the prior convictions issue in the state‘s favor
and left only a sentencing issue for the court,‖ the prior conviction became irrelevant in the guilt phase
and the trial court properly excluded it.
         Note: The court did not resolve whether the prior-conviction allegation is ―a sentencing factor
rather than an element of the crime.‖ It is unclear whether this ruling applies to an element other than a
prior-conviction allegation that is used to enhance the seriousness of the offense for sentencing
purposes.

         State v. Smith, 218 Or App 278, __ P3d __ (2008). Although the sentencing court committed
―plain error‖ by imposing consecutive sentences under ORS 137.123(5)(b) (risk of loss, injury or harm
to a different victim) in the absence of jury findings, the Court of Appeals declined to review it because
there was no legitimate debate that the UUV involved harm to one victim, and defendant‘s possession of
an altered key created a risk of harm to other victims.

        State v. Cone, 218 Or App 273, __ P3d __ (2008). Although the order imposing consecutive
sentences under ORS 137.123(5)(b) was ―plain error‖ in light of the later decision in State v. Ice, the
Court of Appeals declined to exercise its discretion to correct the error because ―[t]here can be no
doubt‖ that the harm caused by the assault (physical injury to the victim‘s person) was qualitatively
different and greater than the harm caused by the burglary (unlawful entry onto the victim‘s property).

       State v. Loftin, 218 Or App 160, __ P3d __ (2008). Without a jury finding that the crime for
which the consecutive sentence was sought was not merely incidental to a more serious crime, the court
erroneously imposed consecutive sentences under ORS 137.123(5)(a). The mere fact that crimes are
―equally serious‖ does not justify consecutive sentences under that provision.

         State v. Walch, 218 Or App 86, __ P3d __ (2008). [1] Court refused to consider defendant‘s
unpreserved claim that the trial court did not clearly instruct the jurors that, to make affirmative findings
on any fact allowing consecutive sentences, they had to make the finding beyond a reasonable doubt.
Because the trial court‘s preliminary instructions informed the jurors that the state had the ―beyond a
reasonable doubt‖ burden, the trial court did not commit plain error by failing to give a more specific
instruction later. [2] In addition, the Court of Appeals relied on State v. Sawatzky, 339 Or 689 (2005), in
rejecting defendant‘s unpreserved assertion that the state was required to allege the consecutive-sentence
enhancement facts in the indictment, stating: ―[W]e see no reason, in light of Ice, to draw any
distinction between [the departure factors addressed in Sawatzky] and the facts supporting consecutive
sentences.‖

       State v. White, 217 Or App 214, 175 P3d 504 (2007). Under State v. Crescencio-Paz, 196 Or
App 655 (2004), rev den, 339 Or 230 (2005), jury findings are not required for facts that render a
defendant ineligible for a downward departure under ORS 137.712.

         State v. Wick, 216 Or App 404, 173 P3d 1231 (2007). The trial court erred by refusing to
empanel a jury to determine enhancement facts after the state gave notice of its intent to seek a jury
determination on enhancement facts nine months after charging defendant with the offenses (in fact,
between trial and sentencing) but only several days after the enactment of ORS 136.765. Although the
statute now requires the prosecution to provide written notice of its intent to rely on enhancement facts
within a ―reasonable time‖ after filing the accusatory instrument, it would frustrate the legislature's
intent to hold that the state‘s notice in this case, which was filed within 11 days after the notice
requirement went into effect, was untimely.
         Note: This case should not be interpreted to remove or loosen the ―reasonable time after filing
the accusatory instrument‖ requirement. A nine-month delay between arraignment and ORS 136.765
                                                                                                       75

notice likely will be difficult to justify as ―reasonable‖ under ordinary circumstances.

         State v. Wilson, 216 Or App 226, 173 P3d 150 (2007), rev den, 344 Or __ (2008). The
sentencing court erroneously ordered the sentences on defendant‘s convictions for attempted aggravated
murder to be served consecutively to the sentence on the conviction for first-degree kidnapping based on
its finding that it caused a ―greater or qualitatively different injury‖ to the victim than that caused by the
kidnapping. Under State v. Ice, that question was required to be determined by the jury, not by the
court.

        State v. Bowen, 215 Or App 199, 168 P3d 1208 (2007). Nothing in Blakely purports to overrule
the decision in Apodaca v. Oregon, 406 US 404 (1972), in which the Court held that a less-than-
unanimous jury verdict does not violate the Sixth Amendment.
        See also State v. Norman, 216 Or App 475, 174 P3d 598 (2007) (same).

        State v. Kayfes, 213 Or App 543, 162 P3d 308, rev den, 343 Or 390 (2007). Defendant, a
former middle-school teacher and coach, was convicted of numerous sexual offenses involving a
student. The jury specifically found that the offenses were ―separate acts‖ in that each count ―was an act
that does not arise from the same continuous and uninterrupted conduct as another act.‖ On appeal,
defendant raised a Blakely-based challenge to the imposition of consecutive sentences and the court‘s
Miller/Bucholz recalculation of his criminal history. Held: Affirmed. [1] Under State v. Tanner, 210 Or
App 70 (2006), consecutive-sentence findings are not subject to Blakely. [2] The jury‘s finding of
separate criminal episodes defeated his merger argument and his challenge to the court‘s calculation of
his criminal-history score.

         State v. Mallory, 213 Or App 392, 162 P3d 297 (2007), rev den, 344 Or 110 (2008). After
defendant pleaded guilty to multiple offenses within the scope of ORS 137.717 (RePO), the sentencing
court found that she had committed several of the offenses during separate criminal episodes and, per
under ORS 137.717(5)(a), used the first offenses as predicate convictions to impose 13-month RePO
sentences on her later-committed offenses. Defendant appealed, contending that she was entitled under
Blakely to a jury trial on that issue. Held: Affirmed. [1] The ―separate criminal episode‖ finding does
not categorically fall into ―the fact of a prior conviction‖ exception to the Blakely rule. [2] Determining
whether two offenses are based on the ―same criminal episode,‖ as defined in ORS 131.505(4),
―involves a relational examination of time, place, and circumstance‖ and that may not necessarily be
decided by the pleas or verdicts. [3] Shepard v. United States permits the sentencing court to make a
determination that prior convictions are based on separate criminal episodes if that determination can be
made based on facts in the record that necessarily were resolved by the plea or verdict. [4] In this case,
when defendant pleaded guilty to counts that alleged different dates, she thereby ―admitted sufficient
facts to establish that those offenses involved separate criminal episodes.‖

         State v. Burns, 213 Or App 38, 159 P3d 1208 (2007), rev allowed, 344 Or 280 (2008).
Sentencing court erred under Blakely when it departed upward based on its own finding that defendant
was on post-prison supervision at the time he committed the crime. Although defendant had admitted
that fact, he still was entitled to a jury finding regarding ―the ‗malevolent quality‘ of the defendant and
the failure of supervision to serve as an effective deterrent.‖ That is a factual determination, not a legal
conclusion to be drawn from the bare fact of being on supervision.

        State v. Skanes, 212 Or App 169, 157 P3d 303 (2007). Defendant entered a no-contest plea, and
the court imposed a dispositional departure based on defendant‘s persistent involvement in similar
offenses, OAR 213-008-0002(1)(b)(D). Although defendant‘s attorney was aware of Blakely, he did not
object to the sentence on the ground that defendant was entitled to jury findings to support the departure.
76

Held: Affirmed. Defendant waived his right to a jury trial on the substantive crime by entering a no-
contest plea, and he did not request a jury for sentencing. His claim that he was entitled to jury at
sentencing is not plain error.

        State v. Soto-Nunez, 211 Or App 545, 155 P3d 96, rev den, 343 Or 206 (2007). 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 under ORS 137.750 on which it ordered that defendant is ineligible for temporary
leave and other forms of sentence modification.

        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).
        See also State v. Magana, 212 Or App 553, 159 P3d 1163, rev den, 343 Or 363 (2007); State v.
Carson, 211 Or App 606, 156 P3d 71 (2007) (per curiam) (Tanner ―applies with equal force in the
context of a challenge to consecutive sentences imposed pursuant to ORS 137.123(2)‖).

        Sentencing: constitutional issues—proportionality objections

        State v. Wheeler, 343 Or 652, 175 P3d 438 (2007). [1] ORS 137.719, which prescribes a
presumptive life sentence for a third conviction for certain sexual offenses, is not facially
disproportionate. Although reasonable people could argue about whether repeat sexual offenses should
be treated differently from crimes of other types, the legislature‘s decision to enact ORS 137.719 was
not unreasonable. [2] Application of ORS 137.719 to defendant was not disproportionate based on
defendant‘s assertion that the offenses did not result in any permanent physical injury to the victims.
Defendant‘s sentences bear a sufficient relationship to the gravity of the crimes of which he was
convicted and his prior felony convictions.

         State v. Buck, 217 Or App 363, 174 P3d 1106 (2007). The sentencing court erred by refusing to
impose the mandated 75-month sentence on defendant, a 36-year-old man who sexually abused a 13-
year-old girl. That sentence was not disproportionate under Art. I, § 16. Although the Court of Appeals
rejected the state‘s argument that the disproportionality question should focus on only the legal elements
of the crime, and not the particular conduct at issue, the court agreed that the circumstances in this case
do not justify a conclusion that the Measure 11 sentence would violate Art. I, § 16. Defendant was an
adult who had been entrusted with responsibility for a 13-year-old girl; within minutes, he sexually
abused her, and continued to touch her even after she told him that it made her uncomfortable. Finally,
the victim suffered lasting emotional distress as a result of the crime. The sentence would not shock the
moral sense of all reasonable people.

        State v. Rodriguez, 217 Or App 351, 174 P3d 1100 (2007). The sentencing court erred by
refusing to impose the mandatory 75-month Measure 11 sentence on a 24-year-old female defendant for
sexual abuse committed on a 12-year-old boy. That sentence for defendant‘s conduct does not shock the
conscience, and was not grossly disproportionate to the offense. In view of the relationship between
defendant and the victim—i.e., he was a ―prototypical at-risk youth,‖ and she was in a position of trust
and responsibility—there ―can be no doubt‖ that the sentence would not shock the moral sense of all
reasonable people, and did not violate Art. I, § 16.

        Sentencing: constitutional issues—other

        State v. Sanders, 343 Or 35, 163 P3d 607 (2007). The requirement in ORS 137.076 that a
                                                                                                     77

person convicted of a felony must submit to a blood or buccal sample does not violate Art I, § 9, or the
Fourth Amendment.
       See also State v. Brown, 212 Or App 164, 157 P3d 301, rev den, 343 Or 223 (2007).
ORS 137.076, which requires a DNA sampling for persons convicted of a felony or some
misdemeanors, does not violate Art I, § 9, or the Fourth Amendment.

       State v. Myers, __ Or App __, __ P3d __ (March 19, 2008). The ―true life‖ option for
aggravated murder under ORS 163.105 does not violate Art I, § 40, which provides that the sentence for
aggravated murder shall be death or ―life imprisonment with minimum sentence as provided by law.‖

        State v. Terry, 214 Or App 56, 162 P3d 372 (2007). ORS 809.235(1)(b) does not violate Art I,
§ 20, by requiring a permanent revocation of driving privileges upon a third conviction for DUII under
ORS 813.010, despite defendant‘s contention that it discriminates unfairly on the basis of residence (by
excluding residents of other states). ―The statute distinguishes on the basis of where the person
committed the offense, not on the basis of where the person who committed the offense resides.‖
Moreover, because defendant committed the offense on which the revocation is based, he is responsible
for placing himself in the disadvantaged class.

        State v. Forrest, 213 Or App 151, 159 P3d 1286 (2007). ORS 813.012(2), which requires all
previous DUII convictions to be counted in a defendant‘s criminal-history score, does not violate
double-jeopardy principles on the grounds that it imposes an additional punishment for defendant‘s
prior convictions or by enhancing defendant‘s criminal-history score based on conduct that also
elevated the seriousness of the current offense (following State v. McCoin, 190 Or App 532 (2003)).

       State v. Gonzalez, 212 Or App 1, 157 P3d 266 (2007). A probation-revocation hearing is not a
―criminal prosecution‖ within the meaning of the Sixth Amendment. Consequently, the rule in
Crawford v. Washington ―does not preclude the admission of hearsay testimony in the absence of an
opportunity to cross-examine the declarant.‖
       Note: The court did not address defendant‘s alternative argument under the Due Process Clause.

        Sentencing: crime-seriousness ranking

         State v. Rutley, 343 Or 368, 171 P3d 361 (2007). [1] The statute that defines the crime of DCS
within 1,000 feet of a school is outside of the criminal code, and thus, under ORS 161.105(1)(b), does
not require a culpable mental state because it ―clearly indicates a legislative intent to dispense with any
culpable mental state requirement for the offense or for any material element thereof.‖ [2] The
allegation that defendant committed the crime ―knowingly‖ did not require the state to prove
defendant‘s knowledge with regard to distance. At best, that allegation was ambiguous as to whether
the culpable mental state was intended to apply only to the delivery or to every circumstance in the
charge. ―Our disposition of the issue should not be read as accepting the Court of Appeals‘ proposition
that the state may be bound by the words of an indictment to prove a particular mental state respecting
an offense, even if the legislature did not intend to require such proof.‖

         State v. Travalini, 215 Or App 226, 168 P3d 1159 (2007), rev den, 344 Or 110 (2008). The
state did not have to prove a mental state as to the offense-subcategory factor alleging that the arson
―represented a threat of serious physical injury.‖ An offense subcategory fact is not an ―element‖ of the
substantive offense. Thus, ORS 161.095(2) and 161.115(1), which provide that a crime requires a
culpable mental state with regard to any element ―that necessarily requires a culpable mental state,‖do
not require proof of a culpable mental state as to offense-subcategory facts.
78

        State v. Conklin/Betts/Land, 214 Or App 80, 162 P3d 364, mod on recon, 215 Or App 293, 168
P3d 1158 (2007). The trial court erred in denying defendant‘s motion for judgment of acquittal on the
―within 1000 feet of a school‖ element of the defendants‘ DCS charges. Although the park in which
defendants committed their DCS offenses is posted with signs stating that a school is within 1000 feet,
an officer testified that ―Sonshine School‖ is in a church within 1000 feet of the location of the delivery,
and he testified that ―I know it‘s a school primarily attended by minors,‖ no evidence was presented
from which the jurors would find that the school is ―an elementary, secondary, or career school‖ within
the scope of ORS 475.999(1) (2003).
        See also State v. Clelland, 214 Or App 151, 162 P3d 1081 (2007) (same).

         State v. Rodriguez-Barrera, 213 Or App 56, 159 P3d 1201, rev den, 343 Or 224 (2007). The
police stopped defendant‘s vehicle as he drove within 1000 feet of a school, and a search discovered
methamphetamine packaged for sale. Held: Defendant correctly was found guilty of DCS within 1000
feet of a school, ORS 475.904(1). The state did not have to prove in addition that he intended an actual
delivery within that school zone.

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

        State v. Bolf, 217 Or App 606, 176 P3d 1287 (2008). Once a probationary sentence is executed,
OAR 213-010-0002 limits revocation sanctions to those that are allowed by the gridblock used at the
time of sentencing, even if that gridblock was determined based on an erroneous understanding of the
defendant‘s criminal history.

        State v. Norman, 216 Or App 475, 174 P3d 598 (2007). The sentencing court erroneously
concluded that one attempted assault—which defendant committed in the course of trying to run several
officers off the road—was a ―separate criminal episode‖ from the first two attempted assaults, and that it
therefore could be used in calculating defendant‘s criminal-history score under Miller/Bucholz. The
offenses were simply too closely entwined to be separate criminal episodes; they occurred within a
matter of seconds and within 100 yards of each other, and were motivated by defendant‘s single
objective to avoid apprehension.

        State v. Kayfes, 213 Or App 543, 162 P3d 308, rev den, 343 Or 390 (2007). Defendant, a
former middle-school teacher and coach, was convicted of numerous sexual offenses involving a
student. The jury specifically found that the offenses were ―separate acts‖ in that each count ―was an act
that does not arise from the same continuous and uninterrupted conduct as another act.‖ On appeal,
defendant raised a Blakely-based challenge to the imposition of consecutive sentences and the court‘s
Miller/Bucholz recalculation of his criminal history. Held: Affirmed. The court‘s calculation of
defendant‘s criminal-history score was proper based on the jury‘s findings.

        Sentencing: term of post-prison supervision

        State v. Hollinquest, 212 Or App 488, 157 P3d 96, rev den, 343 Or 206 (2007) (per curiam).
The court imposed on defendant‘s conviction for first-degree manslaughter a 240-month sentence (by
upward departure) with a 36-month term of post-prison supervision. Held: Reversed and remanded.
Because the 240-month term is the statutory maximum, the court committed plain error by imposing, in
addition, the 36-month term of post-prison supervision.

      State v. Johnson, 212 Or App 135, 157 P3d 295 (2007) (per curiam). The sentencing court
committed plain error by imposing on defendant‘s conviction for first-degree sexual abuse a 20-year
                                                                                                  79

term of post-prison supervision per ORS 144.103 (the correct term is only 10 years).

       Sentencing: probationary dispositions

       State v. Gonzalez, 212 Or App 1, 157 P3d 266 (2007). A probation-revocation hearing is not a
―criminal prosecution‖ within the meaning of the Sixth Amendment. Consequently, the rule in
Crawford v. Washington ―does not preclude the admission of hearsay testimony in the absence of an
opportunity to cross-examine the declarant.‖
       Note: The court did not address defendant‘s alternative argument under the Due Process Clause.

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

         State v. Bray, 342 Or 711, 160 P3d 983 (2007). Defendant was convicted on multiple counts of
encouraging child sexual abuse. At sentencing, the court departed upward based on findings of three
aggravating factors, including that defendant was persistently involved in similar offenses, OAR 213-
008-0002(2)(b)(D), and found that any factor standing alone would support the departures. On appeal,
the state argued that the ―persistent involvement‖ finding was permissible under the ―fact of a prior
conviction‖ exception in Blakely. Held: Reversed and remanded. [1] Because the sentencing court
found any factor was sufficient, the appellate court could affirm if any of the factors was legally
permissible. [2] Under the rule, ―[t]he trier of fact must infer from the number and frequency of those
prior convictions whether the defendant‘s involvement in similar offenses is sufficiently continuous ore
recurring to say that it is ‗persistent.‘‖ Thus, the ―persistent involvement‖ factor ―presents a factual
issue that, under Apprendi and Blakely, a defendant may insist that a jury find beyond a reasonable
doubt.‖ [3] Although a reasonable juror could find ―persistent involvement‖ based on defendant‘s
criminal record, the error was not harmless.

        State v. Gallegos, 217 Or App 248, 174 P3d 1086 (2007). [1] The non-exclusive list of
aggravating factors in OAR 213-008-0002(1)(b) does not violate due process. Although the scope of the
potential aggravating factors under the administrative rule is ―imprecise,‖ it nonetheless provides a
―comprehensible normative standard‖ by listing the types of facts that are permissible aggravating
factors. Moreover, appellate decisions sustaining the imposition of departure sentences based on non-
enumerated ―aggravating‖ factors have amplified and refined the contours of that standard. Because
those cases existed when defendant committed his crime, his facial challenge to OAR 213-008-
0002(1)(b) fails. [2] Defendant had notice of the potential ―on supervision‖ aggravating factor.
OAR 213-008-0002(1)(b) expressly states that the list of aggravating factors is not exclusive, and
previous appellate cases had approved of the ―on supervision‖ factor, he was on notice of that factor.
An ordinary citizen is presumed to know the law, if it can be ascertained by resort to published sources.

         State v. Schenewerk, 217 Or App 243, 174 P3d 1117 (2007). [1] No separate finding of
―separate malevolent factor‖ is required for a departure based on persistent involvement. Under State v.
Bray, 342 Or 711 (2007), the factfinder is simply to determine, from the ―number and frequency‖ of
defendant‘s prior convictions for similar offenses whether the defendant‘s involvement in those offenses
was so ―continuous or recurring‖ as to be ―persistent.‖ The fact of ―persistent involvement‖ can be
inferred solely from the number of prior convictions. [2] ―Persistent involvement‖ is not
unconstitutionally vague. Even assuming that the scope of the term ―persistent involvement‖ is unclear
on its face, its meaning can be readily ascertained from published substantive law.

        State v. Crocker, 217 Or App 238, 174 P3d 1129 (2007). A person who clearly falls within a
prohibition cannot successfully challenge it for vagueness. Even if there were some lack of precision in
80

the aggravating factors—prior criminal sanctions have not deterred defendant, and prior institutional and
disciplinary violations—defendant‘s conduct (which included numerous felony convictions even while
serving prison sentences, and 49 adjudicated prison disciplinary violations) indisputably fell within their
―core.‖ Thus, he cannot plausibly assert that he lacked notice of how the departure factors apply to him.

         State v. Toth, 213 Or App 505, 162 P3d 317 (2007). At a sentencing hearing held ORS 136.760
et seq., the jury found that, as alleged, defendant was persistently involved in similar offenses. Based on
that finding, the court imposed an upward-departure sentence. For the first time on appeal, defendant
contended that the court‘s instruction on that factor, which parroted the rule, OAR 213-008-
0002(2)(b)(D), was insufficient for not including the ―malevolent quality‖ consideration discussed in
appellate decisions. Held: Affirmed. [1] Although the ―persistent involvement‖ factor entails more than
a finding of prior convictions, it does not necessarily follow that the jury must be instructed on the
judicial gloss given to that factor. ―The word ‗persistent,‘ after all, is commonly understood to
connote—without further elaboration—‗continuing in a course of action without regard to opposition or
previous failure.‘‖ [2] The court did not commit plain error by instructing the jurors in the language of
the rule.

         State v. Burns, 213 Or App 38, 159 P3d 1208 (2007), rev allowed, 344 Or 280 (2008).
Sentencing court erred under Blakely when it departed upward based on its own finding that defendant
was on post-prison supervision at the time of the crime. Although defendant admitted that fact, he was
entitled to a jury finding regarding ―the ‗malevolent quality‘ of the defendant and the failure of
supervision to serve as an effective deterrent.‖ That is a factual determination, not a legal conclusion to
be drawn from the bare fact of being on supervision.

        State v. Skanes, 212 Or App 169, 157 P3d 303 (2007). Defendant entered a no-contest plea, and
the court imposed a dispositional departure based on defendant‘s persistent involvement in similar
offenses, OAR 213-008-0002(1)(b)(D). Although defendant‘s attorney was aware of Blakely, he did not
object to the sentence on the ground that defendant was entitled to jury findings to support the departure.
Held: Affirmed. [1] Defendant waived his right to a jury trial on the substantive crime by entering a no-
contest plea, and he did not request a jury for sentencing. [2] The ―persistent involvement‖ factor does
not require an express finding of a ―malevolent quality.‖

        Sentencing: departures—mitigating factors

       State v. White, 217 Or App 214, 175 P3d 504 (2007). Under State v. Crescencio-Paz, 196 Or
App 655 (2004), rev den, 339 Or 230 (2005), jury findings are not required for facts that render a
defendant ineligible for a downward departure under ORS 137.712.

        Sentencing: consecutive sentences

        State v. Ice, 343 Or 248, 170 P3d 1049 (2007). Under Blakely, the findings necessary to impose
consecutive sentences under ORS 137.123 must be made by a jury, not by a judge. The Sixth
Amendment right to trial by jury, as interpreted in Blakely and other United States Supreme Court cases,
requires jury findings on both the issue of whether individual counts arose from ―the same continuous
and uninterrupted course of conduct‖ (in which case consecutive sentences would be authorized under
ORS 137.123(2)), and the issue of whether individual counts arising from the same continuous and
uninterrupted course of conduct can be sentenced consecutively based on the presence of one or more of
the consecutive-sentence factors set out in ORS 137.123(5)(a) and (b).

        State v. Banks, __ Or App __, __ P3d __ (March 19, 2008). Defendant‘s unpreserved challenge
                                                                                                       81

to the imposition of consecutive sentences based on State v. Ice, 343 Or 248 (2007), was reviewable as a
claim of ―plain error.‖ Because of the gravity of the error, and because it was highly unlikely that
defendant made a strategic choice to forgo an objection (and because the trial court likely would have
rejected it based on the law at the time), the court exercised its discretion to review the claim on appeal.

        State v. Smith, 218 Or App 278, __ P3d __ (2008). The sentencing court committed ―plain
error‖ by imposing consecutive sentences under ORS 137.123(5)(b) (risk of loss, injury or harm to a
different victim) in the absence of jury findings; nevertheless, the appellate court declined to review it
because there was no legitimate debate that the UUV involved harm to one victim, and defendant‘s
possession of an altered key created a risk of harm to other victims.

        State v. Cone, 218 Or App 273, __ P3d __ (2008). Although the order imposing consecutive
sentences under ORS 137.123(5)(b) was ―plain error‖ in light of the later decision in State v. Ice, the
Court of Appeals declined to exercise its discretion to correct the error because ―[t]here can be no
doubt‖ that the harm caused by the assault (physical injury to the victim‘s person) was qualitatively
different and greater than the harm caused by the burglary (unlawful entry onto the victim‘s property).

        State v. Rettman, 218 Or App 179, __ P3d __ (2008). [1] Defendant‘s convictions for assault
(by cutting the victim‘s wrist) and attempted murder (by cutting the wrist) involved precisely the same
harm. Thus, consecutive sentences were not authorized by ORS 137.123(5)(b) (different harms to
victim). [2] Because the sentencing court did not rely on a theory that the attempted murder included
the act of delaying treatment for the child thus creating a greater risk of harm, the Court of Appeals
could not affirm on that ground.

       State v. Loftin, 218 Or App 160, __ P3d __ (2008). Without a jury finding that the crime for
which the consecutive sentence was sought was not merely incidental to a more serious crime, the court
erroneously imposed consecutive sentences under ORS 137.123(5)(a). The mere fact that crimes are
―equally serious‖ does not justify consecutive sentences under that provision.

        State v. Walch, 218 Or App 86, __ P3d __ (2008). [1] Court refused to consider defendant‘s
unpreserved claim that the trial court did not clearly instruct the jurors that, to make affirmative findings
on any fact allowing consecutive sentences, they had to make the finding beyond a reasonable doubt.
Because the trial court‘s preliminary instructions informed the jurors that the state had the ―beyond a
reasonable doubt‖ burden, the trial court did not commit plain error by failing to give a more specific
instruction later. [2] In addition, the Court of Appeals relied on State v. Sawatzky, 339 Or 689 (2005), in
rejecting defendant‘s unpreserved assertion that the state was required to allege the consecutive-sentence
enhancement facts in the indictment, stating: ―[W]e see no reason, in light of Ice, to draw any distinction
between [the departure factors addressed in Sawatzky] and the facts supporting consecutive sentences.‖

        State v. Wilson, 216 Or App 226, 173 P3d 150 (2007), rev den, 344 Or __ (2008). The
sentencing court erroneously ordered the attempted-aggravated-murder sentences to be served
consecutively to the sentence on the first-degree kidnapping based on its finding that it caused a ―greater
or qualitatively different injury‖ to the victim than that caused by the kidnapping. Under State v. Ice,
343 Or 248 (2007), that question was required to be determined by the jury, not by the court.

        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).
        See also State v. Kayfes, 213 Or App 543, 162 P3d 308, rev den, 343 Or 390 (2007); State v.
82

Magana, 212 Or App 553, 159 P3d 1163, rev den, 343 Or 363 (2007); State v. Carson, 211 Or App
606, 156 P3d 71 (2007) (per curiam) (Tanner ―applies with equal force in the context of a challenge to
consecutive sentences imposed pursuant to ORS 137.123(2)‖).
       Note: In light of State v. Ice, supra, these decisions no longer have precedential value.

        Sentencing: statutory sentences—murder (ORS 163.115)
        See ―Sentencing: merger,‖ below.

       State v. Myers, __ Or App __, __ P3d __ (March 19, 2008). The ―true life‖ option for
aggravated murder under ORS 163.105 does not violate Art I, § 40, which provides that the sentence for
aggravated murder shall be death or ―life imprisonment with minimum sentence as provided by law.‖

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

        State v. Casiano, 214 Or App 509, 166 P3d 599 (2007). The sentencing court committed ―plain
error‖ by applying ORS 137.635 based on a prior conviction that was entered after defendant‘s
commission of the offense in this case, contrary to State v. Allison, 143 Or App 241, rev den 324 Or 487
(1996).

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

        State v. Jacob, 344 Or 181, __ P3d __ (2008). The sentencing court refused to impose the
30-year minimum sentence mandated by ORS 161.610(4)(c) on defendant‘s third conviction for a
firearm offense, ruling that defendant‘s first firearm sentence was invalid under State v. Wedge even
though he had not previously challenged that sentence on appeal, in a post-conviction proceeding, or at
his second sentencing for a firearm offense. Held: Reversed with directions to impose sentence.
[1] Prior ―punishment‖ under ORS 161.610 authorizes the greater sentence based on a new firearm
offense. [2] Defendant cannot collaterally attack the validity of the earlier punishment.

        Sentencing: statutory sentences—Measure 11 (ORS 137.700)

         State v. Buck, 217 Or App 363, 174 P3d 1106 (2007). The sentencing court erred by refusing to
impose the mandated 75-month sentence on defendant, a 36-year-old man who sexually abused a 13-
year-old girl. That sentence was not disproportionate under Art. I, § 16. Although the Court of Appeals
rejected the state‘s argument that the disproportionality question should focus on only the legal elements
of the crime, and not the particular conduct at issue, the court agreed that the circumstances in this case
do not justify a conclusion that the Measure 11 sentence would violate Art. I, § 16. Defendant was an
adult who had been entrusted with responsibility for a 13-year-old girl; within minutes, he sexually
abused her, and continued to touch her even after she told him that it made her uncomfortable. Finally,
the victim suffered lasting emotional distress as a result of the crime. The sentence would not shock the
moral sense of all reasonable people.

        State v. Rodriguez, 217 Or App 351, 174 P3d 1100 (2007). The sentencing court erred by
refusing to impose the mandatory 75-month Measure 11 sentence on a 24-year-old female defendant for
sexual abuse committed on a 12-year-old boy. That sentence for defendant‘s conduct does not shock the
conscience, and was not grossly disproportionate to the offense. In view of the relationship between
defendant and the victim—i.e., he was a ―prototypical at-risk youth,‖ and she was in a position of trust
and responsibility—there ―can be no doubt‖ that the sentence would not shock the moral sense of all
reasonable people, and did not violate Art. I, § 16.
                                                                                                  83

       State v. White, 217 Or App 214, 175 P3d 504 (2007). Under State v. Crescencio-Paz, 196 Or
App 655 (2004), rev den, 339 Or 230 (2005), jury findings are not required for facts that render a
defendant ineligible for a downward departure under ORS 137.712.

        State v. Bowden, 217 Or App 133, 174 P3d 1073 (2007). Under ORS 137.712(5), if a person
sentenced to a probationary term violates a term of probation ―by committing a new crime,‖ the court
―shall‖ revoke the probation and impose the presumptive sentence under the sentencing guidelines. A
juvenile ―commits a new crime‖ under ORS 137.712(5) by engaging in conduct that would constitute a
crime if committed by an adult. Although a juvenile adjudication is not a criminal conviction, the focus
of the phrase ―committed a new crime‖ in ORS 137.712(5) is on the conduct, rather than the legal
consequences available for that conduct.

         State v. Arnold, 214 Or App 201, 164 P3d 334 (2007). Defendant was convicted at trial of
second-degree robbery based on his aiding and abetting a robbery by driving and waiting in the getaway
car while two other men robbed the victim at gunpoint. The sentencing court imposed the mandatory
Measure 11 sentence, rejecting defendant‘s argument that the court should impose a downward
departure under ORS 137.712. The sentencing court concluded that defendant was ineligible for a
departure because of ORS 137.712(2)(d)(C), which permits a departure only where, ―if the defendant
represented by words or conduct that the defendant was armed with a deadly weapon, the representation
did not reasonably put the victim in fear of imminent physical injury‖; the court rejected defendant‘s
argument that that factor did not apply to him because he personally did not make any representation
that he was armed. Held: Sentence vacated and reversed. The factor in ORS 137.712(2)(d)(C)
precludes a downward departure ―if the defendant represented by words or conduct that the defendant
was armed with a deadly weapon, [and] the representation did not reasonably put the victim in fear of
imminent physical injury.‖ Under that provision, the sentencing court must consider whether the
representation reasonably put the victim in fear of imminent injury only if the defendant personally
represented by words or conduct that he was armed with a deadly weapon. The sentencing court
erroneously concluded that defendant was ineligible for a downward departure on the ground that
defendant‘s accomplice had represented that he had a weapon and thereby put the victim in reasonable
fear of imminent injury.

        State v. Ivie, 213 Or App 198, 159 P3d 1257 (2007). Defendant pleaded guilty to second-degree
assault and the parties stipulated to a departure pursuant to ORS 137.712 to a probationary sentence but
further agreed that if defendant violated the probation, the court on revocation would impose a 70-month
term as the ―presumptive‖ sentence. The court imposed that sentence without making findings under
ORS 137.712 or 137.750. Later, upon revocation, defendant argued that ORS 137.712(5) barred a
sentence longer than 38 months. The court disagreed and imposed the 70-month sentence and denied
any eligibility for early release based on ORS 137.700(1). Held: Reversed and remanded. [1] In
interpreting the parties‘ plea agreement, ―commercial contract principles apply‖—―the construction of a
contract is a question of law, but when the contract is ambiguous, extrinsic evidence may be used to
resolve the ambiguity, and determination of a the parties‘ intent is a question of fact.‖ The record
supported the sentencing court‘s finding that defendant had stipulated to a 70-month term on revocation.
[2] Because 70-month term was imposed pursuant to stipulation, ORS 137.222(2)(d) barred appellate
review. But because the record does not show that defendant stipulated to the no-release order, his
challenge to that term is reviewable. [3] The sentencing court erred in denying eligibility for release,
because defendant was not sentenced pursuant to ORS 137.700(1) and the court did not make findings
under ORS 137.750 to support that order.
84

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

         State v. Mallory, 213 Or App 392, 162 P3d 297 (2007), rev den, 344 Or 110 (2008). After
defendant pleaded guilty to multiple offenses within the scope of ORS 137.717 (RePO), the sentencing
court found that she had committed several of the offenses during separate criminal episodes and, per
under ORS 137.717(5)(a), used the first offenses as predicate convictions to impose 13-month RePO
sentences on her later-committed offenses. Defendant appealed, contending that she was entitled under
Blakely to a jury trial on that issue. Held: Affirmed. [1] The ―separate criminal episode‖ finding does
not categorically fall into ―the fact of a prior conviction‖ exception to the Blakely rule. [2] Determining
whether two offenses are based on the ―same criminal episode,‖ as defined in ORS 131.505(4),
―involves a relational examination of time, place, and circumstance‖ and that may not necessarily be
decided by the pleas or verdicts. [3] Shepard v. United States permits the sentencing court to make a
determination that prior convictions are based on separate criminal episodes if that determination can be
made based on facts in the record that necessarily were resolved by the plea or verdict. [4] In this case,
when defendant pleaded guilty to counts that alleged different dates, she thereby ―admitted sufficient
facts to establish that those offenses involved separate criminal episodes.‖

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

         State v. Hammond, __ Or App __, __ P3d __ (March 19, 2008). Defendant‘s act of filing of an
ORS 137.754 motion after the execution of sentence in an attempt to convince the sentencing court to
make the required findings of ―substantial and compelling reasons‖ to support its order denying
eligibility for alternative sentencing programs did not ―retroactively‖ preserve his claim for appeal.

        State v. Casiano, 214 Or App 509, 166 P3d 599 (2007). The sentencing court committed ―plain
error‖ by applying ORS 137.635 based on a prior conviction that was entered after defendant‘s
commission of the offense in this case. The order denying defendant eligibility for leave cannot be
affirmed on the ground that the sentencing court could have exercised its discretion to deny eligibility
for leave pursuant to ORS 137.750 because the record did not show that, had the sentencing court
realized its error regarding ORS 137.635, it would have exercised its discretion under ORS 137.750.

        State v. Ivie, 213 Or App 198, 159 P3d 1257 (2007). Defendant pleaded guilty to second-degree
assault and the parties stipulated to a departure pursuant to ORS 137.712 to a probationary sentence but
further agreed that if defendant violated the probation, the court on revocation would impose a 70-month
term as the ―presumptive‖ sentence. The court imposed that sentence without making findings under
ORS 137.712 or 137.750. Later, upon revocation, defendant argued that ORS 137.712(5) barred a
sentence longer than 38 months. The court disagreed and imposed the 70-month sentence and denied
any eligibility for early release based on ORS 137.700(1). Held: Reversed and remanded. [1] In
interpreting the parties‘ plea agreement, ―commercial contract principles apply‖—―the construction of a
contract is a question of law, but when the contract is ambiguous, extrinsic evidence may be used to
resolve the ambiguity, and determination of a the parties‘ intent is a question of fact.‖ The record
supported the sentencing court‘s finding that defendant had stipulated to a 70-month term on revocation.
[2] But the court erred in denying eligibility for release, because defendant did not stipulate to that term,
he was not sentenced pursuant to ORS 137.700(1), and the court did not make findings under
ORS 137.750 to support that order.

        State v. Soto-Nunez, 211 Or App 545, 155 P3d 96, rev den, 343 Or 206 (2007). [1] 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.‖ [2] In
                                                                                                     85

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.

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

        State v. Wheeler, 343 Or 652, 175 P3d 438 (2007). [1] ORS 137.719, which prescribes a
presumptive life sentence for a third conviction for certain sexual offenses, is not facially
disproportionate. Although reasonable people could argue about whether repeat sexual offenses should
be treated differently from crimes of other types, the legislature‘s decision to enact ORS 137.719 was
not unreasonable. [2] Application of ORS 137.719 to defendant was not disproportionate based on
defendant‘s claim that the offenses did not result in any permanent physical injury to the victims.
Defendant‘s sentences bear a sufficient relationship to the gravity of the crimes and his prior felony
convictions.

        Sentencing: statutory sentences—other prior-conviction offenses
        See also ―DUII: sentencing‖ and ―DUII: felony DUII,‖ above.

         State v. Hess, 342 Or 647, 159 P3d 309 (2007). Defendant was charged with felony public
indecency, ORS 163.465. Prior to trial, he stipulated to his prior public-indecency convictions and the
court, over the state‘s objection, removed the prior-convictions element from jury. The state appealed.
Held: Affirmed. [1] The fact that the legislature has expressly provided a stipulation process for other
crimes (e.g., DUII and aggravated murder) but did not do so for this offense does not indicate a
legislative intent not to have such a process apply here. [2] Because defendant‘s ―judicial admission
unconditionally resolved the prior convictions issue in the state‘s favor and left only a sentencing issue
for the court,‖ the prior conviction became irrelevant in the guilt phase and the trial court properly
excluded it.
         Note: The court did not resolve with the prior-conviction allegation is ―a sentencing factor
rather than an element of the crime.‖ It is not clear whether this ruling applies to any element other than
a prior-conviction allegation that is used to enhance the seriousness of the offense for sentencing
purposes.

         State v. Cervantes-Oropeza, 215 Or App 518, 170 P3d 1114 (2007). Defendant appealed from a
judgment imposing sentence on his conviction for felony DUII, arguing that the sentencing court had
erroneously considered his prior DUII convictions (which were based on guilty pleas) in determining his
criminal-history score. He asserted that the prior convictions were invalid on the ground that the state
had failed to prove that he had executed written jury waivers in those cases. Held: Affirmed. Although
Art I, § 11, requires a written waiver in the event that the defendant elects to waive trial by jury ―and
consent to be tried by the judge of the court alone,‖ the constitutional text, the pertinent case law, and
the historical circumstances of the constitutional provision demonstrate that that provision does not
require a written waiver of jury trial if the defendant seeks to plead guilty.

         State v. Forrest, 213 Or App 151, 159 P3d 1286 (2007). In prosecution for felony DUII, the
trial court properly denied defendant‘s motion to exclude evidence of his prior DUII conviction as
uncounseled. Although the court in the prior proceeding accepted defendant‘s waiver of counsel and
guilty plea without an express ―pitfalls‖ colloquy, the written plea petition that defendant had executed
―sufficed to inform defendant of the risks of self-representation,‖ and from that the trial court properly
found that ―defendant appreciated the risks of proceeding without advice of counsel and knowingly
waived his right to counsel.‖
86

       Sentencing: revocation of probation

       State v. Hammond, __ Or App __, __ P3d __ (March 19, 2008). Because the Oregon Evidence
Code does not apply to probation-violation proceedings, and because no other provision precludes
consideration of polygraph results in a probation-violation proceeding, the circuit court properly
considered defendant‘s deceptive polygraph result in revoking probation based on its conclusion that
defendant had lied to his probation officer.

        State v. Bolf, 217 Or App 606, 176 P3d 1287 (2008). Once a probationary sentence is executed,
OAR 213-010-0002 limits revocation sanctions to those that are authorized by the gridblock used at the
time of sentencing, even if that gridblock was determined based on an erroneous understanding of the
defendant‘s criminal history.

        State v. Bowden, 217 Or App 133, 174 P3d 1073 (2007). Under ORS 137.712(5), if a person
sentenced to a probationary term violates a term of probation ―by committing a new crime,‖ the court
―shall‖ revoke the probation and impose the presumptive sentence under the sentencing guidelines. A
juvenile ―commits a new crime‖ under ORS 137.712(5) by engaging in conduct that would constitute a
crime if committed by an adult. Although a juvenile adjudication is not a criminal conviction, the focus
of the phrase ―committed a new crime‖ in ORS 137.712(5) is on the conduct, rather than the legal
consequences available for that conduct.

         State v. Ivie, 213 Or App 198, 159 P3d 1257 (2007). Defendant pleaded guilty to second-degree
assault and the parties stipulated to a departure pursuant to ORS 137.712 to a probationary sentence but
further agreed that if defendant violated the probation, the court on revocation would impose a 70-month
term as the ―presumptive‖ sentence. The court imposed that sentence without making findings under
ORS 137.712 or 137.750. Later, upon revocation, defendant argued that ORS 137.712(5) barred a
sentence longer than 38 months. The court disagreed and imposed the 70-month sentence and denied
any eligibility for early release based on ORS 137.700(1). Held: Reversed and remanded. [1] In
interpreting the parties‘ plea agreement, ―commercial contract principles apply‖—―the construction of a
contract is a question of law, but when the contract is ambiguous, extrinsic evidence may be used to
resolve the ambiguity, and determination of a the parties‘ intent is a question of fact.‖ The record
supported the sentencing court‘s finding that defendant had stipulated to a 70-month term on revocation.
[2] But the sentencing court erred in denying eligibility for release, because defendant did not stipulate
to that term, he was not sentenced pursuant to ORS 137.700(1), and the court did not make findings
under ORS 137.750 to support that order.

        State v. Gonzalez, 212 Or App 1, 157 P3d 266 (2007). A probation-revocation hearing is not a
―criminal prosecution‖ within the meaning of the Sixth Amendment. Consequently, the rule in
Crawford ―does not preclude the admission of hearsay testimony in the absence of an opportunity to
cross-examine the declarant.‖
        Note: The court did not address defendant‘s alternative argument under the Due Process Clause.

       Sentencing: merger

         State v. Nelson, __ Or App __, __ P3d __ (March 19, 2008). The trial court committed plain
error by not merging defendant‘s convictions for prostitution in violation of ORS 161.405 and for
unlawful prostitution procurement activities under Portland City Code § 14A.040.050. Unlawful
prostitution procurement activities encompasses acts that would constitute attempted prostitution; thus,
the failure to merge the inchoate crime into the completed crime was error under ORS 161.485(3) (―[a]
person shall not be convicted on the basis of the same course of conduct of both an actual commission
                                                                                                  87

of an offense and an attempt to commit that offense.‖)

        State v. White, 217 Or App 214, 175 P3d 504 (2007). Defendant‘s two convictions for robbery
under ORS 164.405(1)(a) (the defendant committed robbery and ―represent[ed] that [he was] armed
with what purports to be a dangerous or deadly weapon‖) and ORS 164.405(1)(b) (commission of
robbery while ―aided by another person present‖) do not merge because they are based on separate
statutory provisions, ORS 161.067. The provision that applies to robbery while representing that the
robber is armed was intended to address psychological harms created by a perceived armed robbery; the
provision that applies to robbery while aided by another person present was intended to address the
additional physical harm that may result in a robbery by two robbers.

         State v. Gonzales-Gutierrez, 216 Or App 97, 171 P3d 384 (2007), rev den, 344 Or 194 (2008).
Defendant was convicted of several counts of attempt, conspiracy, and solicitation to commit aggravated
murder and simple murder of each of two victims, and the trial court entered separate convictions.
Defendant did not object, but argued on appeal that all of the convictions based on the offenses
involving each victim should have merged into a single conviction for each victim. Held: Reversed.
[1] Under ORS 161.067(1), each of the convictions for attempted aggravated murder based on different
theories (murder for hire and murder of a witness) should have merged into a single conviction. [2] The
convictions based on different theories of conspiracy to commit aggravated murder also should have
merged. [3] Because ORS 161.485(2) provides that a court may enter convictions for only one inchoate
offense based on the same conduct against the same victim, all of defendant‘s convictions for attempt,
solicitation, and conspiracy of the same offense against the same victim, merge into single convictions
of attempted murder and attempted aggravated murder. [4] Finally, the convictions for attempted
murder must merge into the convictions for attempted aggravated murder.

        State v. Wilson, 216 Or App 226, 173 P3d 150 (2007), rev den, 344 Or __ (2008). In
defendant‘s retrial for aggravated murder and murder, the trial court was not required to ―re-merge‖ the
previously entered predicate felonies (which had been affirmed by the appellate courts) into the new
convictions for attempted aggravated murder, even though the original sentencing court had merged the
predicates into his aggravated-murder conviction. The Court of Appeals did not decide whether a
procedural mechanism exists to ―merge‖ convictions entered in separate proceedings because it held that
merger was not required in any event. First, it held that each crime has an element that the other does
not. Second, it held that, under State v. Barrett, 331 Or 27, 37 n 4, (2000), separate offenses that also
constitute aggravating circumstances for purposes of proving various theories of aggravated murder do
not merge into the convictions for aggravated murder.

        State v. Crawford, 215 Or App 544, 171 P3d 974 (2007), rev den, 344 Or 280 (2008).
Defendant was charged with and tried to a court on two counts of unlawful use of a weapon (UUW)
under ORS 166.220(1)(a) & (b) and another charge of being a felon in possession of a firearm. The trial
court entered separate convictions on all counts over defendant‘s objection that the UUW convictions
must merge. Held: Affirmed. The prohibitions on carrying and discharging firearms are directed at
separate and distinct legislative concerns; thus, they are ―separate statutory provisions‖ under ORS
161.067(1). And because carrying and discharging are different elements, each provision includes an
element that the other does not.

        State v. Walraven, 214 Or App 645, 167 P3d 1003 (2007), rev den, 344 Or 280 (2008). The
sentencing court erroneously failed to merge defendant‘s conviction for felony murder under
ORS 163.115(1)(b) into his single merged conviction for aggravated murder. Under ORS 161.067(1),
the provisions do not each ―require[] proof of an element that the others do not.‖ Because the
aggravated-murder statute defines aggravated murder as ―murder as defined in ORS 163.115 [and an
88

aggravating circumstance],‖ then any conviction for murder is subsumed in any conviction for
aggravated murder. Thus, a felony-murder conviction merges into a conviction for intentional
aggravated murder.

       State v. Link, 214 Or App 100, 162 P3d 1038 (2007). The sentencing court erred in not merging
defendant‘s multiple alternative convictions for aggravated murder, and his related convictions for
conspiracy and attempt to commit murder, based on a single homicide. It was not sufficient for the
judgment to recite that the convictions ―merge for sentencing.‖

        State v. Kayfes, 213 Or App 543, 162 P3d 308, rev den, 343 Or 390 (2007). Defendant, a
former middle-school teacher and coach, was convicted of numerous sexual offenses involving a
student. The jury specifically found that the offenses were ―separate acts‖ in that each count ―was an act
that does not arise from the same continuous and uninterrupted conduct as another act.‖ See
ORS 131.505(4). Held: Affirmed. The jury‘s finding that defendant committed the crimes during
separate criminal episodes provided a basis for the court to enter separate convictions under
ORS 161.067(3) for the separate crimes against the victim.

        State v. Brostrom, 212 Or App 486, 157 P3d 1237, mod on recon, 214 Or 604, 167 P3d 460
(2007) (per curiam), rev den, 344 Or 109 (2008). [1] The sentencing court erred in not merging
defendant‘s multiple convictions for first-degree criminal mistreatment based on a single victim.
[2] The court also erred in not merging her multiple convictions for alternative theories of felony fourth-
degree assault based on single victim.

         State v. Luers, 211 Or App 34, 153 P3d 688, aff’d on recon, 213 Or App 389, 160 P3d 1013
(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 separate 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 the latter offense, ―the state need not prove that, after assembling the
device, the person had possession of it in its completed form.‖

        Sentencing: miscellaneous—credit for time served

        Mecham v. Hill, 217 Or App 144, 174 P3d 1051 (2007). Plaintiff was not entitled to habeas
corpus relief on his claim, based on statements made by the sentencing judge after revoking his
probation, that he was entitled to credit for time served on probation violations in other cases. The
sentencing court has no authority to calculate the amount of credit for time served. Nissel v. Pearce,
307 Or 102, 105 (1988). Rather, under ORS 137.320, it is the responsibility of the DOC to calculate the
amount of credit to which the prisoner is entitled.

         Curtiss v. Dept. of Corrections, 212 Or App 42, 157 P3d 279 (2007). DOC rule that precludes
credit for time served during house arrest, OAR 291-100-0080(3)(g), is valid. The term ―confined‖ in
ORS 137.370(2)(a) ―equates with ‗imprisoned‘ and does not encompass a situation in which a person
voluntarily agrees to restrict his or her location.‖
                                                                                                     89

        Sentencing: miscellaneous—entry of amended judgment

         State v. Xocua-Xicalhua, 213 Or App 581, 162 P3d 336 (2007) (per curiam). Although the
sentencing court announced that it would impose consecutive sentences totaling 98 months, it did not
impose an 18-month sentence on one conviction. Weeks later, the court entered an amended judgment
to add the omitted 18-month term. Held: Reversed and remanded. [1] The court had authority under
ORS 138.083(1) to amend the judgment ―even after defendant had commenced serving his sentences.‖
[2] But the court erred in amending judgment without first providing him the notice required by the
statute.

        Sentencing: miscellaneous—stipulated sentences

        State v. Ivie, 213 Or App 198, 159 P3d 1257 (2007). Defendant pleaded guilty to second-degree
assault and the parties stipulated to a departure pursuant to ORS 137.712 to a probationary sentence but
further agreed that if defendant violated the probation, the court on revocation would impose a 70-month
term as the ―presumptive‖ sentence. The court imposed that sentence without making findings under
ORS 137.712 or 137.750. Later, upon revocation, defendant argued that ORS 137.712(5) barred a
sentence longer than 38 months. The court disagreed and imposed the 70-month sentence and denied
any eligibility for early release based on ORS 137.700(1). Held: Reversed and remanded. [1] In
interpreting the parties‘ plea agreement, ―commercial contract principles apply‖—―the construction of a
contract is a question of law, but when the contract is ambiguous, extrinsic evidence may be used to
resolve the ambiguity, and determination of a the parties‘ intent is a question of fact.‖ The record
supported the sentencing court‘s finding that defendant had stipulated to a 70-month term on revocation.
[2] Because 70-month term was imposed pursuant to stipulation, ORS 137.222(2)(d) barred appellate
review. But because the record does not show that defendant stipulated to the no-release order, his
challenge to that term is reviewable.

        Sentencing: miscellaneous—expunction

        State v. Hartford, 213 Or App 331, 161 P3d 331 (2007). ORS 137.225(6)(b) barred the court
from setting aside the record of defendant‘s arrest for burglary, because he was convicted of theft within
the preceding 10 years, even though the court properly had set aside that theft conviction pursuant to
ORS 137.225(1). The bar in ORS 137.225(6) applies to a record of an arrest as well as of a conviction.

        Sentencing: miscellaneous—fines, restitution, costs, forfeiture

        State v. Ferrara, 218 Or App 57, __ P3d __ (2008). The $20,000 restitution award to the
victim‘s son was erroneous in the absence of evidence of damages from the mother‘s murder. Although
the record shows that the victim‘s sole source of income was from Social Security benefits, there was no
evidence of the amount of support that the child received, as required under ORS 137.103 (2003).
        Note: In 2005, the legislature replaced the term ―pecuniary damages‖ with ―economic
damages,‖ which is a broader term. That legislative change would not affect the outcome of this case
because the 2005 amendment did not eliminate the state‘s obligation to offer some evidence of the
amount of damages.

         State v. Thorpe, 217 Or App 301, 175 P3d 993 (2007). Although, at sentencing, defendant did
state that he had delivered a check (one that was not part of the guilty plea) to another person, he did not
admit to acts that would constitute criminal possession of a forged instrument because he did not admit
that he knew it was forged. ORS 137.103(1) requires that the record clearly reflect that defendant
admitted engaging in criminal activities. Because defendant‘s admission did not meet that standard, the
90

restitution order was error.

        State v. Morris, 217 Or App 271, 174 P3d 1129 (2007). The sentencing court committed plain
error by imposing a $5,000 compensatory fine without proof that the victim suffered a ―pecuniary loss,‖
as required under ORS 137.101. The court rejected the state‘s argument that, if defendant had objected
at sentencing, it may have been able to provide a factual basis for the compensatory-fine award; rather,
it concluded that, because defendant did not ―invite‖ the error, and the amount was significant, the
interests of justice supported its decision to correct the error.

       State v. Reed, 214 Or App 164, 162 P3d 379, rev den, 343 Or 224 (2007) (per curiam). The
sentencing court erred when it imposed, on defendant‘s convictions for first-degree sodomy and
attempted rape, a compensatory fine of $20,000 to pay for future psychological treatment for the victim,
because the record does not establish that the victim actually suffered a pecuniary loss.

        State v. Pleasant, 212 Or App 697, 159 P3d 337 (2007) (per curiam). The sentencing court
erred in assessing restitution based on losses that occurred outside the dates in the counts to which
defendant pleaded guilty. The court remanded with directions ―to recalculate the restitution to include
only damages arising out of criminal activity for which defendant pleaded guilty or admitted.‖

        Sentencing: miscellaneous—other consequences of felony conviction
        See also ―DUII: sentencing,‖ above.

         James v. United States, 550 US __, 127 S Ct 1586, 167 L Ed 2d 532 (2007). Defendant pleaded
guilty to felon in possession of a firearm, 18 USC § 922(g), and he admitted the three prior state-court
felony convictions alleged in the indictment, including one for attempted burglary. Defendant argued
that he was not subject to the mandatory 15-year sentence under the Armed Career Criminal Act, 18
USC § 924(e), because his attempted-burglary conviction did not constitute a ―violent felony‖ under the
Act. The sentencing court disagreed and imposed the enhanced sentence. Held: Affirmed. The
attempted-burglary conviction falls into the Act‘s ―residual provision‖ for crimes that ―otherwise
involve conduct that presents a serious potential risk of physical injury to another,‖ § 924(e)(2)(B)(ii).
[1] Nothing in the text or legislative history of the Act bars use of a conviction for an attempt crime as a
predicate. [2] In determining which offenses constitute a ―violent felony‖ under the Act, ―we consider
whether the elements of the offense are of the type that would justify its inclusion within the residual
provision, without inquiring into the specific conduct of this particular offender.‖ [3] As the offense is
defined by state law, which requires an overt act directed toward entry of the structure, ―attempted
burglary presents a risk that is comparable to the risk posed by the completed offense.‖ And ―the proper
inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case,
presents a serious potential risk of injury to another.‖ The risk does not need to be presented in all
cases. [4] Defendant is not entitled under Apprendi to a jury trial on the issue whether the attempted-
burglary offense is a ―violent felony‖ because ―the Court is engaging in statutory interpretation, not
judicial factfinding‖—―we have avoided any inquiry into the underlying facts of [his] particular offense,
and have looked solely to the elements of attempted burglary as defined by Florida law.‖ Moreover,
―we have held that prior convictions need not be treated as an element of the offense for Sixth
Amendment purposes.‖

       State v. Sanders, 343 Or 35, 163 P3d 607 (2007). The requirement in ORS 137.076 that a
person convicted of a felony must submit to a blood or buccal sample does not violate Art I, § 9, or the
Fourth Amendment.
       See also State v. Brown, 212 Or App 164, 157 P3d 301, rev den, 343 Or 223 (2007).
ORS 137.076, which requires a DNA sampling for persons convicted of a felony or some
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misdemeanors, does not violate Art I, § 9, or the Fourth Amendment.

        Ramirez v. State of Oregon, 212 Or App 446, 157 P3d 1290, on recon, 214 Or App 400, 164
P3d 1221, rev den, 343 Or 554 (2007). In light of Gonzalez v. State of Oregon, petitioner was
adequately advised by his trial counsel, and by his plea petition, that he ―may be deported‖ as a result of
the conviction. Given petitioner‘s express acknowledgement in his petition, ORS 135.385(2)(d) did not
require the trial court to address petitioner specifically concerning that term before accepting his guilty
plea.

        State v. Terry, 214 Or App 56, 162 P3d 372 (2007). ORS 809.235(1)(b) does not violate Art I,
§ 20, by requiring a permanent revocation of driving privileges upon a third conviction for DUII under
ORS 813.010, despite defendant‘s contention that it discriminates unfairly on the basis of residence (by
excluding residents of other states). ―The statute distinguishes on the basis of where the person
committed the offense, not on the basis of where the person who committed the offense resides.‖
Moreover, because defendant committed the offense on which the revocation is based, he is responsible
for placing himself in the disadvantaged class.

        Ramirez v. State of Oregon, 212 Or App 446, 157 P3d 1290, on recon, 214 Or App 400, 164
P3d 1221, rev den, 343 Or 554 (2007). In light of Gonzalez v. State of Oregon, petitioner was
adequately advised by his trial counsel, and by his plea petition, that he ―may be deported‖ as a result of
the conviction. Given petitioner‘s express acknowledgement in his petition, ORS 135.385(2)(d) did not
require the trial court to address petitioner specifically concerning that term.
        See also Senda v. Thompson, 212 Or App 706, 159 P3d 355, rev den, 343 Or 159 (2007) (per
curiam) (same, rejecting claim under Sixth Amendment).

        Sentencing: appeals—appealable orders and judgments

        State v. Hess, 342 Or 647, 159 P3d 309 (2007). Defendant was charged with felony public
indecency, ORS 163.465. Prior to trial, he stipulated to his prior public-indecency convictions and the
court, over the state‘s objection, removed the prior-convictions element from the jury‘s consideration.
The state appealed. Held: The order is appealable under ORS 138.060(1)(c) because it effectively
excluded evidence from the jury. The state is prejudiced, because unless the ruling is correct, it is being
deprived of its right to a jury trial under ORS 136.001.

        Sentencing: appeals—scope of review

        State v. Ivie, 213 Or App 198, 159 P3d 1257 (2007). Defendant pleaded guilty to second-degree
assault and the parties stipulated to a departure pursuant to ORS 137.712 to a probationary sentence but
further agreed that if defendant violated the probation, the court on revocation would impose a 70-month
term as the ―presumptive‖ sentence. The court imposed that sentence without making findings under
ORS 137.712 or 137.750. Later, upon revocation, defendant argued that ORS 137.712(5) barred a
sentence longer than 38 months. The court disagreed and imposed the 70-month sentence and denied
any eligibility for early release based on ORS 137.700(1). Held: Reversed and remanded. [1] In
interpreting the parties‘ plea agreement, ―commercial contract principles apply‖—―the construction of a
contract is a question of law, but when the contract is ambiguous, extrinsic evidence may be used to
resolve the ambiguity, and determination of a the parties‘ intent is a question of fact.‖ The record
supported the sentencing court‘s finding that defendant had stipulated to a 70-month term on revocation.
[2] Because 70-month term was imposed pursuant to stipulation, ORS 137.222(2)(d) barred appellate
review. But because the record does not show that defendant stipulated to the no-release order, his
challenge to that term is reviewable. [3] The sentencing court erred in denying eligibility for release,
92

because defendant was not sentenced pursuant to ORS 137.700(1) and the court did not make findings
under ORS 137.750 to support that order.

        Sentencing: appeals—reviewability, preservation, ―plain error‖ review

        State v. Banks, __ Or App __, __ P3d __ (March 19, 2008). Defendant‘s unpreserved challenge
to the imposition of consecutive sentences based on State v. Ice, 343 Or 248 (2007), was reviewable as a
claim of ―plain error.‖ Because of the gravity of the error, and because it was highly unlikely that
defendant made a strategic choice to forgo an objection (and because the trial court likely would have
rejected it based on the law at the time), the court exercised its discretion to review the claim on appeal.

         State v. Hammond, __ Or App __, __ P3d __ (March 19, 2008). Defendant‘s act of filing of an
ORS 137.754 motion after the execution of sentence in an attempt to convince the sentencing court to
make the required findings of ―substantial and compelling reasons‖ to support its order denying
eligibility for alternative sentencing programs did not ―retroactively‖ preserve his claim for appeal.

        State v. Gallegos, 217 Or App 248, 174 P3d 1086 (2007). Defendant‘s challenges to the use of
unenumerated aggravating factors are reviewable, even in an appeal from a judgment entered on a
conviction based on guilty plea, under ORS 138.050 and ORS 138.222(4). The court rejected the state‘s
argument that defendant‘s claim is barred by ORS 138.050 (limiting appeals based on a guilty plea) and
ORS 138.222(4) (court can review claim that the sentencing court ―failed to comply with the
requirements of law in imposing or failing to impose a sentence‖), citing State v. Stubbs, 193 Or App
595, rev den 337 Or 669 (2004), and State v. Arnold, 214 Or App 201 (2007).
        See also State v. Schenewerk, 217 Or App 243, 174 P3d 1117 (2007) (rejecting state‘s similar
reviewability arguments); State v. Crocker, 217 Or App 238, 174 P3d 1129 (2007) (same).

        State v. Steen, 215 Or App 635, 170 P3d 1126 (2007). Defendant waived any challenge to the
lack of findings to support consecutive sentences. In a situation in which the record supports findings
that support consecutive sentences, the appellate court lacks authority to consider an unpreserved
challenge to the court‘s failure to state its findings.

        State v. Carr, 215 Or App 306, 170 P3d 563 (2007), rev den, 344 Or 109 (2008). Court declined
to review unpreserved challenges to probation conditions prohibiting defendant from using the sidewalk
outside the school, because defendant did not address why the court should exercise its discretion to
review his arguments on appeal. Thus, even if the claim were one of plain error, the court would decline
to review it.

         State v. Dominguez-Coronado, 215 Or App 7, 168 P3d 291 (2007). Defendant failed to
preserve his claim that his two DCS convictions were based on the same act of delivery and different
only in their offense-subcategory factors. His claim is not one of plain error because it was possible
that the charges were based on two separate deliveries—the first being an attempted sale to an
informant, and the second based on evidence found in an apartment—in which case, the convictions
would not have merged.

        State v. Johnson, 215 Or App 1, 168 P3d 312, rev den 343 Or 366 (2007). The court declined
to review defendant‘s challenge to the use of juvenile adjudications to enhance his criminal-history
score on a ―plain error‖ basis because defendant already had served his sentences.

        State v. Casiano, 214 Or App 509, 166 P3d 599 (2007). [1] Appellate review of the sentencing
court‘s erroneous application of ORS 137.635 to deny eligibility for leave and other programs during the
                                                                                                      93

service of the sentence is not foreclosed by ORS 138.222(2)(a), even though the prison sentence
imposed by the court was within the presumptive range. Although ORS 138.222(2)(a) precludes
appellate review of the length of a sentence that is within the presumptive guidelines range for the
offense, it does not preclude the appellate courts from reviewing other aspects of the sentence, such as
the defendant‘s eligibility for subsequent modifications of the sentence by the Department of
Corrections or other supervisory authority. [2] The sentencing court committed ―plain error‖ by
applying ORS 137.635 based on a prior conviction that was entered after defendant‘s commission of the
offense in this case, contrary to State v. Allison, 143 Or App 241, rev den 324 Or 487 (1996) (holding
that ORS 137.635 refers only to a person who, at the time of the commission of the second offense, had
already been convicted of a prior listed offense). [3] The order denying defendant eligibility for leave
cannot be affirmed on the ground that the sentencing court could have denied him eligibility for leave
under ORS 137.750 because the record did not show that, had the sentencing court realized its error
regarding ORS 137.635, it would have denied eligibility under ORS 137.750.

        State v. Nave, 214 Or App 324, 164 P3d 1219 (2007). A revocation of driving privileges is part
of the ―disposition‖ that is reviewable in an appeal based on a guilty plea.
        See also State v. Roberts, 216 Or App 238, 172 P3d 651 (2007) (same).

        State v. Arnold, 214 Or App 201, 164 P3d 334 (2007). Defendant was convicted at trial of
second-degree robbery based on his aiding and abetting a robbery by driving and waiting in the getaway
car while two other men robbed the victim at gunpoint. The sentencing court imposed the mandatory
Measure 11 sentence, rejecting defendant‘s argument that the court should impose a downward
departure under ORS 137.712. Held: Sentence vacated and reversed. The sentence was reviewable on
appeal under ORS 138.222(4)(a), notwithstanding that the Measure 11 sentence was not an unlawful
sentence.

         State v. Toth, 213 Or App 505, 162 P3d 317 (2007). At a sentencing hearing held per SB 528,
the jury found that, as alleged, defendant was persistently involved in similar offenses. Based on that
finding, the court imposed an upward-departure sentence. For the first time on appeal, defendant
contended that the court‘s instruction on that factor, which parroted the rule, OAR 213-008-
0002(2)(b)(D), was insufficient for not including the ―malevolent quality‖ consideration discussed in
appellate decisions. Held: Affirmed. [1] ORCP 59 H does not preclude review of a defendant‘s
unpreserved claim that the trial court erred in failing ―to deliver an instruction that was not requested but
that the law nevertheless requires.‖ [2] Although the ―persistent involvement‖ factor entails more than a
finding of prior convictions, it does not necessarily follow that the jury must be instructed on the judicial
gloss given to that factor. ―The word ‗persistent,‘ … is commonly understood to connote—without
further elaboration—‗continuing in a course of action without regard to opposition or previous failure.‘‖
Thus, the trial court did not commit plain error by instructing the jurors in the language of the rule.

        State v. Mallory, 213 Or App 392, 162 P3d 297 (2007), rev den, 344 Or 110 (2008). After
defendant pleaded guilty to multiple offenses within the scope of ORS 137.717 (RePO), the sentencing
court found that she had committed several of the offenses during separate criminal episodes and, per
under ORS 137.717(5)(a), used the first offenses as predicate convictions to impose 13-month RePO
sentences on her later-committed offenses. Defendant appealed, contending that she was entitled under
Blakely to a jury trial on that issue. Held: Affirmed. [1] Defendant‘s objection is adequately preserved;
even if counsel did not articulate the objection on the record, the sentencing court acknowledged
understanding the objection and overruled it. [2] When defendant pleaded guilty to counts that alleged
different dates, she thereby ―admitted sufficient facts to establish that those offenses involved separate
criminal episodes.‖
94

       State v. Johnson, 212 Or App 135, 157 P3d 295 (2007) (per curiam). The sentencing court
committed plain error by imposing a 20-year term of post-prison supervision per ORS 144.103 on
defendant‘s conviction for first-degree sexual abuse (the correct term is 10 years).

        State v. Soto-Nunez, 211 Or App 545, 155 P3d 96, rev den, 343 Or 206 (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.‖

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

         State v. Bray, 342 Or 711, 160 P3d 983 (2007). Defendant was convicted on multiple counts of
encouraging child sexual abuse. At sentencing, the court departed upward based on findings of three
aggravating factors, including that defendant was persistently involved in similar offenses, OAR 213-
008-0002(2)(b)(D), and found that any factor standing alone would support the departures. On appeal,
the state argued that the ―persistent involvement‖ finding was permissible under the ―fact of a prior
conviction‖ exception in Blakely. Held: Reversed and remanded. [1] Because the sentencing court
found any factor was sufficient, the appellate court could affirm if any of the factors was legally
permissible. [2] The ―persistent involvement‖ factor raises a ―factual issue that, under Apprendi and
Blakely, a defendant may insist that a jury find beyond a reasonable doubt.‖ [3] Although a rational
juror could find ―persistent involvement‖ based on defendant‘s criminal record, the error was not
harmless.

        State v. Link, 214 Or App 100, 162 P3d 1038 (2007). The sentencing court erred in not merging
defendant‘s multiple alternative convictions for aggravated murder based on a single homicide. Because
the case must be remanded per Barrett for entry of a single conviction for aggravated murder, the court
refused to consider defendant‘s argument that the evidence did not support his conviction for aggravated
felony murder. Given that other counts are sufficient to support that conviction and defendant ―did not
appeal his convictions on the grounds that he was wrongly convicted‖ on the counts of aggravated
felony murder, any error ―would not affect a substantial right.‖ (Distinguishing State v. Garner, 194 Or
App 268 (2004).)

       State v. Boone, 213 Or App 242, 160 P3d 944, on recon, 215 Or App 428, 169 P3d 1274 (2007).
Because the Court of Appeals reversed several of defendant‘s convictions and, as a result, remanded the
case pursuant to ORS 138.222(5) for resentencing, the court concluded that ―it need not address‖
defendant‘s challenges to the sentences imposed on his other convictions.

        State v. Hollinquest, 212 Or App 488, 157 P3d 96, rev den, 343 Or 206 (2007) (per curiam).
The court imposed on defendant‘s conviction for first-degree manslaughter a 240-month sentence (by
upward departure) with a 36-month term of post-prison supervision. Held: Reversed and remanded.
[1] Because the 240-month term is the statutory maximum, the court committed plain error by imposing,
in addition, the 36-month term of post-prison supervision. [2] The fact that the court imposed a
24-month term of post-prison supervision on defendant‘s FIP conviction, which he does not challenge,
does not make the error harmless, even though the post-prison supervision terms will be served as a
single unit under OAR 213-012-0040, because the erroneous term is longer.

       State v. Carroll, 212 Or App 317, 157 P3d 1193 (2007) (per curiam). Defendant‘s unpreserved
Blakely-based challenges to multiple departure sentences do not warrant review because he served those
sentences and was released onto a single post-prison supervision term.
                                                                                                   95

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

        State v. Luers, 211 Or App 34, 153 P3d 688, aff’d on recon, 213 Or App 389, 160 P3d 1013
(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.

       Sentencing: appeals—proceedings on remand

         State v. Davis, 216 Or App 456, 174 P3d 1022 (2007). The sentencing court erred in ruling that
it lacked authority to consider defendant‘s Blakely claim upon remand for resentencing on his
convictions for murder and felon in possession, even though the sentence on the latter conviction was
not at issue in the previous appeal. Under ORS 138.222(5), when a case requires resentencing on any
part of the judgment, the sentencing court has authority to resentence on all convictions.

        State v. Bisby, 212 Or App 86, 157 P3d 262, rev den, 343 Or 160 (2007). Pursuant to a plea
agreement, the parties stipulated to a 72-month sentence. At defendant‘s request, the court imposed that
term by upward departure on his coercion conviction and imposed a concurrent 25-month sentence on
his conviction for tampering with a witness. Later, a post-conviction court vacated all the sentences and
remanded for resentencing. At resentencing, more than 25 months after the original sentencing, the
court modified the sentences to consecutive presumptive terms of 36 and 30 months. Held: Reversed
and remanded. [1] ORS 138.222(5) ―applies only to courts imposing new sentences on remand from
‗the appellate court,‘ and not to cases like this one on remand from a post-conviction court.‖
[2] Because State v. Smith, 323 Or 450 (1996), precludes modification of a sentence that the defendant
already has served, the post-conviction court did not have authority under ORS 138.520 to allow a
resentencing of defendant‘s tampering conviction.

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

        Buffa v. Belleque, 214 Or App 39, 162 P3d 376, rev den, 343 Or 690 (2007). Petitioner was
convicted of several burglaries in 2000, and the sentencing court departed upward on a finding of
―persistent involvement.‖ The judgment was entered a month after Apprendi was decided and before
the Court of Appeals issued its opinion in State v. Dilts. Petitioner alleged in this post-conviction
petition that his counsel provided inadequate assistance by failing to raise an Apprendi-based objection
to the departure. Held: ―Given the common understanding of Apprendi before the decision in Blakely,
counsel, exercising reasonable skill and judgment, could well conclude, even before Dilts, that there was
no merit in raising an Apprendi argument against a guidelines departure sentence.‖

        State v. Bisby, 212 Or App 86, 157 P3d 262, rev den, 343 Or 160 (2007). Pursuant to a plea
agreement, the parties stipulated to a 72-month sentence. At defendant‘s request, the court imposed that
term by upward departure on his coercion conviction and imposed a concurrent 25-month sentence on
his conviction for tampering with a witness. Later, a post-conviction court vacated all the sentences and
remanded for resentencing. At resentencing, more than 25 months after the original sentencing, the
court modified the sentences to consecutive presumptive terms of 36 and 30 months. Held: Reversed
and remanded. [1] ORS 138.222(5) ―applies only to courts imposing new sentences on remand from
‗the appellate court,‘ and not to cases like this one on remand from a post-conviction court.‖
[2] Because State v. Smith, 323 Or 450 (1996), precludes modification of a sentence that the defendant
already has served, the post-conviction court did not have authority under ORS 138.520 to allow a
resentencing of defendant‘s tampering conviction.
96




SEXUAL OFFENSES

        State v. Bray, 342 Or 711, 160 P3d 983 (2007). Defendant, a prison inmate, used a supervisor‘s
password to log onto a computer to download several images of child pornography. Defendant was
charged with first-degree encouraging child sexual abuse under ORS 163.686 for possessing a ―visual
recording of sexually explicit conduct involving a child with intent to print or display on the computer
screen‖ the image. Defendant moved for a judgment of acquittal contending that the state failed to
introduce sufficient evidence that he intended to disseminate the saved images to others. Held:
Affirmed. ORS 163.686 criminalized possessing images of child pornography with the intent to print or
display for one‘s own viewing.

        State v. Campbell, 218 Or App 171, __ P3d __ (2008). The mere fact that defendant had the
―opportunity‖ to commit the crimes of sexual abuse and unlawful sexual penetration—i.e., that he was
alone with the child while she was bathing—was insufficient corroboration of the charged crimes under
ORS 136.425. Likewise, the mere fact that defendant, at trial, denied having confessed may suggest
guilty knowledge in the sense that he may have done something wrong, it did not indicate what he did.

         State v. Delp, 218 Or 17, __ P3d __ (2008). Defendant‘s confession to sexually abusing his
girlfriend‘s infant daughter was not supported by ―some other proof that the crime has been committed,‖
as required by ORS 136.425, despite the following evidence: (1) that defendant had access to the victim
at times when no other adults were present in the home; (2) that the pink towel, the instrumentality used
to conceal the acts, was located and seized in the home; and (3) that the child pornography seized on
defendant‘s computer and his explicit online conversations demonstrated that he had a sexual interest in
young children.

         State v. Clum, 216 Or App 1, 171 P3d 980 (2007). Defendant was convicted in a bench trial of
failing to report as a sex offender in violation of ORS 181.599(1)(d) based on the allegation that he
failed to report under ORS 181.597(1)(a), which requires an offender who ―moves into this state‖ to
make certain reports. In a motion for a judgment of acquittal, defendant asserted that he was already a
resident of Oregon when the reporting requirement was enacted, and that, as a consequence, it did not
apply to him. The trial court denied the motion, and then convicted defendant, finding that defendant
moved into Oregon before the enactment of the statute, but that the reporting requirement applied to
him. Defendant appealed. Held: Reversed. The reporting requirement in ORS 181.597 applies only to
persons who move into the state after the enactment of the requirement. Based on the plain language of
the statute, the obligation to report arises only when the person ―moves‖ into Oregon. Because
defendant already had moved to Oregon when the provision was enacted, he was not required to report.

         State v. Dunlap, 215 Or App 46, 168 P3d 295 (2007). [1] Even without expert testimony, the
state presented sufficient evidence that the images contained on defendant‘s computer depicted ―real
children.‖ Each of the relevant images appears on its face to depict an actual child engaged in the
conduct, and there was no evidence in the record demonstrating that such images are capable of
fabrication to the point of being indistinguishable from images of actual children. [2] The evidence
supported a finding that defendant knowingly possessed the images on his computer, despite his claim
that the state failed to prove he viewed each image that formed the basis for the charges. First, the
evidence—which showed that the images were created on one date and modified several days later—
supported an inference that he did, in fact, view the images. Second, even if he did not view every
image, a rational juror could infer from the circumstantial evidence (including the sheer number of
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images) that he had knowledge that he possessed images containing child pornography during the time
period. [3] A rational juror could find that he possessed the images for the purpose of sexual arousal,
based on his admission that he was ―excited‖ by child pornography. [4] A rational trier of fact could
conclude that the photograph depicted sexually-explicit conduct (―lewd exhibition of sexual or other
intimate parts‖). First, it was cropped to focus on a female child‘s nude genital area; second, a juror
could find that the hand depicted near the child‘s genital area belonged to a person other than the child.

        State v. Simons, 214 Or App 675, 167 P3d 476 (2007), rev den, 344 Or 43 (2008). Defendant
sexually assaulted three Alzheimer‘s patients while working as a hospital nursing assistant. The conduct
was discovered when defendant gave strange responses to police questioning on another claim of sexual
misconduct. Defendant ultimately confessed to committing sexual offenses against three elderly
victims. The victims were unable to testify, and there was no physical evidence to corroborate
defendant‘s confessions. Defendant argued that, under ORS 136.425, there was insufficient
corroboration of his confessions, but the trial court rejected his argument. Held: Some conviction
reversed. All statements to the detective were ―confessions,‖ because the trial court found that all of the
statements were ―made for the purpose of acknowledging guilt.‖ Under ORS 136.425, a confession
alone is insufficient, without some other evidence from which the jury may draw an inference that tends
to establish or prove that a crime has been committed. Although there was ample evidence that
defendant had the opportunity to commit the crimes, that he was sexually interested in order women,
and that one of the victims had demonstrated unusual behavior around the time of the abuse, it was
nonetheless insufficient to corroborate the corpus delecti of any of the alleged sexual offenses.

         State v. Betnar, 214 Or App 416, 166 P3d 554 (2007). Defendant was properly convicted of
first-degree encouraging child sexual abuse under ORS 163.684, based on evidence that he ―duplicated
and printed‖ 199 sexually explicit images of children. [1] The prohibition in ORS 163.684 on
possession of images depicting child sexual abuse—as opposed to other types of abuse—does not
violate the right to freedom of expression. [2] ORS 163.684 prohibits possession of images of abuse,
regardless of when they were created or when the abuse occurred; thus, there is no ex post facto
prohibition to applying it to possession of images that were created before the statute‘s effective date.
[3] There was sufficient evidence that defendant ―printed‖ and ―duplicated‖ the images found in his
possession. Although it was possible that defendant came into possession of the images in some other
way, a rational trier of fact could find, based on his possession of a computer and floppy disks,
photographs, and CD-ROMs with images on them, that he, in fact, had duplicated or printed those
images.

        State v. Neubauer, 214 Or App 130, 162 P3d 1044, rev den, 343 Or 363 (2007). The victim
suffered from bi-polar disorder and was a patient voluntarily admitted into a mental hospital where
defendant was a registered nurse. While in a manic phase, the victim asked defendant for ―something to
get high and have fun.‖ Defendant provided her with medication that made the victim feel ―very
sedated, lethargic and uninhibited.‖ Soon thereafter, defendant appeared at the victim‘s bedside, with
his penis erect and out of his pants. Although the victim did not want to engage in oral sex, she did so
because she felt defendant ―expected‖ it and could ask her to do so as a patient in the ward. The victim
described her conduct as acquiescing to defendant‘s implied request. Defendant moved for judgment of
acquittal, arguing that the state failed to introduce sufficient evidence that the victim did not consent to
the sexual act. Held: Affirmed. Regardless of the victim‘s use of the words ―consent‖ and
―acquiescence‖ in her testimony in reference to her actions, a rational factfinder could find that the
victim, ―a sedated patient in a secured psychiatric facility, simply did not protest when confronted with
the apparent demand of defendant, a nurse in a position of power over her.‖
98

        State v. Liston, 212 Or App 703, 159 P3d 335, rev den, 343 Or 206 (2007). The circumstantial
and physical evidence was sufficient for the jury to find that defendant intended to commit specific
sexual crimes against the victim, a severely autistic 11-year-old girl who was unable to testify at trial.
The victim‘s mother came home early to find defendant, naked, leaving the victim‘s bedroom with the
victim tied to the bed.

        State v. Barteaux, 212 Or App 118, 157 P3d 225, rev den, 343 Or 160 (2007). Defendant was
charged with sexually assaulting his mentally disabled adult cousin, based on allegations that she was
―incapable of consent by reason of mental defect,‖ ORS 163.305(3). The state‘s expert testified that the
victim‘s mental defect prevented her from understanding ―how to say no.‖ The trial court denied
defendant‘s motion for a judgment of acquittal. Held: Affirmed. The expert‘s testimony demonstrated
―the necessary link between the victim‘s mental condition and her incapacity to consent to sexual
contact.‖ In addition, although the expert‘s testimony was sufficient, the inference also was supported
by defendant‘s acknowledgement to interviewing officers that he knew that the victim lacked the ability
to consent. Although there also was evidence from which the jury reasonably could have found that the
victim had the capacity to consent, the court, in reviewing the sufficiency of the evidence, would not
choose between competing inferences.

SPEEDY TRIAL

        State v. McDonnell, 343 Or 3 Or 557, 176 P3d 1236 (2007). On automatic review of the
judgment of conviction for aggravated murder and sentence of death. [1] The Art. I, § 10, right to justice
without delay applies to penalty-phase retrials. [2] In this case, the delay caused by several appellate
remands was reasonable; those remands were necessary to allow the trial court to proceed to a valid
judgment. Moreover, the state is authorized by statute to pursue a death sentence, and the state did not
engage in dilatory behavior or other vexatious conduct during the appellate process or in the
proceedings on remand. Finally, defendant failed to prove that he suffered any cognizable prejudice due
to the delay; although members of his family had died, he failed to prove that they would have supplied
any support for an argument against the death sentence.
        Note: This holding effectively overrules the Court of Appeals decision in State v. Davis, 216 Or
App 456 (2007), in which it held that the speedy-trial provision in Art. I, § 10, applies only to the time
before a first trial.

         State v. Johnson, 342 Or 596, 157 P3d 198 (2007). On automatic review of the judgment of
conviction for aggravated murder and sentence of death. Held: Affirmed. [1] The trial court correctly
denied defendant‘s motion to dismiss based on his claim that the state violated his constitutional right to
a speedy trial (Art I, § 10; 6th Amend) by taking two appeals from separate pretrial orders suppressing
evidence. The decision to pursue the appeals was not unreasonable, and the length of the delay caused
by the state in pursuing those appeals was not unreasonable. ―[T]he length of the delay weighs against
the state but the state did not act unreasonably in taking or pursing the two appeals.‖ Moreover,
defendant failed to prove that he was prejudiced by the delay. ―[W]hen the value of the unavailable
evidence is only speculative, the unavailability of that evidence will not factor significantly into the
analysis.‖ Defendant‘s claim based on the Sixth Amendment fails because he delayed for five years
before asserting his speedy-trial right. [2] Defendant‘s claim based on ORS 135.747 fails because the
legislature has expressly authorized the state to take pretrial appeals in certain situations; thus, a
defendant is brought to trial within a reasonable time within the meaning of ORS 135.747 as long as the
state reasonably made the decision to take the appeal and has prosecuted the appeal with diligence.

        State v. Purdom, __ Or App __, __ P3d __ (March 19, 2008). When a case is re-initiated after
the original accusatory instrument was dismissed without prejudice, the statutory speedy-trial
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calculation under ORS 135.747 begins to run at the time of the filing of the most current charging
instrument before the court. Nothing in State v. Johnson, 339 Or 69 (2005), changes that result.

        State v. Olstad, __ Or App __, __ P3d __ (March 19, 2008). The trial court correctly denied
defendant‘s motion to dismiss based on his claim of a violation of his Art. I, § 10, right to a speedy trial,
because he failed to prove that he was prejudiced. Defendant admitted to facts that demonstrated all of
the elements of the crime in his stipulation for purposes of his stipulated-facts trial, and thus failed to
show that the loss of a witness caused a ―reasonable possibility of prejudice to the defendant‘s ability to
prepare a defense.‖

STALKING

         Benaman v. Andrews, 213 Or App 467, 162 P3d 280 (2007). In 2001, petitioner obtained a
stalking protective order (SPO) against respondent, her neighbor. Respondent moved several miles
away in 2003 but continued to own the property and use it to take harassing actions against petitioner.
Respondent then asked the court to vacate the SPO. After a hearing, the court denied the motion, found
it to be frivolous, and ordered respondent to pay petitioner‘s attorney fees under ORS 20.105. Held:
[1] In light of Edwards v. Biehler, 203 Or App 271 (2005), a court may terminate a SPO if it finds that
the criteria for issuing the order no longer are present. The burden is on the respondent, and the court‘s
role in such a hearing ―is not to re-evaluate the correctness of the original order or to determine whether
the circumstances since the issuance of the original SPO would be sufficient to justify the issuance of a
new SPO.‖ Rather, the focus is whether petitioner continues to suffer reasonable apprehension. On this
record, the trial court correctly denied respondent‘s motion. [2] The trial court, which ruled before
Edwards, may have misapplied the standard under ORS 20.105. Respondent‘s ―personal motivation for
seeking relief is not relevant‖—the question is whether she had an ―objectively reasonable basis‖ for
seeking relief.

STATUTE OF LIMITATIONS

        State v. Gruhlke, 214 Or App 169, 162 P3d 380 (2007). Two years after the date of the DUII
offense, the state filed an ―amended‖ indictment that did not allege any facts to avoid the statute of
limitations. The trial court overruled defendant‘s demurrer, and he entered a conditional guilty plea.
Held: Reversed. The indictment was defective because it failed allege facts to establish that prosecution
had been commenced within the statute of limitations, as required by ORS 132.540(1)(c).

STATUTORY CONSTRUCTION

         Mastriano v. Board of Parole, 342 Or 684, 159 P3d 1151 (2007). In 1997, the board revoked
petitioner‘s parole on a 1985 burglary conviction, and in 1998 the board reset his parole-release date for
2010. Petitioner unsuccessfully sought judicial review. In 2003, petitioner asked the board to reopen
and reconsider its 1997 and 1998 orders, but the board denied that request. Petitioner petitioned for
judicial review. Held. Petition dismissed. In Esperum v. Board of Parole, 296 Or 789 (1984), the court
held that a board order denying reopening and reconsideration of an earlier final order is not itself a final
order for purposes of judicial review pursuant to ORS 144.335(1). [1] A case predating PGE v. BOLI
should not be discounted on that basis; ―PGE did not change the substantive principles that apply to
statutory interpretation so much as it provided a coherent and predictable order in which to invoke those
principles. The absence of PGE-style examination of legislative intent does not deprive a prior statutory
interpretation of its ordinary effect as precedent.‖ [2] ―[W]e generally presume that the legislature
enacts statutes in light of existing judicial decisions that have a direct bearing on those statutes. The
post-Esperum amendments [to ORS 144.335] reveal that the legislature changed the statute in ways that
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not disturb the holding in Esperum.‖ Thus, that decision ―remains controlling.‖

         State v. Sandoval, 342 Or 506, 156 P3d 60 (2007). Defendant, charged with murder, 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 based on language in
State v. Charles, 293 Or 273 (1982), 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.‖ The instruction 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 trial court gave the instruction over defendant‘s objection. Held: Reversed.
[1] Although the state‘s reliance on Charles was ―understandable,‖ the Charles decision was not based
on the self-defense statutes, but instead was decided on pre-1971 case law. 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 the statutes
only require that the person using deadly force must reasonably believe that the degree of force is
necessary. The statutes do not impose an additional requirement that the person must retreat before
using deadly force in self-defense.

         State v. Mersman, 216 Or App 194, 172 P3d 654 (2007), rev den, 344 Or __ (2008). For felony
DUII, a ―statutory counterpart‖ need not have precisely the same elements or scope. It is sufficient that
the statutes either are ―remarkably similar‖ or ―have the same use, role, or characteristics.‖ In this case,
defendant was convicted under an Alaska statute that is broader than Oregon‘s DUII statute in that it
requires only that the defendant had ―physical control‖ over the vehicle, even without proof of driving.
The court did not decide whether the statutes are ―remarkably similar.‖ Rather, the court concluded that
the statutes have ―the same use, role, or characteristics.‖

         State v. Clum, 216 Or App 1, 171 P3d 980 (2007). The reporting requirement in ORS 181.597,
which requires an offender who ―moves into this state‖ to make certain reports, applies only to a person
who has moved into the state after the enactment of the requirement. Based on the plain language of the
statute, the obligation to report is triggered only when the person ―moves‖ into Oregon.

        State v. Rennells, 213 Or App 423, 162 P3d 1006, rev den, 343 Or 206 (2007). Defendant
waited in a car 25 feet away while Jackson approached the victim, knocked her down, and grabbed her
purse. Both defendant and Jackson were charged with second-degree robbery under ORS 164.405(1)(b)
(―aided by another person actually present‖). Held: Reversed. [1] The evidence was sufficient to prove
that defendant was ―actually present‖ because he was ―within reach, sight or call as to present an
immediate added threat to the victim‘s safety.‖ [2] The trial court erred in failing to instruct the jury
whether defendant actively engaged in the use or threat of use of force during the robbery. In order to
be culpable under ORS 164.405(1)(b), a defendant must actively engage in the force involved in the
robbery.
        Note: The trial court did not give an instruction telling jurors that defendant could be found
guilty of second-degree robbery based on an aid-and-abet theory (i.e., that defendant aided his co-
defendant‘s use of force by being actually present), so the Court of Appeals did not reach that issue in
this case.

        State v. Cox, 212 Or App 637, 159 P3d 352 (2007). For purposes of ORS 163.160(3)(c), which
elevates assault in the fourth degree from a misdemeanor to a felony if the assault occurred ―in the
immediate presence‖ of a child, the term ―in the immediate presence‖ means that the assault occurred
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―in the same, physically unseparated, space where the child was located‖ (i.e., in the same room). Any
broader definition would obviate the need for the ―was witnessed by‖ alternative.

         State v. Fries, 212 Or App 220, 159 P3d 10, rev allowed, 343 Or 363 (2007). Defendant was
convicted of PCS for helping a friend move, during which he carried several of the friend‘s marijuana
plants out of the apartment and placed them in the car. Defendant moved unsuccessfully for a judgment
of acquittal contending that, because the friend, who owned the marijuana, had a ―medical marijuana
card,‖ defendant was permitted to possess the marijuana at the direction of his friend. Held: Affirmed.
By carrying the plants out to the car, defendant committed PCS by physically ―possessing‖ the plants.
The fact that he may have possessed the plants under someone else‘s direction and control does not alter
that fact, and his conduct was not otherwise authorized by the Oregon Medical Marijuana Act.

        State v. Jackson, 212 Or App 51, 157 P3d 239, rev den, 343 Or 206 (2007). Defendant forcibly
grabbed a woman‘s purse while Rennells waited in a car with the engine running. After robbing the
victim, defendant jumped into the passenger side of the car, the door of which had been left open. He
was convicted of second-degree robbery under ORS 164.405(1)(b) ( ―aided by another person actually
present‖). On appeal, he argued that the aid of Rennells, 10 to 25 feet from the robbery, was not the aid
of a person ―actually present.‖ Held: Affirmed. The term ―aided by another person actually present‖
includes a person who is at hand, or within reach, sight or call, and who, under the totality of the
circumstances, presents an added threat to the victim‘s safety. A jury could find that, because of the
driver‘s proximity to the robbery and his presence in a car with the engine running, he posed a real and
immediate threat to the victim‘s safety.

        City of Portland v. King, 211 Or App 540, 156 P3d 87 (2007). Defendant, who was contacted
by police when he came out of his house onto his front porch while carrying a loaded shotgun, was
convicted of violating Portland City Code 14A.60.010 (possessing a loaded firearm in a public place).
The ordinance defines ―public place‖ to include privately owned places ―to which the general public has
access.‖ Held: The general public has access to defendant‘s front porch, and the ordinance does not
require that defendant expressly invited the public into that area; thus, it was a ―public place.‖

        State v. Gaines, 211 Or App 356, 155 P3d 61, adh’d to on recon 213 Or App 211, 159 P3d
1291, rev allowed, 343 Or 363 (2007). Defendant was charged with obstructing governmental
administration by means of ―physical … interference or obstacle,‖ in violation of ORS 162.235. The
charge was based on her conduct in refusing to accompany a correctional officer to the booking area to
allow him to take a front-facing photograph to complete her file. At trial, she moved for a judgment of
acquittal, arguing that her refusal to accompany the officer to the booking area did not constitute
―physical … interference or obstacle,‖ because she did not move her body. The trial court denied the
motion and convicted her in a bench trial. Held: Affirmed. ―Physical interference‖ does not require a
bodily movement; rather, defendant‘s failure to move when ordered to do so constituted ―physical …
interference or obstacle.‖

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

        Stop & frisk: stop vs. mere encounter

        Brendlin v. California, 551 US __, 127 S Ct 2400, 168 L Ed 2d 132 (2007). Officers stopped a
vehicle in which defendant was a passenger. During the stop, the officers recognized defendant and
verified that a no-bail warrant was outstanding for his arrest. As a result of that arrest, the officers found
narcotics on him. Defendant moved to suppress contending that the stop was unlawful. The trial court
102

denied the motion. On appeal, the state conceded that the stop was unlawful, but the supreme court
affirmed, concluding that the initial stop did not constitute a stop of defendant. Held: Reversed.
[1] The officers‘ conduct constituted a stop of defendant because ―in these circumstances any reasonable
passenger would have understood the police officers to be exercising control to the point that no one in
the car was free to depart without permission.‖ [2] It is immaterial whether the officers subjectively
intended to stop the passenger, too, as opposed to just the driver—―we have repeatedly rejected attempts
to introduce this kind of subjectivity into Fourth Amendment analysis.‖ [3] The fact that a passenger
has no independent choice but to stop along with the car does not mean he has not been stopped—and
he did ―submit by staying inside.‖
         Note: The Court did not address whether the fact that a warrant was outstanding for defendant‘s
arrest affects his entitlement to suppression. Cf. State v. Dempster, 248 Or 404 (1967) (discovery of
warrant ―purged‖ any illegality of stop); State v. Angerbauer, 140 Or App 77 (1996) (same).

        State v. Caprar, 214 Or App 434, 166 P3d 567 (2007). Defendant was stopped when one officer
told him to stay in an apartment parking lot with another officer while the first officer went to
investigate an incomplete 911 call from one of the apartments.

        Stop & frisk: reasonable suspicion / probable cause

         State v. Cottrell, 215 Or App 276, 168 P3d 1200, rev den, 343 Or 554 (2007). Officers
contacted defendant after receiving a report of a possible drunk driver at a 7-Eleven store. After
observing signs of alcohol ingestion, one officer asked whether defendant ―had been drinking.‖
Defendant responded that he had had two ―pounder‖ beers. At that point, one officer remained with
defendant while the other went into the store. After talking to the clerk, the primary officer asked
defendant to perform physical FSTs, after which he arrested defendant. Defendant moved to suppress
all evidence of his interactions with the officers; the trial court suppressed the evidence based on its
conclusion that defendant was unlawfully stopped when the primary officer asked him whether he had
been drinking. The court also concluded that defendant was ―arrested‖ when the primary officer left
defendant with the cover officer outside the store, based on its finding that defendant ―was not free to
go.‖ Held: Reversed. [1] Even if the primary officer conducted a ―stop‖ by asking if defendant had
been drinking, he had reasonable suspicion based on observations of defendant‘s bloodshot, watery
eyes, his inattentive and messy eating, and the odor of alcohol on his breath. [2] The fact that an
individual is not ―free to go‖ does not transform a stop into an arrest. The officers were entitled to stop
defendant for the purpose of investigating a possible DUII. Defendant was not detained for an
unreasonable amount of time, or with unreasonable force, and the officers‘ conduct was not oppressive
or coercive; thus, he was subject only to a temporary restraint on his liberty, and that restraint was
justified by reasonable suspicion.

        State v. Caprar, 214 Or App 434, 166 P3d 567 (2007). Although officers encountered
defendant while responding to an incomplete 911 call from an apartment known for drug activity, and
learned that he had been visiting the apartment, the officer testified that she did not suspect defendant
had committed any particular crime when she told him to remain with another officer while she went to
the apartment. Thus, the stop was not supported by reasonable suspicion.

         State v. Petri, 214 Or App 138, 162 P3d 1053 (2007). The officer did not have a reasonable
belief to believe the defendant was still armed and dangerous after removing a closed sunglass container
which the defendant claimed held a ―point‖ or hypodermic syringe. Once the officer removed the
sunglass case from defendant, the officer no longer had a reasonable basis to believe the defendant was
armed. Further, once removing the sunglass container containing the ―point‖ from the defendant, the
officer had no basis to open the container, as the needle no longer presented a threat to the officer once
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removed from the defendant. Although defendant nervous when stopped, he complied with all other
requests of the officer and did not engage in any threatening or concerning action while being stopped.


        State v. Hendricks, 213 Or App 360, 160 P3d 1014 (2007). The officer held a reasonable belief
that defendant may have been armed and dangerous. The officer was responding to a call regarding a
wanted suspect armed with a handgun in a 7-Eleven store. When responding, the officer observed the
suspect and defendant standing close to each other at the back of the store. The officer could not see
their hands. When the suspect and defendant saw the officer, they appeared startled and immediately
separated. Defendant avoided looking at the officer as he walked past. Held: Based on defendant‘s
evasive behavior and the officer‘s concern that the wanted suspect may have handed the gun to
defendant, the officer was justified in ordering defendant to stop and frisking him. The officer‘s
concerns were heightened by the fact that his attention was divided between the wanted suspect and
defendant.

        Stop & frisk: scope or duration of stop

        State v. Raney, 215 Or App 339, 168 P3d 803 (2007), mod on recon, 217 Or App 470, 175 P3d
1024 (2008). Because the officer asked for consent to search the car while he was awaiting the results
of a records check, he did not extend the duration of the stop by asking for consent.

THEFT, FORGERY, AND PROPERTY OFFENSES
     See also ―Burglary‖ and ―Robbery,‖ above.

        State v. Foust, 215 Or App 649, 170 P3d 1118 (2007), rev den, 344 Or 280 (2008). Defendant
worked for Lane Funding Association (LFA), a trust that was established for the purpose of investing
funds; he and Bobi Lane, who was the general manager of LFA, had roles in misappropriating funds
held by the trust. Defendant was charged with numerous theft charges, each of which was alleged to
have been a theft of ―the property of Lane Funding Association.‖ At trial, defendant moved for
judgments of acquittal on the theft charges, arguing that that LFA did not have a superior property right
to his because Lane, his codefendant, was acting as LFA‘s principal when she transferred the money to
him. The trial court denied the motion, defendant was convicted, and he appealed. Held: Affirmed. A
rational trier of fact could find that the trust was the owner of the funds. An ―owner‖ of property, for
purposes of the crime of theft, is ―any person who has a right to possession‖ that is ―superior to that of
the taker, obtainer or withholder.‖ Although Lane was the general manager, she was a separate entity
from the trust, and that she had no authority to permit defendant to appropriate funds from the trust. In
addition, a rational trier of fact could find that, even if defendant did not directly take funds from LFA,
he aided and abetted Lane in doing so; a jury could find that defendant helped bring money into LFA,
knowing that Lane was making unauthorized transfers of funds from LFA and intending to help her do
so.

TRAFFIC OFFENSES
     See also ―Driving Under the Influence of Intoxicants,‖ above.

         State v. Guerrero, 216 Or App 173, 171 P3d 392 (2007). Defendant was convicted of
misdemeanor DWS, under ORS 811.182(4). Under ORS 811.175 and 811.182, DWS is a violation
unless the suspension or revocation was for one of the specific bases listed in that provision. At trial,
the state offered a suspension packet that demonstrated—with its usual abbreviations ―SUSP 4/26/05
7/25/05 C/O RECK DR‖—that defendant‘s license was suspended as a result of a reckless-driving
conviction. Defendant argued that UCrJI No. 2712 – which requires the jurors to find that the defendant
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operated a motor vehicle while his or her ―driving privileges had been [suspended/revoked] by the Dept.
of Transportation or by a court,‖ but does not require a finding that the basis for the suspension or
revocation was of a type that authorized a conviction for the misdemeanor offense – was insufficient.
The trial court rejected his argument, and defendant was convicted at trial. Held: Reversed. The
instruction failed to require the jury to find that the suspension was for a basis that would elevate a DWS
violation offense to a misdemeanor offense.

         State v. Burns, 213 Or App 38, 159 P3d 1208 (2007), rev allowed, 344 Or 280 (2008).
Defendant was convicted of felony hit and run. Rather than filing a demurrer, and he moved for an arrest
of judgment contending that the indictment to allege a culpable mental state with regard to physical
injury resulting from the collision. Held: Affirmed. Because the charge tracked the language of the
statute, a person of common understanding could reasonably be expected to know what is intended.

TRIAL
     See also ―Evidence,‖ ―Mistrial,‖ and ―New-Trial Motions,‖ above.

        State v. McDonnell, 343 Or 3 Or 557, 176 P3d 1236 (2007). The court has broad discretion to
allow rebuttal evidence when it becomes relevant, even if it could have been offered in the case-in-chief,
as long as it does not exceed the scope of proper rebuttal.

        State v. Johnson, 342 Or 596, 157 P3d 198 (2007). On automatic review of the judgment of
conviction for aggravated murder and sentence of death. Held: Affirmed. [1] An officer did not
impermissibly comment on defendant‘s exercise of his right to remain silent by testifying that he had
hesitated before answering certain questions during interrogation; rather, ―far from testifying that
defendant remained silent in the face of questions, the officer testified only that defendant paused before
responding.‖ [2] The trial court properly ruled that if defendant offered expert testimony to compare
two sets of footprints that were found at the scene, he would be opening the door to the admission of
previously suppressed evidence that the state had examined defendant‘s boots and found that they were
consistent with one set of prints found at the scene. Defendant‘s proffered evidence would have created
an incorrect inference that the state had failed to test critical evidence; moreover, the court allowed
defendant to offer lay testimony that there were two types of prints, and the benefit of using expert
testimony would have been ―slight, if nonexistent.‖

         State v. Sullivan, 217 Or App 208, 174 P3d 1095 (2007). Under OEC 601, any person who is
capable of perception and of communicating those perceptions to others can be a witness. Under that
liberal standard, it is sufficient that the witness: (1) recognizes the requirement that he or she tell the
truth; (2) has personal knowledge and recollection of the events; and (3) can communicate that
recollection to a jury. The trial court‘s pretrial colloquy established that the victim met that standard,
even though, at trial, she testified selectively and refused to provide certain details.

        State v. Moller, 217 Or App 49, 174 P3d 1063 (2007). The prosecution made impermissible
comments on defendant‘s exercise of his constitutional rights by offering evidence and making
argument about defendant‘s refusal to consent to a search of his car. Defendant‘s denial at trial that he
lacked knowledge of the contents of his trunk did not open the door to evidence of his refusal to consent
to a search; the prohibition on comments on a defendant‘s exercise of a constitutional right exists
precisely because it might raise an inference that the defendant believes that he has something to hide.

        State v. Gonzales-Gutierrez, 216 Or App 97, 171 P3d 384 (2007), rev den, 344 Or 194 (2008).
Defendant was convicted of crimes arising from a murder-for-hire plot that he initiated from a county
jail while awaiting trial on other charges. At trial, the state offered tape recordings of several telephone
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calls (some in English and some in Spanish) in which defendant arranged the murders; the state also had
prepared unofficial transcripts to assist the jurors in understanding the tapes. Because defendant‘s
primary language is Spanish, the court appointed interpreters to interpret the court proceedings into
Spanish for defendant; however, because the interpreters were not certified to perform contemporaneous
interpretations of recorded conversations, the court allowed the prosecutor to play the tape of the
English calls, and allowed the interpreters to translate the unofficial transcripts into Spanish for
defendant. Regarding the Spanish-language recordings, the trial court allowed the prosecutor to offer
the testimony of a Spanish-speaking police officer regarding the contents of the conversations. The
prosecutor did not play the tapes themselves. On appeal, defendant argued that he was entitled to
contemporaneous interpretation of the English-speaking tapes. He also asserted that the trial court
erroneously admitted the Spanish-speaking officer‘s testimony regarding the contents of the Spanish-
language recordings without playing the recordings themselves. Held: Convictions affirmed. [1]
Neither the interpreter statute (ORS 45.275(1)(a)) nor the Due Process require contemporaneous
translation of the English-language calls. [2] Because defendant had the opportunity to challenge the
officer‘s rendition of the Spanish-language calls, the court did not err by admitting that testimony. [3]
To the extent that any statements on the tape by any nonparties were hearsay, they were insignificant
and any error in admitting them was harmless.

        State v. Ramsey, 215 Or App 434, 173 P3d 142 (2007), rev den, 344 Or 194 (2008).
[1] Evidence of future dangerousness is relevant in a non-capital penalty-phase proceeding to whether
―sufficient mitigating circumstances‖ warrant life with the possibility of parole. ―Indeed, a defendant‘s
dangerousness is perhaps one of the most cogent factors that one would expect a jury to consider in
making such a difficult decision.‖ [2] Victim-impact evidence is admissible in a non-capital penalty-
phase proceeding under ORS 163.150(3)(b) (2003). Under State v. George, 183 Or App 583, 592-93,
(2002), rev’d on other grounds, 337 Or 329 (2004), victim-impact evidence is admissible in a non-
capital penalty-phase proceeding even though the previous version of ORS 163.150(3)(b) did not
expressly authorize it. [3] The prosecution may make a rebuttal argument even without a burden of
proof.
        Note: ORS 163.150(3)(b) was amended in 2005 to expressly permit the admission of victim-
impact evidence in a non-capital sentencing proceeding.

        Quimby v. Hill, 213 Or 124, 159 P3d 1264, rev den, 343 Or 223 (2007). [1] The post-
conviction court correctly dismissed petitioner‘s claim that his counsel should have objected when the
prosecutor ―called her own witness a liar six times.‖ OEC 607 allowed the prosecutor to challenge the
credibility of the state‘s own witness, and the rule barring a witness from commenting on the credibility
of another witness ―does not prohibit a party from attacking the credibility of any witness.‖ [2] The
court also correctly dismissed petitioner‘s claim that his counsel did not object when the witnesses
―were not given a proper oath.‖ Because OEC 603 does not prescribe a particular oath, petitioner‘s
claim ―was insufficient to plea a denial of constitutional rights that would render petitioner‘s conviction
void under ORS 138.530(1)(a).

        State v. Magana, 212 Or App 553, 159 P3d 1163, rev den, 343 Or 363 (2007). Defendant
moved the court prior to trial to require the state to elect which evidence would support which charges in
his 51-count trial. The trial court denied the motion on the ground that the state had no obligation to
make an election until it rested, so defendant‘s motion was premature. Defendant did not renew the
motion after the state rested. Held: [1] A trial court‘s ruling regarding the timing of an election is
reviewed for abuse of discretion. [2] Although the trial court does have discretion, the trial court
―should compel an election when it appears that if the application is denied, the defendant will be
prejudiced or he will be prevented from properly making his defense.‖ Because defendant failed to
identify how he was prejudiced, the Court of Appeals could not determine that the trial court abused its
106

discretion.

        State v. Luers, 211 Or App 34, 153 P3d 688, aff’d on recon, 213 Or App 389, 160 P3d 1013
(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).

VENUE

        State v. Means, 213 Or App 268, 160 P3d 1001 (2007). Although the state introduced sufficient
evidence that defendant committed several of the charged offenses within the Portland city limits, the
evidence was not sufficient for those offenses that defendant committed where the city straddles three
different counties. Testimony that several fraudulent financial transactions occurred at Tri-Met, in
―Overlook, Portland,‖ was insufficient to establish that the offenses occurred within Multnomah County.
The fact that some jurors might be aware that there is a Portland neighborhood called Overlook within
Multnomah County was insufficient.

WEAPONS OFFENSES

        State v. Crawford, 215 Or App 544, 171 P3d 974 (2007), rev den, 344 Or 280 (2008).
Defendant was charged with and tried to a court on two counts of unlawful use of a weapon (UUW)
under ORS 166.220(1)(a) & (b) and another charge of being a felon in possession of a firearm. The trial
court entered separate convictions on all counts over defendant‘s objection that the UUW convictions
must merge. Held: Affirmed. The prohibitions on carrying and discharging firearms are directed at
separate and distinct legislative concerns; thus, they are ―separate statutory provisions‖ under
ORS 161.067(1). And because carrying and discharging are different elements, each provision includes
an element that the other does not.

        State v. Casey, 215 Or App 76, 168 P3d 315 (2007). To have constructive possession, a person
must ―knowingly exercise[] control of or the right to control‖ the firearm. Defendant, a felon,
knowingly exercised control over a firearm that belonged to someone else by insisting to officers that he
would retrieve it from the trailer for them and by walking toward the trailer to do that. ―It makes no
difference that defendant intended to retrieve the firearm for the officers.‖ Furthermore, the court noted,
defendant‘s attempt to prevent the officers from retrieving the firearm was a further exercise of control
by defendant over the firearm.

         State v. Hutchins, 214 Or App 260, 164 P3d 318 (2007), rev allowed, 344 Or 280 (2008). The
trial court correctly denied defendant‘s motion for a judgment of acquittal on the charge of being an
inmate in possession of a weapon under ORS 166.275 based on his possession of a hypodermic needle.
The definition of weapon includes any ―sharp instrument,‖ regardless of whether it was designed for use
as a weapon.

       State v. Boone, 213 Or App 242, 160 P3d 944, mod on recon, 215 Or App 428, 169 P3d 1274
(2007). Defendant helped a group of other known burglars commit burglaries of storage trailers. An
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accomplice, Monk, initially identified defendant as one of the burglars, but testified that defendant did
not participate in the burglaries. Defendant admitted to the police to being at the scene where the
burglaries were committed, to knowing that Monk was burglarizing the storage trailers and how Monk
broke into the trailers, to driving the stolen property off the site, and to helping Monk sand off the serial
numbers of the stolen items after the burglary. Held: [1] With respect to another series of burglaries that
Monk testified defendant did help commit, the state introduced sufficient evidence to corroborate
Monk‘s testimony, even though that evidence was slight and circumstantial. In defendant‘s situation,
the stolen items were found in defendant‘s residence, which was sufficient to corroborate Monk‘s
testimony. [2] With respect to a burglary where firearms were stolen from a safe, because the state
failed to introduce evidence that the guns were ―readily capable of use as a weapon,‖ defendant‘s
firearms-related convictions are reversed.

        City of Portland v. King, 211 Or App 540, 156 P3d 87, rev den, 343 Or 223 (2007). Defendant,
who was contacted by police when he came out of his house onto his front porch while carrying a
loaded shotgun, was convicted of violating Portland City Code 14A.60.010 (possessing a loaded firearm
in a public place). The ordinance defines ―public place‖ to include privately owned places ―to which the
general public has access.‖ Held: The general public has access to defendant‘s front porch, and the
ordinance does not require that defendant expressly invited the public into that area; thus, it was a
―public place.‖

WILDLIFE OFFENSES

         State v. Essex, 215 Or App 527, 170 P3d 1094 (2007). Defendant challenged his conviction for
discarding refuse in waters of the state in violation of ORS 164.775(2), which was based on his act of
biting through his in-use fishing line and allowing the line and tackle to fall into the Columbia River.
Defendant asserted that a fishing line is not ―refuse‖ within the meaning of the provision. Held:
Affirmed. The text and context of the provision show that the legislature intended its proscription to
apply broadly to conduct such as that in this case.

         State v. Watters, 211 Or App 628, 156 P3d 145, rev den, 343 Or 186 (2007). Defendants, who
are members of the Nez Perce Tribe, were arrested for killing two elk out of season on private property.
Relying on an 1855 treaty between the Nez Perce and the United States stating that the members of the
tribe may continue to hunt on any ―open and unclaimed land‖ that was part of their original hunting
grounds, they filed both a demurrer and a motion to dismiss on that ground, and on the grounds that the
federal courts and tribal courts had exclusive jurisdiction to interpret treaties and that the accusatory
instruments did not allege that the defendants were Nez Perce members and that the treaty was not
applicable. Held: Affirmed. [1] The state court has authority to prosecute crimes committed by Native
Americans off of the reservation; moreover, the state courts have authority to determine whether treaty
rights are applicable and whether they preclude state prosecution. [2] The state is not required to negate
defenses in an accusatory instrument, and thus was not required to allege defendants‘ status as tribal
members. [3] Even if the private property can be ―open and unclaimed,‖ the parties to the 1855 treaty
would not have considered the land at issue—which had signs of habitation, such as cabins, gates, roads,
drift fences, and signs at major points of entry—to be ―open and unclaimed.‖

				
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