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McLaughlin v. Wilson

In applying the standard for ORS 659A.030(1)(f) found in PSU Association of University Professors v. PSU, the court looked to whether “the employer’s policy would tend to dissuade employees from pursuing their protected rights because exercising those rights would result in a substantive difference in treatment.” PSU Association of University Professors v. PSU, 352 Or 697, 717 (2012).

• Employment Law

State v. Sperou

Under ORS 136.415, “[W]here a defendant denies that any crime occurred, references to the complaining witness as a ‘victim’ may undermine the presumption of defendant’s innocence because it assumed defendant’s guilt, a fact that is necessarily not proved until the jury finds the defendant guilty.” See also Jackson v. Virginia, 442 US 307, 315, 99 S Ct 2781 (1979).

• Evidence

White v. Premo

Miller v. Alabama prohibits a court from "imposing a life sentence without parole on a juvenile who commits homicide, unless the homicide reflects the juvenile's irreparable corruption rather than the transient immaturity of youth." Miller v. Alabama, 567 US 460, 479-80, 132 S Ct 2455, 183 L Ed 2d 407 (2012).

• Post-Conviction Relief

Jackson v. Franke

To prevail, Petitioner must show that there is ‘more than mere possibility’ that if the objection had been properly made his appellate counsel would have taken up the issue and ultimately presented it to this court in a petition for review, and that this court would have allowed review and reversed petitioner's conviction. Green v. Franke, 357 Or 301, 322 (2015).

• Post-Conviction Relief

State v. Arevalo

"For most misdemeanors, the sentence is entirely a matter of trial court discretion." State v. Rice, 114 Or App 101, 105 (1992).

• Criminal Procedure

State v. Rogers

To establish the mental state of knowingly, the State must show “when defendant made the relevant statements, [he/she/they] knew that [he/she/they] were creating a risk of public inconvenience, annoyance and alarm.” State v. Nelson, 367 or App 621, 626 (2014).

• Criminal Law

State v. Senin

A warrantless search for the purpose of discovering evidence of the crime of arrest "may be justified even if the defendant has been removed from the area in which an officer believes that evidence may be located" so long as the "evidence reasonably could be found in that area and the search is otherwise reasonable in time, scope, and intensity." State v. Krause, 281 Or App 143, 146 (2016)

• Criminal Procedure

Department of Human Resources v. C.L.M.

“If the bases for the juvenile court’s jurisdiction ‘cease to exist,’ then the juvenile court must terminate the warship and dismiss the case[.]"��Dept. of Human Services v. T.L., 279 Or App 673, 678, 379 P3d 741 (2016).

• Juvenile Law

State v. Longoria

In State v. Bistrika, the court overturned a conviction by a jury, because the failure to state a limitation on the jury instructions “probably created an erroneous impression of the law in the minds of the jurors which affected the outcome of this case.” State v. Bistrika, 262 Or App 385, 407, 324 P3d 584, rev den, 356 Or 397 (2014).

• Criminal Procedure

State v. Miller

"In order to establish that an individual ‘acquires’ a new residence, the state must prove that the person was ‘settled beyond just a transient visitor sojourn.’” ��State v. LaFountain, 299 Or App 311, 327 (2019).��

• Criminal Law

State v. Davis-McCoy

“The appellate court has no authority to review any part of a sentence resulting from a stipulated sentencing agreement between the state and the defendant." ORS 38.105(9).

• Sentencing

State v. Smith

“When the record does include a written waiver, and the parties dispute whether the waiver was effective for the convictions a defendant challenges on appeal, the question before us on plain-error review is whether the record allows competing inferences about the ‘defendant's intent when he signed (the document in the record).’ State v. Akers, 221 Or App 29, 188 P3d 417 (2008).”

• Criminal Procedure

State v. Brown

“In [State v.] Jackson, we explained that, when the trial court’s ruling was anticipatory and merely revealed the trial court’s inclinations, the ruling could not be challenged on appeal; counsel needed to do something more to give rise to a final appealable ruling, such as offer or object to specific evidence at trial. 68 Or App at 513.”

• Evidence

State v. Baker

“The corroborative evidence must connect the Defendant with the charged crime, however, and it must do so in a way that does not depend on reference to the accomplice’s testimony.” State v. Riley, 365 Or 44, 48, 443 P3d 610 (2019).

• Criminal Procedure

State v. Garrett

A waiver to the right to counsel may be valid if “under the totality of the circumstances, the record reflects that the defendant understood the risks of proceeding without counsel--that is, a defendant substantially appreciates the material risk of self-representation of his or her case.” State v. Borba, 290 Or App 787, 417 P3d 430 (2018).

• Constitutional Law

State v. Cunningham

"If the other requirements of ORS 137.542(2) are satisfied--that is, if a person holds a registry identification card and is sentenced to probation--the probation conditions related to the use of usable marijuana and specified cannabinoid products must comply with the statute.” State v. Jerscheid, 294 Or App 564, 566 (2018).

• Sentencing

O'Kain v. Landress

“In the absence of an express agreement, a putative client’s subjective belief that there is a lawyer-client relationship must be accompanied by objective facts that make that belief reasonable.” Lahn v. Vaisbort, 276 Or App 468, 477, 369 P3d 85 (2016)

• Civil Law

Lane County v. Employment Department

“The issue depends. . . on whether a reasonable person facing that prospect of discharge would consider the prospect so grave a circumstance that resigning was the only reasonable option. McDowell v. Employment Dept., 348 Or 605, 619 (2010).

• Administrative Law

State v. M.A.E.

"A person meets the 'basic needs' definition of a '[p]erson with mental illness' under ORS 426.005(1)(f)(B) if the person is unable to provide for his or her basic personal needs in a way that leaves that person at nonspeculative risk of 'serious physical harm' - meaning that the person's safe survival will be compromised - in the near future, even though that risk is not imminent." State v. M. A. E., 299 Or App 231, 240 (2019).

• Civil Commitment

Underhill v. Prock

In Morgan v. Hart, the court explained that "ORS 36.175 requires the circuit court to perform two acts with respect to a way of necessity claim: (1) to determine whether or not a need has been demonstrated for the granting of a way of necessity; and (2) to enter an order granting or denying the necessity. [Morgan v. Hart, 325 Or 348, 354 (1997)].”

• Property Law

Nelson v. Driver and Motor Vehicle Services

“A defendant's ‘mere acquiescence’ to police authority does not constitute voluntary consent.” State v. Stanley, 287 Or App 399, 407 (2017) (quoting State v. Berg, 223 Or App 387, 392 (2008)).��

• Criminal Procedure

State v. Brown

“The articulated facts need not support certainty that a suspect is engaged in criminal activity; rather, based on those specific facts, ‘a reviewing court must [be able to] conclude that the officer’s subjective belief could be true, as a matter of logic.’” State v. Fuller, 296 Or App 425, 429 (2017) quoting State v. Maciel-Figueroa, 361 Or 163, 184 (2017).

• Criminal Procedure

State v. Chapman

“Given . . . statutory and legislative history [of ORS 19.260(1)(a)(B)] we conclude that ordinary first-class mail was not what the legislature intended by the phrase. . . ‘mailed or dispatched by a class of delivery calculated to achieve within three calendar days . . ." The drafters intended to expand the categories of registered or certified mail to include expedited delivery services, but the drafters conspicuously refrained from substituting ordinary first-class mail.”

• Civil Procedure

State v. Savath

"The warrant must be sufficiently specific in describing the items to be seized and examined that the officers can, with reasonable effort, ascertain those items to a reasonable degree of certainty. . .[and] it must not authorize a search that is broader than the supporting affidavit supplies probable cause to justify.” State v. Mansor, 363 Or 185, 212 (2018).

• Criminal Procedure

Carter v. Waste Management Disposal Services of Oregon

In SAIF, the Court held that a medical expert’s “opinion is persuasive” but “in all events, a medical expert’s opinion that an increase of symptoms signifies an actual worsening of a particular compensable condition satisfies the actual worsening standard” as found in ORS 656.273. SAIF v. January, 166 Or App 620, 624 (2000).

• Workers Compensation

State v. K.R.S.

“ORS 161.067(3) does not refer to ‘crimes’ at all; rather, it refers to criminal conduct. Conduct that is prohibited by criminal statutes, such as the statute defining first-degree sexual abuse, is criminal in nature whether it is an adult who engages in hat conduct or, instead of a juvenile.”

• Juvenile Law

Smith v. Department of Corrections

“Policies that merely ‘undertake to explain the necessary requirements of [DOC’s] existing rules’ are not ‘rules’ as defined by ORS 183.310(9).”��Smith v. TRCI, 259 Or App 11, 17 (2013).

• Administrative Law

Dept. of Human Services v. M.R.

“To determine whether a child’s absence from a state was temporary, Oregon courts use a ‘totality of the circumstances’ test, which ‘looks at all the surrounding circumstances of a purported temporary absence, including the intent of the parties and duration of absence, to assess whether the absence should be treated as a temporary departure from a putative home state.’”��Schwartz and Battini, 289 Or App 332, 342-43 (2017).

• Juvenile Law

State v. Partain

“Evidentiary error is not presumed to be prejudicial, OEC 103(1), and we will affirm despite an evidentiary error if there is ‘little likelihood that the particular error affected the verdict.’” State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003).

• Evidence

State v. Hunt

“An adverse inference of guilt is likely when the testimony is not merely incidental and when nothing directs the jury’s focus away from it.”

• Criminal Procedure

State v. Williams

If the officer's questions or “request for consent was ‘reasonably related’ to the purpose of the detention, then the request did not extend the stop in violation of Article I, section 9.” State v. Pichardo, 360 Or 754, 759 (2017).

State v. Dodge

A suspect equivocally invokes their right to counsel, "when the suspect's statements or request is subject to more than one reasonable interpretation, one of which is that he or she is invoking the right to counsel. State v. Roberts, 291 Or App 124, 132, 418 P3d 41 (2018). "The question is whether a reasonable officer would have understood 'at least one plausible meaning' of the suspect's ambiguous statement or question 'to be that defendant was invoking the right to counsel.'" Id. at 133.

• Criminal Procedure

Schwartz and Battini

A “judge shall disqualify himself or herself in any proceedings in which *** [t]he judge has a personal bias or prejudice concerning a party***.” Oregon Code of Judicial Conduct, Rule 3.10(A)(1). “The rule governs both actual bias and perceived bias.” See In re Schneck, 318 Or 402, 407, 970 P2d 185 (1994).

• Professional Responsibility

State v. Y. B.

"Ordinarily, it is the appellant’s burden to 'furnish a sufficient record to demonstrate that the trial court []' erred." State v. Lavert, 164 Or App 280, 283, 991 P2d 1067 (1999). "And '[t]he burden of creating and providing a record rests with the party seeking to alter the decision.'” Foust v. American Standard Ins. Co., 189 Or App 125, 134 n 8, 74 P3d 1111 (2003).

• Appellate Procedure

State v. Endicott

“A conditional or restricted consent to enter land creates a privilege to do so only in so far as the condition or restriction is complied with.” Restatement (Second) of Torts § 168 (1965); Strandholm v. Barbey, 145 Or 427, 440-41, 26 P2d 46 (1933).

• Property Law

State v. T.M.

A past violent act “must provide a foundation to predict future dangerousness,” not merely have occurred, to support a determination that a person is dangerous to others due to a mental disorder. State v. L.R., 283 OR App 618, 625, 391 P3d 880 (2017).

• Civil Commitment

State v. Connolly

In determining whether a defendant had "control" over another inmates PIN, "[t]he state may properly rely on the circumstantial evidence in the record to conclude that a reasonable fact-finder could infer from that evidence that defendant had control over the PINs." See State v. F.R.S., 294 Or App 656, 660, 432 P3d 1149 (2018).

• Criminal Law

Hill v. City of Portland

"'Ripeness' refers to 'an aspect of the doctrine of justiciability, speficially, the requirement that there be an actual, as opposedto hypothetical, injury to the individiual invoking the judicial power.'" Beck v. City of Portland, 202 Or App 360, 366, 122 P3d 131 (2005).

• Land Use

M. A. B. v. Buell

Under FAPA, a petitioner seeking a restraining order has the burden of proving by a preponderance of the evidence that the respondent "(1) 'abused' petitioner in the 180 days preceding the filing of the petition, (2) presents an 'imminent danger of further abuse' to petitioner, and (3) 'represents a credible threat to the physical safety of the petitioner.'"��Kargol v. Kargol, 295 Or App 529, 532 (2019) (quoting ORS 107.718(1)).

• Family Abuse Prevention Act

State v. Taylor

There are five factors, Jarnagin factors, that the courts apply in deciding "whether the breath test results [are] admissible because defendant's decision to take the breath test broke the causal chain between the prior Article I, section 12 violation and his breath test results." State v. Jarnagin, 251 Or 703, 277 P3d 535 (2012).

• Criminal Procedure

Bice v. Oregon Board of Psychology

Remand is required "when an agency makes unidentified and unexplained changes to an order, including making additional factual findings, if those new findings change the basis of the order." See Robin v. Teacher Standards and Practices Comm., 291 Or App 379, 396-98, 421 P3d 385 (2018).

• Administrative Law

State v. Rhodes

When a trial court properly instructs the jury on the state’s burden to prove, beyond a reasonable doubt, all elements of the charged crime, including mental states, “any error in failing to give an instruction on the issue of partial responsibility is not prejudicial”. State v. Booth, 284 Or 615, 620 (1978).

• Criminal Law

Geddry v. Richardson

“Proposed initiatives may be evaluated before an election to determine whether they are of the type authorized by the Oregon Constitution to be placed on the ballot but may not be evaluated for ‘general questions of constitutionality, such as whether the proposed measure, if enacted, would violate some completely different portion of the constitution.’” Foster v. Clark, 309 Or 464, 469-70 (1990).

• Election Law

State v. Murillo-Bejar

Under OEC 403, "evidence of an expert's diagnosis of child sexual abuse is inadmissible . . . in the absence of physical evidence of abuse." State v. Southard, 347 Or 127, 218 P3d 104 (2009).

• Criminal Procedure

Emon Enterprises, LLC v. Kilcup

"In pursuing statutory remedies sequentially, as permitted by the statute, a landlord may pursue them ‘in a series,' ‘one right after the other often with small interviewing intervals.’” Webster’s Third New Int’l Dictionary 2071 (unabridged ed 2002).

Cervantes v. Department of Human Services

“In the absence of such an agreement or concession [by the parties] summary judgment is not permissible if the party opposing summary judgment demonstrates that there are factual disputes going to the merits of the challenged agency decision.” Bridgeview Vineyards, Inc. v. State Land Board, 258 Or App 351 (2013).

• Administrative Law

State v. R.J.C.

Under State v. E.A., to correct a judgment containing a scrivener’s error, the judgment should be vacated and remanded with regard to the basis for commitment. State v. E.A., 295 Or App ��265 (2018).

• Sentencing

City of Eugene v. Gannon

While a university campus may be open to the public, “it does not follow that the University must allow all members of the public on its premises regardless of their conduct.” Souders v. Lucero, 196 F.3d 1040, 1044( 9th Cir 1999)

• Criminal Law

Drown v. Persson

“To prevail on a post-conviction claim of inadequate assistance of counsel, the burden in on the petition to show, by preponderance of the evidence, facts demonstrating that trial counsel failed to exercise reasonable professional skill and judgment and that the petitioner suffered prejudice as a result.” Lambert v. Palmateer, 182 Or App 130, 135 (2003).

• Post-Conviction Relief

State v. Henderson

To establish that person has committed burglary, the state must prove that the defendant committed a trespass with the “intent to commit a particular crime in the building that he unlawfully entered.” State v. Chatelain, 347 Or 27, 283 (2009)

• Criminal Law

Sugiyama v. Arnold

“Discussion off the record of matters as to which issues on appeal could raise is ill-advised, either because no official record is made of the matters or because whatever record that is made often is summary in nature.” State v. Williams, 322 Or 620, 624 (1996).

• Civil Procedure

State v. Darmola

In Padilla v. Kentucky the Court announced that the obligation to accurately advise a defendant of the immigration consequences of a plea not collateral to the criminal defense attorney function, but rather was integral to the Sixth Amendment right to effective assistance of counsel. Padilla v. Kentucky, 559 US 356 (2010).

• Immigration

State v. Lively

When a statue has “several provisions or particulars[,] such construction is, it possible, to be adopted as will give effect to all.” ORS 174.010.

• Environmental Law

State v. Keith

In cases where the crimes were “‘committed and investigated at different times and places [, the court examines whether] the later occurring offenses were clearly precipitated by an earlier offense, [thus] rendering evidence of the initial offense ‘necessary to prove and to explain the context and motivation for the [later occurring] events.’” State v. Strouse, 276 ORS App 392, 402.

• Civil Procedure

State v. Mays

Statutory analysis of ORS 164.115(1) indicates that the legislature intended that when determining the value of the stolen item, market value would be the default method and replacement value would be the fallback method. To rely on replacement value as the fallback, the state must present evidence that is not possible to ascertain market value to a reasonable certainty by an investigation that is reasonable under the circumstances.

• Criminal Law

State v. Pryor

ORS 161.085(7) states that “‘Intentionally’ or ‘with intent,’ when used with respect to a result or to conduct described by a statute defining an offense, means that a person acts with a conscious objective to cause the result or to engage in the conduct so described.” ORS 161.085(7).

• Criminal Law

State v. Brown

To qualify as an expert through training alone, a person must prove that they "acquired certain habits of judgment based on experience or special observation’ that enables him or her to draw from the facts inferences that are uniquely beneficial to the jury” regarding a subject. Mall v. Horton, 292 Or App 319, 324 (2018).

• Evidence

Angel Medflight Worldwide Air Ambulance Service v. SAIF Corporation

Under ORS 183.482(8)(c), a factual finding is supported by substantial evidence so long as the “record, when viewed as a whole, would permit a reasonable person to make that finding.”

• Administrative Law

State v. Borders

ORS 137.540(2) grants a trial court discretion to impose any special conditions of probation “that are reasonably related to the crime of conviction or the needs of the probationer for the protection of the public or reformation of the probationer, or both”. ORS 137.540(2).

• Sentencing

State v. Taylor

There are two requirements under ORS 131.505(4) for a course of conduct to constitute a single criminal episode: (1) the conduct is continuous and uninterrupted; and (2) the conduct must be a part of a single criminal objective, which shall be assessed by the time, place, and circumstances in which the conduct is joined. State v. Witherspoon states that ORS 131.505(4) requires focus to be placed on the criminals overarching criminal objective during the criminal episode, and any additional objectives during that time constitute a criminal episode, not multiple.

• Criminal Law

State v. Nordholm

Issue preservation is a practical rule and close calls “ ‘turn on whether, given the particular record of a case, the court concludes that the policies underlying the rule have been sufficiently served.’ ” State v. �����Ƶins, 346 Or 333, 341, 211 P3d 262 (2009).