Chapter 136

 

      136.001

 

NOTES OF DECISIONS

 

      The failure to object to an instruction that five of six jurors could reach a verdict constituted a waiver, even though verdicts by jury of less than twelve must usually be unanimous. State v. Robinson, 22 Or App 340, 539 P2d 164 (1975)

 

      District Court rule, providing that failure to attend pretrial conference constituted waiver of jury trial, was insufficient to establish valid waiver where written request for jury trial had been made at arraignment and defendant had made no statement waiving right to jury. State v. Wiik, 31 Or App 571, 570 P2d 1021 (1977), Sup Ct review denied

 

      Where motion to withdraw waiver of jury trial was made on day of trial and was based on trial strategy only, motion was properly denied. State v. Villareall, 57 Or App 292, 644 P2d 614 (1982)

 

      Where no formal, written waiver of jury trial executed by defendant appeared in trial court file, reversal of conviction and remand for new trial were required. State v. Milstead, 57 Or App 658, 646 P2d 63 (1982), Sup Ct review denied

 

      Although attorney’s statements are normally binding on client, it would be improper to presume express, knowing waiver of consent to be tried without jury from defendant’s failure to object to attorney’s actions. State v. Cordray, 91 Or App 436, 755 P2d 735 (1988)

 

      Lack of written waiver of trial by jury was error apparent on face of record warranting new trial. State v. Kendall, 96 Or App 735, 773 P2d 1362 (1989), Sup Ct review denied

 

      Where purpose of voir dire examination was investigation, not persuasion and defendant’s counsel chose not to use two opportunities to question juror fully about views on minorities and criminal justice system, defendant’s right to trial by impartial jury was not violated. State v. Nefstad, 309 Or 523, 789 P2d 1326 (1990)

 

      Court refused to reverse conviction where defendant failed to execute written waiver of jury trial and rejected trial court’s offer to retry case to jury but sought “automatic reversal” after sentencing. State v. Lopez-Loaiza, 107 Or App 258, 812 P2d 1 (1991)

 

      Oral waiver of defendant’s right to jury trial is not sufficient. State v. Huntley, 112 Or App 22, 827 P2d 918 (1992)

 

      1997 amendments allowing state right to jury trial violate defendant’s right under section 11, Article I, Oregon Constitution, to waive jury trial. State v. Baker, 328 Or 355, 976 P2d 1132 (1999)

 

      Where defendant signs jury waiver form and verbally informs court that signature indicates waiver of right to jury, failure to check box on form is not plain error that requires appellate court review. State v. Jeanty, 231 Or App 341, 218 P3d 174 (2009), Sup Ct review denied

 

      136.005

 

NOTES OF DECISIONS

 

      Party to criminal action may obtain source lists and jury lists for purposes of challenging jury panel notwithstanding ORS 10.215 limitation on use of lists. State ex rel Click v. Brownhill, 331 Or 500, 15 P3d 990 (2000)

 

      136.030

 

NOTES OF DECISIONS

 

      Trial court is authorized to have jury determine whether state has proven existence of sentence enhancing factors, but trial court determines whether proven sentence enhancing factors justify imposition of departure sentence. State v. Upton, 339 Or 673, 125 P3d 713 (2005)

 

      136.040

 

NOTES OF DECISIONS

 

      Defendant can waive, by conduct, right to be present at felony trial. State v. Harris, 291 Or 179, 630 P2d 332 (1981)

 

      There was sufficient information from which trial judge could have concluded, at the time, that defendant voluntarily absented himself from trial and thereby waived his right to be present. State v. Harris, 291 Or 179, 630 P2d 332 (1981)

 

      This section does not prohibit court, in exercise of its discretion, from ordering defendant to be present at trial. State v. Ferguson, 84 Or App 565, 735 P2d 3 (1987)

 

      Where court knew only that defendant was not present for trial and that defendant’s lawyer said that he had told defendant of time and place of trial and where court did not permit defendant’s lawyer to attempt to produce defendant or to discover why he failed to appear, court erred in denying defendant opportunity to appear at trial. State v. Turner, 99 Or App 176, 781 P2d 404 (1989)

 

      Where defendant validly waives right to be present, trial may proceed even if both defendant and counsel are absent and whether or not defendant is represented by counsel. State v. Skillstad, 204 Or App 241, 129 P3d 232 (2006), Sup Ct review denied

 

      136.050

 

NOTES OF DECISIONS

 

      Requirement applies to separately defined crimes that are functional equivalent of different degrees. State v. McCoy, 17 Or App 155, 521 P2d 1074 (1974), aff’d 270 Or 340, 527 P2d 725 (1974)

 

      136.060

 

NOTES OF DECISIONS

 

      Trial court’s denial of defendant’s motion to sever case from that of codefendant can be outside court’s discretion only when reason for granting motion is compelling. State v. Tyson, 72 Or App 140, 694 P2d 1003 (1985), Sup Ct review denied

 

      Where this section authorizing joint trials does not provide for severance on showing of prejudice, codefendant’s confession was edited to omit any reference to defendant and jury was instructed not to consider confession against defendant, joint trial and introduction of codefendant’s confession did not violate applicable statute. State v. Umphrey, 100 Or App 433, 786 P2d 1279 (1990), Sup Ct review denied

 

      Redacted out-of-court statement of codefendant did not make joint trial inappropriate where statement implicated unidentified second perpetrator and identity of defendant as second perpetrator was established through other testimony. State v. Taylor, 125 Or App 636, 866 P2d 504 (1994), Sup Ct review denied

 

      Codefendants’ assertion of mutually exclusive defenses does not require severance. State v. Turner, 153 Or App 66, 956 P2d 215 (1998), Sup Ct review denied

 

      “Clearly inappropriate” standard authorizes court to permit separate trial for jointly charged defendants when information available to trial court in advance of trial is such that court can reasonably predict joint trial would lead to error resulting in mistrial or later reversal by appellate court, and evidence that one defendant held fervent antigovernment sentiments and harbored motive to commit crime of bank robbery did not rise to “clearly inappropriate” standard. State v. Turnidge (S059155), 359 Or 364, 374 P3d 853 (2016)

 

      136.070

 

NOTES OF DECISIONS

 

      This section requires that a motion for continuance by defendant be accompanied by an affidavit showing sufficient cause which shall first be filed with the clerk, and there is nothing for an appellate court to review in the absence of such a showing made prior to trial. State v. Longoria, 17 Or App 1, 520 P2d 912 (1974), Sup Ct review denied

 

      Denial of defendant’s motion for continuance was not abuse of discretion where: (1) Absence of hospitalized witness which would be expected to weaken state’s case not shown to be to defendant’s disadvantage; and (2) no showing made that absent alibi witness would add to defendant’s case which had already produced at least six other alibi witnesses. State v. Longoria, 17 Or App 1, 520 P2d 912 (1974), Sup Ct review denied

 

      Defendant’s motion which was conclusory and not supported by affidavit did not satisfy this section. State v. Reese, 25 Or App 231, 548 P2d 998 (1976)

 

      It was abuse of discretion for court to refuse to grant state five-month continuance until indispensable witness returned from military duty, especially where defendant had already caused delay of over three months. State v. Weitzel, 31 Or App 1093, 572 P2d 334 (1977)

 

      136.110

 

NOTES OF DECISIONS

 

      Upon defendant’s plea of guilty at time of trial, court had discretion under this section to order confinement and, despite court’s failure to exercise discretion, defendant’s detention was not illegal where sentence of up to five years was inevitable and would make flight attractive. Owens v. Duryee, 285 Or 75, 589 P2d 1115 (1979)

 

      136.120

 

NOTES OF DECISIONS

 

      Refusal to proceed without evidence ruled inadmissible was not a refusal without “sufficient cause.” State v. Hoare, 20 Or App 439, 532 P2d 240 (1975)

 

      Dismissal was the proper remedy where a continuance was denied and the state was not ready to proceed. State v. Martin, 25 Or App 517, 550 P2d 462 (1976)

 

      It was abuse of discretion for court to refuse to grant state five-month continuance until indispensable witness returned from military duty, especially where defendant had already caused delay of over three months. State v. Weitzel, 31 Or App 1093, 572 P2d 334 (1977)

 

      Dismissal of indictment was permissible act of discretion where state had adequate opportunity but failed to locate alleged victim, and there was no prospect in foreseeable future that defendant could be brought to trial. State v. Love, 38 Or App 459, 590 P2d 741 (1979), Sup Ct review denied

 

      Where trial judge continued case until 4:15 because state’s witness had not arrived, and witness arrived at 4:18 but case was not called for trial until 4:20, court had no authority to dismiss charges. State v. Harris, 42 Or App 845, 601 P2d 892 (1979)

 

      Where state requests postponement for purpose of seeking first appellate review of important legal issue, dismissal with prejudice is abuse of discretion absent showing that postponement would result in substantial prejudice to defendant. State v. Hewitt, 162 Or App 47, 985 P2d 884 (1999)

 

      Factors to be considered in determining whether prosecutor has shown sufficient cause for postponing trial are: 1) reason for seeking postponement; 2) whether prosecutor’s conduct constitutes inexcusable neglect; 3) magnitude of interests at stake; 4) whether defendant would suffer actual prejudice; and 5) whether defendant’s right to speedy trial would be compromised. State v. Parliament, 164 Or App 707, 995 P2d 544 (2000)

 

      In deciding whether to dismiss case with prejudice, trial court must consider reason state is unable to try charge and effect court’s dismissal decision will have on defendant and public. State v. Sandbach, 175 Or App 329, 27 P3d 1107 (2001), Sup Ct review denied

 

      Where trial court has suppressed evidence and dismissed case, state cannot successfully appeal suppression order unless state also successfully appeals dismissal. State v. Ferguson, 197 Or App 384, 105 P3d 872 (2005), modified 201 Or App 261, 119 P3d 794 (2005), Sup Ct review denied

 

      Whether prosecutor has shown reasons that objectively justify postponement of trial is determination of law that must precede discretionary determination regarding granting of dismissal. State v. Shaw, 338 Or 586, 113 P3d 898 (2005); State v. Ferguson, 201 Or App 261, 119 P3d 794 (2005), Sup Ct review denied

 

      136.130

 

NOTE: Repealed as of January 1, 2018

 

 

NOTES OF DECISIONS

 

      This section is a statutory acknowledgment of and mechanism for the authority of the courts to effectuate the speedy trial clause of the Ore. Const., Art. I, §10. State v. Williams, 17 Or App 43, 520 P2d 462 (1974)

 

      Dismissal of indictment (charging rape, kidnapping and assault) with prejudice was abuse of discretion where delay caused by state’s inability to locate victim was neither lengthy nor due to inexcusable neglect. State v. Love, 38 Or App 459, 590 P2d 741 (1979), Sup Ct review denied

 

      Trial court order of dismissal in criminal action was effective when made rather than when filed and entered and thus effectively dismissed acquisitory instrument against defendant and any subsequent attempt to prosecute for same offense was barred by this section. State v. Gatzke, 80 Or App 21, 720 P2d 1313 (1986)

 

      Where unavailability of state’s witness was not caused by inexcusable neglect, defendant was not prejudiced and his right to speedy trial was protected there was no substantial reason to dismiss with prejudice and doing so was abuse of discretion. State v. Daniel, 98 Or App 695, 780 P2d 784 (1989), Sup Ct review denied

 

      This section empowers trial judge to give dismissal of felony or Class A misdemeanor charge double jeopardy effect by entering judgment of acquittal; overruling State v. Hansen, 37 Or App 461, 587 P2d 508 (1978). State v. Carrillo, 101 Or App 247, 790 P2d 1159 (1990), aff’d on other grounds, 311 Or 61, 84 P2d 1161 (1990)

 

      Dismissal of first complaint against defendants charging unlawful sound recording, Class B misdemeanor, does not bar subsequent prosecution for different crime arising out of same criminal episode. State v. Ibkheitan, 115 Or App 415, 838 P2d 1091 (1992)

 

      Factors to be considered by trial court in determining whether dismissal shall be with prejudice are whether: 1) prosecutor’s conduct constitutes inexcusable neglect; 2) defendant would suffer actual prejudice due to delay; and 3) defendant’s right to speedy trial would be compromised by delay. State v. Gunder, 154 Or App 332, 964 P2d 265 (1998)

 

      Whether dismissal with prejudice is merited depends on trial court’s assessment of total strength of one or more considered factors as determined on individual basis. State v. Gunder, 154 Or App 332, 964 P2d 265 (1998)

 

      Appeal of dismissal order does not preclude state from pursuing prosecution for same offense through separate proceeding. State v. Thayer, 158 Or App 440, 974 P2d 699 (1999)

 

      Right of state to appeal from order of dismissal includes right to appeal from judgment of acquittal entered pursuant to order of dismissal. State v. Shaw, 338 Or 586, 113 P3d 898 (2005)

 

      136.210 to 136.280

 

COMPLETED CITATIONS: State v. Anderson, 6 Or App 22, 485 P2d 446 (1971), Sup Ct review denied

 

      136.210

 

NOTES OF DECISIONS

 

      Failure to show on record criminal defendant’s consent to proceed with less than 12 jurors was error, and appellate court could not remand for determination of whether defendant consented “off the record.” State v. Lutz, 306 Or 499, 760 P2d 249 (1988)

 

      Defendant’s affirmative consent on record is required before trial can proceed with fewer than 12 persons on jury. State v. Fierro, 107 Or App 569, 813 P2d 57 (1991)

 

LAW REVIEW CITATIONS: 53 OLR 106 (1973)

 

      136.220

 

NOTES OF DECISIONS

 

      Because complainant is “person” and state is not “person,” state is not complainant referred to in this section. State v. Rogers, 313 Or 356, 836 P2d 1308 (1992)

 

      136.230

 

NOTES OF DECISIONS

 

      Where defendant requests examination of 1986 Victims’ Rights Bill and argues that right to fair trial is violated by combination of reduction in number of peremptory challenges and less than unanimous jury verdict but does not allege he was prejudiced in any way by actual procedures and record does not show he exercised any peremptory challenges or was convicted by less than unanimous verdict, arguments were abstract and court unable to address. State v. Moore, 97 Or App 265, 775 P2d 906 (1989)

 

      Where prosecutor explained reliance on prospective juror’s demeanor and staff reports that reflected prospective juror’s past problems with circumstantial evidence and aggressiveness toward state, explanation for peremptory challenge was race-neutral. State v. Henderson, 315 Or 1, 843 P2d 859 (1992)

 

      136.240

 

NOTES OF DECISIONS

 

      It was not abuse of discretion for court to refuse to allow defense counsel to exercise peremptory challenge in untimely manner. State v. Mulvihill, 35 Or App 627, 582 P2d 43 (1978)

 

      136.250

 

NOTES OF DECISIONS

 

      Non-severability of peremptory challenge where “several defendants” are tried together applies only where number of defendants exceeds two. State v. Scott, 135 Or App 319, 899 P2d 697 (1995), Sup Ct review denied

 

      136.290

 

NOTES OF DECISIONS

 

      This section is clear and unambiguous in its terms and the defendant’s trial must be commenced within 60 days of his arrest. Price v. Zarbano, 265 Or 126, 508 P2d 182 (1973)

 

      If defendant is eligible for release under statutory scheme, release of defendant is mandatory and court has no discretion. Collins v. Foster, 299 Or 90, 698 P2d 953 (1985)

 

      Terms in section providing that court shall release upon whatever additional reasonable terms and condition court deems just do not include setting security amount which person in custody cannot meet. Collins v. Foster, 299 Or 90, 698 P2d 953 (1985)

 

      Language of this statute contains objective criteria and requires mandatory action that creates liberty interest in being free from incarceration without prompt retrial and trial procedures. Oviatt v. Pearce, 954 F2d 1470 (1992)

 

      Sixty day time limit for pretrial custody does not restart when defendant is released from and subsequently returned to custody. State v. McDowell, 352 Or 27, 279 P3d 198 (2012)

 

      136.295

 

NOTES OF DECISIONS

 

      Person charged with murder is eligible for release subject to ORS 135.240 restriction on availability of bail where proof is evident or presumption strong that person is guilty. Collins v. Foster, 299 Or 90, 698 P2d 953 (1985)

 

      Exception to ORS 136.290 sixty-day release requirement when delay results from motion filed by accused, does not apply to withdrawal motion filed by counsel based on counsel’s conflict of interest. Brophy v. Burks, 307 Or 62, 762 P2d 1017 (1988)

 

      136.310

 

NOTES OF DECISIONS

 

      In jury trial, court must inform jury of facts judicially noted. State v. Hastings, 31 Or App 981, 571 P2d 1284 (1977)

 

      136.320

 

NOTES OF DECISIONS

 

      Use of a charge to a deadlocked jury, urging it to make a decision, is not approved. State v. Marsh, 260 Or 416, 490 P2d 491 (1971), cert. denied, 406 US 974

 

      Concepts of “intent” and “knowledge” are distinct under ORS 161.085 and instruction worded in terms of intent should not be given in prosecution for crime where indictment alleges knowledge. State v. Francis, 284 Or 621, 588 P2d 611 (1978)

 

      Trial court is authorized to have jury determine whether state has proven existence of sentence enhancing factors. State v. Upton, 339 Or 673, 125 P3d 713 (2005)

 

      136.330

 

NOTES OF DECISIONS

 

      A motion for mistrial is addressed to the sound discretion of the trial court, and its exercise will not be upset except for a clear abuse. State v. Poole, 11 Or App 55, 500 P2d 726 (1972), Sup Ct review denied

 

      Where the trial judge clearly and emphatically instructed the jury to disregard an improper question and give a further cautionary instruction at the end of the trial he did not abuse his discretion in denying a motion for a mistrial. State v. Poole, 11 Or App 55, 500 P2d 726 (1972), Sup Ct review denied

 

      Provisions of [former] ORS 17.320 were applicable in criminal action. State v. Greene, 36 Or App 281, 583 P2d 1171 (1978), Sup Ct review denied

 

      Where defendant appeals conviction for driving under influence of intoxicants and assigns error to trial court’s admission of statements made to police, failure to take judicial notice of certain facts and instruction to jury, trial court did not err in admitting statements that defendant had driven earlier that evening, committed harmless error in failure to take notice that Eskalith comes in various size capsules and since record relating to jury instruction was not preserved, Appeals Court unable to review whether trial court sufficiently apprised jury of grounds for exception. State v. Kennedy, 95 Or App 663, 771 P2d 281 (1989)

 

      Considerations of orderly procedure and fairness require defendant who desires lesser included jury instruction to request it before beginning of closing arguments. State v. Radford, 101 Or App 665, 793 P2d 324 (1990), Sup Ct review denied

 

      Trial court’s error in failing to instruct jury on causal connection between murder and victim’s status as witness in criminal proceeding was apparent error of law appearing on face of record, and justified court’s consideration despite defense counsel’s failure to preserve error at trial or to assign error on appeal. State v. Brown, 310 Or 347, 800 P2d 259 (1990)

 

      Instruction that jury could consider certain evidence was permissible where instruction did not suggest that jury draw particular inference from evidence. State v. Blanchard, 165 Or App 127, 995 P2d 1200 (2000), Sup Ct review denied

 

      136.415

 

      See also annotations under ORS 136.520 in permanent edition.

 

NOTES OF DECISIONS

 

      The proper test to be applied in reviewing a case where the state relies upon circumstantial evidence is this: Would a reasonable person, based upon all the evidence adduced in the case, be warranted in finding beyond a reasonable doubt that the defendant committed the offense charged. State v. Wright, 12 Or App 73, 504 P2d 1065 (1973)

 

      Circumstantial evidence, like direct evidence, must indicate guilt to the extent that there is no reasonable doubt of that conclusion. State v. Krummacher, 269 Or 125, 523 P2d 1009 (1974)

 

      Circumstantial evidence is sufficient to establish the elements of a crime, and the jury is entitled to draw all reasonable inferences capable of being drawn from such evidence. State v. Larson, 18 Or App 239, 524 P2d 1236 (1974)

 

      An instruction that circumstantial evidence must be inconsistent with any reasonable theory of innocence is not required when the case involves circumstantial evidence, but is merely one way of instructing as to reasonable doubt. State v. Draves, 18 Or App 248, 524 P2d 1225 (1974), Sup Ct review denied

 

      An instruction that circumstantial evidence must be inconsistent with any reasonable theory of defendant’s innocence no longer correctly states the Oregon rule. State v. Johnson, 18 Or App 502, 525 P2d 1077 (1974)

 

      Every rational hypothesis other than guilt need not be excluded in order for the case to be submitted to the jury. State v. Gross, 19 Or App 187, 526 P2d 1050 (1974)

 

      Contempt proceedings are “criminal actions” entitling defendant to rights set forth in this section. State ex rel Hathaway v. Hart, 70 Or App 541, 690 P2d 514 (1984), aff’d 300 Or 231, 708 P2d 1137 (1985)

 

      Use of rebuttable presumption against criminal defendant violates right to not be convicted except on proof beyond reasonable doubt. State v. Rainey, 298 Or 459, 693 P2d 635 (1984)

 

      136.420

 

      See annotations under ORS 136.530 in permanent edition.

 

      136.425

 

      See also annotations under ORS 136.540 in permanent edition.

 

NOTES OF DECISIONS

 

In general

 

      While the Miranda warning given at the beginning of the interrogation was incomplete in that it did not inform the defendant that a lawyer would be provided for him if he were without funds, he had been given two complete warnings within a relatively short time of the interrogation so that repeated warnings, while desirable, were not absolutely necessary. State v. Garrison, 16 Or App 588, 519 P2d 1295 (1974), Sup Ct review denied

 

      Substance, rather than form, is the controlling element as to question whether the Miranda warnings were correctly given. State v. Bopp, 16 Or App 604, 519 P2d 1277 (1974)

 

      In laying the foundation for introduction of a confession, the state may not offer evidence of the fact, results or details of a previous polygraph examination; but if, when the confession is offered in evidence, the defendant objects on grounds that it was not voluntary because of a preceding polygraph examination, the state may then offer in evidence both the fact that the examination was given and such details thereof, including evidence which may reveal the results thereof, which may be relevant to voluntariness of the confession. State v. Green, 271 Or 153, 531 P2d 245 (1975)

 

      “Confession” for purpose of this section is statement made after commission of alleged crime for purpose of acknowledging that speaker is guilty of some criminal offense. State v. Manzella, 306 Or 303, 759 P2d 1078 (1988)

 

Admissibility

 

      Volunteered statements not the result of any questioning or inducement are admissible. State v. Myers, 6 Or App 219, 487 P2d 663 (1971)

 

      When the undisputed evidence is that a person of normal intelligence and understanding admits receiving and understanding the requisite advice and concedes that all statements made thereafter were completely voluntary, those statements are admissible. State v. Myers, 6 Or App 219, 487 P2d 663 (1971)

 

      Custodial interrogation is not limited to questioning within the confines of the police station. State v. Myers, 6 Or App 219, 487 P2d 663 (1971)

 

      A confession is not rendered inadmissible because given after a polygraph examination, if it is shown to have been given freely and voluntarily; but the examination may be administered in a manner constituting physical or psychological coercion, thereby rendering the confession involuntary. State v. Green, 271 Or 153, 531 P2d 245 (1975); State v. Clifton, 271 Or 177, 531 P2d 256 (1975)

 

      Incriminating admissions, made by defendant to examiner during pretest interview prior to polygraph examination, were inadmissible where court order granting polygraph examination stipulated that results would be provided only to defense counsel and defendant reasonably believed that statements made during such examination would be secret and would be disclosed only to his attorneys. State v. Thompson, 30 Or App 379, 567 P2d 132 (1977), Sup Ct review denied

 

      Where defendant confessed after officer explained he could either take defendant into custody or issue citation, but before officer suggested charge may be reduced to misdemeanor, confession was not coerced or given in exchange for promise of leniency. State v. Landers, 101 Or App 293, 790 P2d 1161 (1990), Sup Ct review denied

 

      Where defendant’s confessions of prior crimes were highly relevant to jury’s consideration of questions under ORS 163.150, confessions, even if uncorroborated, were properly admitted during penalty phase of trial. State v. Montez, 309 Or 564, 789 P2d 1352 (1990)

 

      If promise of leniency does not relate to charge that is subject of defendant’s response, voluntariness of response depends on whether defendant understood and reasonably relied on promise. State v. Goree, 151 Or App 621, 950 P2d 919 (1997), Sup Ct review denied

 

      Limitation on evidence of confession applies to confession induced by promise of leniency. State v. Powell, 242 Or App 645, 256 P3d 185 (2011), aff’d 352 Or 210, 282 P3d 845 (2012)

 

Preliminary determination of admissibility

 

      Violation of statutes concerning handling of juveniles and presence or absence of their parents are not determinative, but are factors to be considered, in determining whether juvenile’s confession is voluntary. State v. Raiford, 7 Or App 202, 490 P2d 206 (1971), Sup Ct review denied

 

      Evidence relevant to voluntariness of confession should be heard by court in absence of the jury. State v. Blackford, 16 Or App 217, 517 P2d 1196 (1974)

 

      The defendant’s answers given during the custodial interrogation without the Miranda warning were not admissible. State v. Gill, 24 Or App 541, 546 P2d 786 (1976)

 

      Where defendant made both equivocal and affirmative statements in reference to videotape relating events of alleged crime and only equivocal statements were made in response to particular statements on videotape, trial court properly ruled videotape and defendants responses to it inadmissible under this section. State v. Haynes, 49 Or App 89, 619 P2d 889 (1980)

 

Involuntary confessions

 

      Although the defendant was removed in place from his original interrogation and Miranda warnings were then given by officers who lacked knowledge of defendant’s previously denied request for an attorney, a time interval of only six hours between his original incriminating remarks and the questioning by the officers was insufficient to dissipate the effect of the tainted admissions made during the original interrogation. State v. Garrison, 16 Or App 588, 519 P2d 1295 (1974), Sup Ct review denied

 

      Once the request for an attorney is made it is the duty of the officer to immediately discontinue the questioning, and continued questioning by the officer is in violation of the Miranda exclusionary rule so that statements made thereafter must be suppressed. State v. Garrison, 16 Or App 588, 519 P2d 1295 (1974), Sup Ct review denied

 

      Prohibition against introduction of involuntary confession applies to confession induced by private party. State v. Powell, 242 Or App 645, 256 P3d 185 (2011), aff’d 352 Or 210, 282 P3d 845 (2012)

 

Confessions not involuntary

 

      Officers did not coerce defendant’s turning over contraband to them nor his incriminating statement where officers threatened what would have been an authorized arrest of his companion and defendant chose to show them the contraband in the hope or belief that they would not arrest the companion. State v. Bopp, 16 Or App 604, 519 P2d 1277 (1974)

 

      Administration of a polygraph examination did not render a later confession involuntary. State v. Clifton, 271 Or 177, 531 P2d 256 (1975)

 

      The officer’s statements to defendant could be distilled into a mere admonition to tell the truth and did not constitute coercion. State v. Rollwage, 21 Or App 48, 533 P2d 831 (1975)

 

      Where police officers’ comments about releasing defendant into hostile environment and references to threats to defendant by parties to crime or by members of the community were isolated comments during lengthy investigation, defendant’s statements were not coerced. State v. Foster, 303 Or 518, 739 P2d 1032 (1987)

 

      Where confession to a crime is elicited by promise of immunity with respect to other crimes, confession is not considered involuntary as matter of law. State v. Aguilar, 133 Or App 304, 891 P2d 668 (1995)

 

Declaration or act of another

 

      This section clearly requires the exclusion of evidence of an accusation by an accomplice made in the presence of police and the defendant where the defendant simply stands silent when the accusation is made. State v. Van Hooser, 11 Or App 146, 501 P2d 78 (1972), aff’d 266 Or 19, 511 P2d 359 (1973)

 

Corroboration

 

      Corroboration of confession need only establish occurrence of crime, not that crime was committed by defendant. State v. Shoemaker, 8 Or App 402, 495 P2d 43 (1972)

 

      Circumstances that defendant was intoxicated, that defendant’s automobile had flat tire, and that tracks of vehicle in snow indicated that vehicle had proceeded from public highway onto private lawn, were sufficient corroboration to permit admission of defendant’s statement that he had driven vehicle onto lawn. State v. Smith, 31 Or App 321, 570 P2d 409 (1977)

 

      State failed to corroborate confession of attempted arson with evidence showing that on day following attempted arson house in question burned; evidence of second day’s burning would tend to prove defendant engaged in continuing course of conduct, but it did not provide independent corroborative evidence of alleged attempted arson of previous day. State v. Swearengin, 32 Or App 349, 573 P2d 362 (1978)

 

      In prosecution for driving under influence of intoxicants, where defendant admitted he had been driving, fact that he was registered owner of truck and that he raised no objection to officer’s assumption that he was driver constituted sufficient circumstantial corroboration of his admissions. State v. Campbell, 44 Or App 3, 604 P2d 1266 (1980), Sup Ct review denied

 

      “Some proof” means that there is enough evidence from which jury may draw inference that tends to establish or prove that a crime has been committed. State v. Lerch, 296 Or 377, 677 P2d 678 (1984); State v. Anderson, 103 Or App 436, 797 P2d 1072 (1990), Sup Ct review denied; State v. Hessel, 117 Or App 113, 844 P2d 209 (1992), Sup Ct review denied; State ex rel Juv. Dept. v. Taylor, 119 Or App 276, 850 P2d 390 (1993), Sup Ct review denied

 

      Defendant’s unexplained possession of large amount of money soon after killing is sufficient circumstantial evidence under this section to corroborate confession of murder for hire. State v. Oslund, 71 Or App 701, 693 P2d 1354 (1984), Sup Ct review denied

 

      Where defendant volunteered information about automobile accident, stated that he had been driving and that he was driving in violation of restrictions placed on his driver license, provided his driver license number, made statement about cause of accident and statements regarding restrictions on license, such evidence, in prosecution for driving while suspended, was “some proof” other than defendant’s confession which corroborated confession that he had been driving. State v. Manzella, 88 Or App 258, 744 P2d 1321 (1987), aff’d 306 Or 303, 759 P2d 1078 (1988)

 

      This section does not require corroboration of defendant’s admissions or other statements that do not constitute confessions. State v. Manzella, 306 Or 303, 759 P2d 1078 (1988)

 

      “Other proof” that crime has been committed must be sufficient to permit reasonable inference that specific crime to which defendant confessed actually occurred. State v. Fry, 180 Or App 237, 42 P3d 369 (2002)

 

      Where apology to victim was written while in police custody, immediately after confession and at urging of police, apology was for purpose of acknowledging guilt and therefore not independent corroboration of confession. State v. Muzzy, 190 Or App 306, 79 P3d 324 (2003), Sup Ct review denied

 

      Evidence independent of confession must tend to prove: 1) injury or harm specified in crime occurred; and 2) injury or harm was caused by someone’s criminal activity. State v. Simons, 214 Or App 675, 167 P3d 476 (2007), Sup Ct review denied; State v. Delp, 218 Or App 17, 178 P3d 259 (2008), Sup Ct review denied

 

      Where defendant confesses to second degree burglary, evidence of unlawful entry into building is insufficient to corroborate confession. State v. Chatelain, 220 Or App 487, 188 P3d 325 (2008), aff’d 347 Or 278, 220 P3d 41 (2009)

 

      Defendant’s repetition of confession is not “some other proof” that crime has been committed. State v. Kelley, 239 Or App 266, 243 P3d 1195 (2010), Sup Ct review denied

 

      Requirement for corroboration of confession applies to confession induced by private party. State v. Powell, 242 Or App 645, 256 P3d 185 (2011), aff’d 352 Or 210, 282 P3d 845 (2012)

 

COMPLETED CITATIONS: State v. Washington, 5 Or App 347, 483 P2d 465 (1971), Sup Ct review denied; State v. Gairson, 5 Or App 464, 484 P2d 854 (1971), Sup Ct review denied; State v. Patterson, 5 Or App 438, 485 P2d 429 (1971), Sup Ct review denied; State v. Brewton, 238 Or 590, 395 P2d 874 (1974); distinguished in State v. Green, 271 Or 153, 531 P2d 245 (1975)

 

      136.430

 

      See also annotations under ORS 136.510 in permanent edition.

 

LAW REVIEW CITATIONS: 51 OLR 358 (1972); 10 WLJ 11 (1973)

 

      136.432

 

NOTES OF DECISIONS

 

      This section requires admission of evidence obtained through unlawful expansion of traffic stop in violation of ORS 810.410. State v. Arabzadeh, 162 Or App 423, 986 P2d 736 (1999)

 

      Evidence is “otherwise admissible evidence” if statute does not expressly make improperly obtained evidence inadmissible. State v. Thompson-Seed, 162 Or App 483, 986 P2d 732 (1999)

 

      Application of statute to alter rules of evidence for offenses committed prior to June 12, 1997, violates constitutional prohibition against ex post facto laws. State v. Fugate, 332 Or 195, 26 P3d 802 (2001)

 

      136.435

 

      See annotations under ORS 136.545 in permanent edition.

 

      136.440

 

      See also annotations under ORS 136.550 in permanent edition.

 

NOTES OF DECISIONS

 

      This section does not make evidence of apparently innocent post-crime association inadmissible but merely requires additional corroboration. State v. Marling, 19 Or App 811, 529 P2d 957 (1974), Sup Ct review denied

 

      Testimony in murder trial by witnesses other than accomplice, that they had cooperated with defendant in formulating plans to dispose of victim but had disassociated themselves from attempts to carry out those plans, was sufficient corroboration of accomplice’s testimony. State v. Addicks, 30 Or App 249, 566 P2d 1212 (1977), Sup Ct review denied

 

      Slingshot found on defendant’s property and BBs found in defendant’s motel room were sufficient items to connect defendant with commission of offense under this section and to provide corroboration of accomplice testimony. State v. Schoen, 34 Or App 105, 578 P2d 429 (1978), Sup Ct review denied

 

      In trial for conspiracy to murder, evidence that, inter alia, defendant had vouched for hired killer and that hired killer met with coconspirator and received payment, was sufficient to corroborate accomplice testimony. State v. Curran, 38 Or App 351, 590 P2d 268 (1979), Sup Ct review denied

 

      Where dispute whether witness is accomplice witness exists in jury trial, burden is on defendant to show jury probable cause to believe witness is accomplice. State v. Hull, 286 Or 511, 595 P2d 1240 (1979)

 

      Accomplice witness is “criminally liable” for conduct of defendant if probable cause exists to charge witness with crime. State v. Hull, 286 Or 511, 595 P2d 1240 (1979)

 

      Evidence that, inter alia, parts of stolen vehicle were found on defendant’s property, vehicle’s camper was burned on his property, and photograph of defendant showed him standing, with welding equipment, next to stolen vehicle, which was subsequently altered from its original form, was sufficient to corroborate testimony of two accomplices. State v. Rose, 45 Or App 879, 609 P2d 875 (1980)

 

      For jury to determine whether witness is accomplice, court must instruct jury on factual elements that would suffice to create liability, then jury must determine whether evidence would provide probable cause to charge witness. State v. Shaw, 68 Or App 693, 684 P2d 7 (1984)

 

      Mere presence at scene, even with knowledge of commission of crime, is not enough to make one accomplice under this section. State v. Crawford, 90 Or App 242, 752 P2d 316 (1988), Sup Ct review denied

 

      State did not need to produce evidence to corroborate testimony of witness where witness was not accomplice to crimes committed before witness became involved and where witness was not accomplice to conspiracy because witness was not liable for defendant’s conduct where defendant had entered into conspiracy with another person before witness became involved. State v. McDonnell, 98 Or App 134, 778 P2d 978 (1989), Sup Ct review denied

 

      Considering that corroborative evidence need only tend to connect defendant with crime, may be circumstantial and need not be with respect to every material fact necessary to sustain conviction, extensive evidence in record was sufficient to permit jury to find that accomplice’s testimony was corroborated. State v. Walton, 311 Or 223, 809 P2d 81 (1991)

 

      Where accomplice-witness-as-matter-of-law instruction benefits defendant, instruction does not amount to directed verdict that defendant is guilty. State v. Oatney, 335 Or 276, 66 P3d 475 (2003)

 

      Where no dispute exists that crime was committed, accomplice-witness-as-matter-of-law instruction does not deprive defendant of right to jury trial on each element alleged in indictment. State v. Oatney, 335 Or 276, 66 P3d 475 (2003)

 

COMPLETED CITATIONS: State v. Graf, 6 Or App 243, 487 P2d 92 (1971), Sup Ct review denied; State v. Banks, 6 Or App 47, 486 P2d 584 (1971); State v. Wheelhouse, 6 Or App 151, 486 P2d 1292 (1971)

 

      136.445

 

      See also annotations under ORS 136.605 in permanent edition.

 

NOTES OF DECISIONS

 

      If defendant elects not to stand on his motion and presents evidence in defense, appellate court must consider all evidence and if sufficient to sustain conviction, denial of motion for acquittal is not error. State v. Nix, 7 Or App 383, 491 P2d 635 (1971); State v. Jacobs, 11 Or App 218, 501 P2d 353 (1972), Sup Ct review denied

 

      In reviewing denial of defendant’s motion for judgment of acquittal, court views evidence in light most favorable to state. State v. Nix, 7 Or App 383, 491 P2d 635 (1971)

 

      There is no basis either by statute or under common law for entry of judgment non obstante verdicto in criminal case. State ex rel Haas v. Schwabe, 276 Or 853, 556 P2d 1367 (1977)

 

      Evidence that objects consisting of metal handle with two finger holes and looped end could be used as slugging device was sufficient. State v. Fredette, 72 Or App 293, 696 P2d 7 (1985)

 

      Granting of defendant’s motion for judgment of acquittal during trial on sole ground that indictment did not state facts sufficient to establish crime did not bar later prosecution. State v. Wolfs, 312 Or 646, 826 P2d 623 (1992)

 

      “Acquittal” is to be construed by reference to definition of acquittal in ORS 131.505. State v. Sperry, 149 Or App 690, 945 P2d 546 (1997), Sup Ct review denied

 

      Trial court may not grant post-verdict motion for entry of judgment of acquittal. State v. Metcalfe, 328 Or 309, 974 P2d 1189 (1999)

 

      Court may allow state to reopen case after defendant moves for judgment of acquittal. State v. Agee, 223 Or App 729, 196 P3d 1060 (2008)

 

      136.450

 

      See also annotations under ORS 136.610 in permanent edition.

 

NOTES OF DECISIONS

 

      The verdict of a jury of less than 12 members must be unanimous. State v. Johnson, 13 Or App 79, 508 P2d 840 (1973)

 

      Where juror stated she had voted for conviction in jury room but changed vote to not guilty when jury was polled and changed vote defeated verdict reached in jury room, it was error to receive verdict. State v. De Vault, 78 Or App 307, 715 P2d 1353 (1986)

 

      Juries must agree on specific factual occurrences that constitute statutorily defined elements of crime at issue, although they need not agree on evidentiary bases for proving elements. State v. Houston, 147 Or App 285, 935 P2d 1242 (1997)

 

      Where alternative fact patterns are offered as bases for proving elements of crime, court may either force state to make election at close of case in chief or may instruct jury of need to agree on facts forming elements of crime. State v. Houston, 147 Or App 285, 935 P2d 1242 (1997)

 

      Verdict of guilty except for insanity requires same number of concurring jurors as other guilty verdicts. State v. Reese, 156 Or App 406, 967 P2d 514 (1998)

 

      136.455

 

      See annotations under ORS 136.620 in permanent edition.

 

      136.460

 

      See also annotations under ORS 136.650 in permanent edition.

 

NOTES OF DECISIONS

 

      In determining whether an offense is lesser included, the court’s consideration should be limited to the statutory definition of the offenses and the indictment in the particular case. State v. Washington, 20 Or App 350, 531 P2d 743 (1975), aff’d 273 Or 829, 543 P2d 1058 (1975)

 

      Theft in the second degree by receiving was not a lesser included offense within first degree burglary. State v. Washington, 20 Or App 350, 531 P2d 743 (1975), aff’d 273 Or 829, 543 P2d 1058 (1975)

 

      Driving under the influence of liquor was a lesser included offense within criminally negligent homicide when alleged in the indictment as one element thereof. State v. Deveraux, 20 Or App 358, 531 P2d 749 (1975)

 

      Trial courts can, and when supported by evidence should, instruct on elements of violation of possession of less than ounce of marijuana at conclusion of trial involving possession of quantity exceeding one ounce. State v. Rafal, 21 Or App 114, 533 P2d 1397 (1975)

 

      Trial court may instruct on included violation as well as misdemeanor or felony. State v. Rafal, 21 Or App 114, 533 P2d 1397 (1975); State v. Mink, 30 Or App 339, 567 P2d 1033 (1977)

 

      Crime of sexual abuse is not lesser included offense to crime of burglary. State v. Nye, 273 Or 825, 543 P2d 1041 (1975)

 

      “Statutory” second degree rape is not necessarily “degree inferior” to forcible first degree rape within meaning of this section. State v. Boyum, 25 Or App 51, 548 P2d 172 (1976)

 

      Where evidence existed in record that defendant charged with murder had consumed significant amounts of alcohol on afternoon and evening of murder, defendant was entitled under this section and ORS 136.465 to instruction on lesser included offense of manslaughter in first degree. State v. Thayer, 32 Or App 193, 573 P2d 758 (1978), Sup Ct review denied

 

      It was not error for trial court to refuse to instruct on “lesser included offense” of escape in third degree where evidence was uncontradicted that defendant had been convicted and sentenced for felony and was in custody and jury could not rationally have found him guilty of lesser offense and innocent of greater offense. State v. Palaia, 289 Or 463, 614 P2d 1120 (1980)

 

      Where record included evidence from which jury could rationally and consistently find defendant guilty of lesser included offense, trial court erred by not giving jury instruction for lesser included offense. State v. Boyce, 120 Or App 299, 852 P2d 276 (1993)

 

      Where jury convicts defendant of charged offense, requirement that jury acquit defendant of charged offense before considering lesser included offense does not excuse failure of court to give warranted instruction on lesser included offense. State v. Moses, 165 Or App 317, 997 P2d 251 (2000), Sup Ct review denied; State v. Leckenby, 200 Or App 684, 117 P3d 273 (2005)

 

      Use of jury instruction requiring that jury acquit defendant of offense charged in indictment before considering lesser included offense does not deny defendant’s right to impartial jury. State v. Horsley, 169 Or App 438, 8 P3d 1021 (2000), Sup Ct review denied

 

      Violation not lesser included offense of crime. State v. Swanson, 237 Or App 508, 240 P3d 63 (2010), aff’d 351 Or 286, 266 P3d 45 (2011)

 

      Where defendant may be guilty of lesser-included offenses, jury may be instructed before deliberations begin of both charged offense and any lesser-included offenses, but when deliberating jury must consider most serious offense first before sequentially considering lesser-included offenses. State v. Zolotoff, 354 Or 711, 320 P3d 561 (2014)

 

      136.465

 

      See also annotations under ORS 136.660 in permanent edition.

 

NOTES OF DECISIONS

 

      Under the required evidence rule, driving while under the influence of intoxicating liquor is not an offense necessarily included in negligent homicide. State v. Elliott, 6 Or App 436, 488 P2d 1189 (1971)

 

      A directed verdict of acquittal of the more serious offense upon completion of the state’s evidence does not preclude submission to the jury of a lesser included offense. State v. Bell, 14 Or App 531, 513 P2d 811 (1973), Sup Ct review denied

 

      Lesser included offense instruction should be given only when disputed issues of fact would enable the jury rationally to find that the greater offense is not proven, but that the elements of the lesser offense have been proved. State v. Williams, 16 Or App 48, 517 P2d 311 (1973), aff’d 270 Or 152, 526 P2d 1384; State v. Palaia, 289 Or 463, 614 P2d 1120 (1980)

 

      To determine if an offense is “necessarily included,” the court should limit itself to an analysis of the relationship between the two offense categories:B1.the statutory definitions of the offenses. State v. Washington, 20 Or App 350, 531 P2d 743 (1975), aff’d 273 Or 829, 543 P2d 1058 (1975)

 

      Trial courts can, and when supported by evidence should, instruct on elements of violation of possession of less than ounce of marijuana at conclusion of trial involving possession of quantity exceeding one ounce. State v. Rafal, 21 Or App 114, 533 P2d 1397 (1975)

 

      Trial court may instruct on included violation as well as misdemeanor or felony. State v. Rafal, 21 Or App 114, 533 P2d 1397 (1975); State v. Mink, 30 Or App 339, 567 P2d 1033 (1977)

 

      Crime of sexual abuse is not lesser included offense to crime of burglary. State v. Nye, 273 Or 825, 543 P2d 1041 (1975)

 

      Only limitation on right of prosecution or defendant to request lesser included offense instruction is that there must be evidence or inference that can be drawn from evidence to support instruction. State v. Washington, 273 Or 829, 543 P2d 1058 (1975); State v. Watkins, 47 Or App 777, 615 P2d 394 (1980)

 

      Under evidence that defendant charged with murder had consumed significant amounts of alcohol on afternoon and evening of murder, defendant was entitled under this section and ORS 136.460 to instruction on lesser included offense of manslaughter in first degree. State v. Thayer, 32 Or App 193, 573 P2d 758 (1978), Sup Ct review denied

 

      Menacing is not lesser included offense of carrying dangerous weapon with intent to use. State v. Cummings, 33 Or App 265 (1978)

 

      Where state relied on precisely same act to establish “use-physical-force” element of robbery and “cause-physical-injury” element of assault, defendant’s assault conviction merged into robbery conviction. State v. Steele, 33 Or App 491, 577 P2d 524 (1978), Sup Ct review denied

 

      Where defendant was charged with first degree robbery (ORS 164.415), it was error to convict him of second degree assault (ORS 163.175), as every element of that crime was not an element of first degree robbery under the statutory scheme or the indictment. State v. Cartwright, 40 Or App 593, 595 P2d 1289 (1979)

 

      Offense is lesser included offense if: 1) elements of lesser offense are included in charged offense; or 2) facts alleged in charging instrument expressly include conduct describing elements of lesser offense. State v. Moroney, 289 Or 597, 616 P2d 471 (1980); State v. Torres, 182 Or App 156, 48 P3d 170 (2002), on reconsideration 184 Or App 515, 59 P3d 47 (2002)

 

      Where defendant, charged with first degree burglary (ORS 164.225), presented evidence that he did not enter building and that he did not enter or remain upon the premises with an intent to commit a crime there, evidence created dispute as to issues of fact which would have enabled jury to find that elements of greater offense had not been proven and failure to instruct on lesser offense of criminal trespass in second degree (ORS 164.245) was error. State v. Naylor, 291 Or 191, 629 P2d 1308 (1981)

 

      Instruction on lesser included offense is not required when evidence in record does not rationally support verdict of guilty of lesser offense and acquittal on greater offense. State v. Farrar, 309 Or 132, 786 P2d 161 (1990)

 

      Crime of intentional murder is “necessarily included” in crime of aggravated murder. State v. Isom, 313 Or 391, 837 P2d 491 (1992)

 

      Lesser included offense need not be pleaded separately or notice of lesser included offense given to defense by discovery or inclusion in opening argument. State v. Bockorny, 125 Or App 479, 866 P2d 1230 (1993); 126 Or App 504, 869 P2d 349 (1994), Sup Ct review denied

 

      Violation not necessarily included in crime with which defendant is charged. State v. Swanson, 237 Or App 508, 240 P3d 63 (2010), aff’d 351 Or 286, 266 P3d 45 (2011)

 

      “[A]ny crime” means offense for which sentence of imprisonment is authorized.” State v. Swanson, 351 Or 286, 266 P3d 45 (2011)

 

      136.480

 

NOTES OF DECISIONS

 

      Where defendant did not move for reconsideration of verdict but only raised for first time on appeal argument that jury’s verdicts were fatally inconsistent, motion for directed verdict did not preserve as error alleged inconsistency in jury’s verdicts because motion for directed verdict comes before jury renders its verdict. State v. Smith, 101 Or App 483, 791 P2d 500 (1990)

 

      136.485

 

      See annotations under ORS 136.700 in permanent edition.

 

      136.490

 

NOTES OF DECISIONS

 

      This section permits prosecution for two offenses arising out of the same transaction which may in fact be the same offense, if defendant is acquitted of the first charge on the ground of variance between indictment and the proof. State v. Ayers, 16 Or App 655, 520 P2d 449 (1974), Sup Ct review denied

 

      136.495

 

LAW REVIEW CITATIONS: 53 OLR 325 (1974)

 

      136.500

 

      See also annotations under ORS 136.810 in permanent edition.

 

NOTES OF DECISIONS

 

      The motion cannot be made on the insufficiency of the indictment. State v. Kennedy, 6 Or App 552, 488 P2d 819 (1971), Sup Ct review denied

 

      Where circuit court order vacated sentence of municipal court due to unconstitutionality of underlying ordinance this was order in arrest of judgment from which city could appeal. City of Toledo v. Richards, 40 Or App 71, 594 P2d 422 (1979), Sup Ct review denied

 

      Motion in arrest of judgment cannot be based on statute of limitations. State v. Parker, 119 Or App 105, 849 P2d 1157 (1993), Sup Ct review denied

 

      Lack of hearing and determination does not result in motion in arrest of judgment being automatically deemed denied. State v. Starr, 210 Or App 409, 150 P3d 1072 (2007)

 

      Motion in arrest of judgment may be filed before judgment has been entered. State v. Starr, 210 Or App 409, 150 P3d 1072 (2007)

 

      Court lacks jurisdiction to rule on motion in arrest of judgment while appeal from judgment is pending. State v. Starr, 210 Or App 409, 150 P3d 1072 (2007)

 

      Failure of court to hear and determine motion in arrest of judgment is not appealable event. State v. Starr, 210 Or App 409, 150 P3d 1072 (2007)

 

COMPLETED CITATIONS: Portland v. Olson, 4 Or App 380, 481 P2d 641 (1971), Sup Ct review denied

 

      136.505

 

      See annotations under ORS 136.820 in permanent edition.

 

      136.515

 

      See annotations under ORS 136.830 in permanent edition.

 

      136.525

 

      See annotations under ORS 136.840 in permanent edition.

 

      136.535

 

      See also annotations under ORS 136.851 in permanent edition.

 

NOTES OF DECISIONS

 

      Motion for new trial should have been granted where evidence in the possession of the prosecutor would reasonably have been anticipated to enable the production of evidence of substantial significance for the defense. State v. Williams, 11 Or App 255, 500 P2d 722 (1972)

 

      Where prosecutor made objectionable remarks during closing argument about defendant’s expert witness and counsel that were inappropriate and highly likely to influence jury, trial court’s failure to sustain defendant’s objections or to grant motion for new trial on grounds of misconduct of prevailing party was reversible error and defendant not required to move for mistrial or to request curative instruction to preserve error. State v. Lundbom, 96 Or App 458, 773 P2d 11 (1989), Sup Ct review denied

 

      Where defendant did not move for new trial but only raised for first time on appeal argument that jury’s verdicts were fatally inconsistent, motion for directed verdict did not preserve as error alleged inconsistency in jury’s verdicts because motion for directed verdict comes before jury renders its verdict. State v. Smith, 101 Or App 483, 791 P2d 500 (1990)

 

      Where appellants failed to file motions for new trial or to obtain extensions of time for filing within five days after entry of judgment, motion for new trial filed after five-day period was untimely. State v. Provonsha, 107 Or App 571, 813 P2d 563 (1991), Sup Ct review denied

 

      Defendant waived basis for new trial motion when defendant stated at trial that he had no objection to jury verdicts. State v. Kelley, 114 Or App 262, 835 P2d 145 (1992), Sup Ct review denied

 

      Juror misconduct used to attack verdict must be misconduct extrinsic to communication between jurors during deliberative process, or misconduct based on fraud, bribery, forcible coercion or other obstruction of justice. State v. Jones, 126 Or App 224, 868 P2d 18 (1994), Sup Ct review denied

 

COMPLETED CITATIONS: State v. Penland, 6 Or App 255, 486 P2d 1314 (1971), Sup Ct review denied

 

LAW REVIEW CITATIONS: 51 OLR 652, 653, 655 (1972)

 

      136.555

 

      See also annotations under ORS 139.010 in permanent edition.

 

NOTES OF DECISIONS

 

      Trial judge is not required to instruct the jury not to draw any inference from a defendant’s refusal to allow his spouse to testify. State v. Ayers, 16 Or App 300, 518 P2d 190 (1974), Sup Ct review denied

 

      136.557

 

      See annotations under ORS 139.020 in permanent edition.

 

      136.563

 

      See also annotations under ORS 139.030 in permanent edition.

 

NOTES OF DECISIONS

 

      Prosecutor has authority to subpoena witnesses before grand jury but inquisitorial power to compel testimony resides in grand jury; attorney-witness before grand jury who refused to answer question on ground of attorney-client privilege could not be compelled to testify by prosecutor’s asking court on behalf of grand jury to order answer to question. State ex rel Frohnmayer v. Sams, 293 Or 385, 648 P2d 364 (1982)

 

LAW REVIEW CITATIONS: 51 OLR 360 (1972)

 

      136.565

 

      See annotations under ORS 139.040 in permanent edition.

 

      136.567

 

      See also annotations under ORS 139.050 in permanent edition.

 

NOTES OF DECISIONS

 

      Where witness testified at proceeding, defendant had right to compel third-party production of documentary materials having potential usefulness for cross-examination of witness. State v. Cartwright, 336 Or 408, 85 P3d 305 (2004)

 

      Where person has been subpoenaed, obligation to give evidence includes production of handwriting exemplars. State v. Jackson, 223 Or App 429, 196 P3d 559 (2008)

 

      136.570

 

      See annotations under ORS 139.060 in permanent edition.

 

      136.575

 

      See annotations under ORS 139.070 in permanent edition.

 

      136.580

 

NOTES OF DECISIONS

      Audiotapes are functional equivalent of “books, papers or documents” for purposes of being subject to subpoena duces tecum. State v. Cartwright, 336 Or 408, 85 P3d 305 (2004)

 

      Discretionary procedure for court to order early production of documentary materials presupposes issuance of proper subpoena duces tecum summoning materials to court proceeding where materials will or may be called into evidence. State v. Cartwright, 336 Or 408, 85 P3d 305 (2004)

 

      Where witness testified at proceeding, defendant had right to compel third-party production of documentary materials having potential usefulness for cross-examination of witness. State v. Cartwright, 336 Or 408, 85 P3d 305 (2004)

 

      136.583

 

NOTES OF DECISIONS

 

      Where Oregon has personal jurisdiction over out of state business that does business in Oregon by providing electronic mail services to Oregon residents, Oregon court is authorized under this section to issue search warrant to out of state business for records located out of state. State v. Rose, 264 Or App 95, 330 P3d 680 (2014), Sup Ct review denied

 

      Where search warrant clearly identified defendant’s electronic mail account as place to search and evidence of crimes of using child in display of sexually explicit conduct and of encouraging child sexual abuse but did not identify date parameters for search, warrant was specific enough to meet constitutional requirements of this section. State v. Rose, 264 Or App 95, 330 P3d 680 (2014), Sup Ct review denied

 

      136.585

 

      See annotations under ORS 139.090 in permanent edition.

 

      136.595

 

      See annotations under ORS 139.100 in permanent edition.

 

      136.602

 

NOTES OF DECISIONS

 

      “Except as otherwise specifically provided by law” refers to statutory provisions imposing initial responsibility for prosecution witness expenses on entity other than county, but does not refer to statutes addressing reimbursement of county expenses. State v. Ferman-Velasco, 333 Or 422, 41 P3d 404 (2002)

 

      136.603

 

      See annotations under ORS 139.140 in permanent edition.

 

      136.617

 

NOTES OF DECISIONS

 

      Under this section, trial court finding at summary hearing that there is reasonable cause to believe witness possesses knowledge relevant to case requires entry of order that witness testify regarding subject matter under inquiry unless court finds that to do so would be clearly contrary to public interest. State ex rel Lasswell v. Sanders, 293 Or 41, 643 P2d 1273 (1982)

 

      This section, in providing that summary hearing to determine whether witness in criminal case has constitutional right not to testify or produce evidence shall be conducted outside presence of jury and public, violates section 10, Article I of Oregon Constitution. Oregonian Publishing Co. v. O’Leary, 303 Or 297, 736 P2d 173 (1987)

 

      This section is not independent source of authority to take testimony before witness has been called in normal course of trial or other proceeding. State v. Nefstad, 99 Or App 12, 781 P2d 358 (1989), Sup Ct review denied

 

      When contemnor first indicated he would refuse to testify on Fifth Amendment grounds, he had right to counsel under this section. State v. Rogers/Jones, 102 Or App 424, 794 P2d 1245 (1990)

 

LAW REVIEW CITATIONS: 51 OLR 573-577 (1972)

 

      136.619

 

NOTES OF DECISIONS

 

      Under Oregon Constitution, only transactional immunity is permissible and lesser statutory immunity of use and derivative use fails to meet requirements of Constitution. State v. Soriano, 298 Or 392, 693 P2d 26 (1984)

 

      On remand, by testifying defendant accepted use and derivative use immunity offered by former version of this section and court may not now transform immunity to transactional immunity offered under current version of this section. State v. White, 96 Or App 713, 773 P2d 824 (1989), Sup Ct review denied

 

LAW REVIEW CITATIONS: 51 OLR 573-577 (1972)

 

      136.623 to 136.637

 

      See also annotations under ORS 139.210 to 139.260 in permanent edition.

 

NOTES OF DECISIONS

 

      Defendant in misdemeanor case was entitled to utilize Uniform Act provisions to compel attendance of out-of-state witnesses. State v. Harris, 47 Or App 665, 615 P2d 363 (1980)

 

      136.627

 

      See also annotations under ORS 139.230 in permanent edition.

 

NOTES OF DECISIONS

 

      Defendant’s motion for advancement of funds to subpoena out-of-state witnesses pursuant to ORS 135.055 was sufficient to raise issue of entitlement to subpoenas under this section. State v. Harris, 47 Or App 665, 615 P2d 363 (1980)

 

      136.633

 

      See annotations under ORS 139.240 in permanent edition.

 

      136.643

 

      See also annotations under ORS 139.310 in permanent edition.

 

NOTES OF DECISIONS

 

      A co-indictee may be compelled to testify as to a crime for which he has been acquitted, convicted or pleaded guilty. State v. Denniston, 8 Or App 64, 491 P2d 1189 (1971), Sup Ct review denied

 

      A defendant may be forced to testify to the commission of a crime other than the one for which he is being tried if the evidence is independently relevant and the probative value outweighs its prejudicial influence. State v. Spunaugle, 11 Or App 583, 504 P2d 756 (1972)

 

      The relevance of defendant’s testimony as to the commission of a crime other than the one for which he was being tried was outweighed by the prejudicial value. State v. Spunaugle, 11 Or App 583, 504 P2d 756 (1972)

 

COMPLETED CITATIONS: State v. Howard, 6 Or App 230, 486 P2d 1301 (1971), Sup Ct review denied

 

      136.645

 

      See annotations under ORS 139.315 in permanent edition.

 

      136.655

 

      See also annotations under ORS 44.040 and 139.320 in permanent edition.

 

NOTES OF DECISIONS

 

      The doctrine of marital privilege does not prohibit the testimony of third persons as to information volunteered by the defendant’s wife. State v. Lindley, 11 Or App 417, 502 P2d 390 (1972), Sup Ct review denied

 

      136.765

 

NOTES OF DECISIONS

 

      For purpose of giving defendant notice of intention to rely on enhancement facts, “reasonable time” means time sufficient to allow defendant to prepare defense against those enhancement facts. State v. Roberts, 231 Or App 263, 219 P3d 41 (2009), Sup Ct review denied

 

      “Enhancement fact” means specific enhancement fact. State v. Alexander, 255 Or App 594, 298 P3d 55 (2013)

 

Notice of intent to rely on enhancement facts is required if facts to be determined will be used in evaluating whether to impose dispositional departure for specific offense. State v. Frinell, 290 Or App 296, 414 P3d 430 (2018)

 

      136.776

 

NOTES OF DECISIONS

 

      To waive constitutional right to jury trial on question of guilt or innocence, defendant must also make knowing and intentional waiver, in writing, of right to jury trial on sentencing enhancement facts. State v. Lafferty, 240 Or App 564, 247 P3d 1266 (2011)