COURT OF APPEALS Media Release

COPIES: CONTACT: Copies of the slip opinions may be obtained from the Appellate Records Section, (503) 986-5555. Julie Smith The full text of the opinions can be found at http://www.publications.ojd.state.or.us. (503) 986-5634

May 13, 2015

The Court of Appeals issued these opinions:

State of Oregon v. Robert Dean Ross (A151742 - Deschutes County Circuit Court) Allan F. Knappenberger v. Adelbert John Davis-Stanton (A148999 - Multnomah County Circuit Court) State of Oregon v. Nathan Combest (A151950 - Lane County Circuit Court) Patrice Diane Altenhofen and Gary William Vanden-Busch (A154458 - Marion County Circuit Court) State of Oregon v. Deborah Kay Barker (A147777 - Lane County Circuit Court) State of Oregon v. Simon Jaimes-Pineda (A148053 - Yamhill County Circuit Court) Department of Human Services v. R. K., Sr. (A157281 - Marion County Circuit Court) State of Oregon v. Brandon Alexander Craine (A152455 - Washington County Circuit Court) Karah Gretchen Madrone and Lorrena Thompson Madrone (A154894 - Klamath County Circuit Court) Mark Vukanovich v. Larry Kine (A148776 - Lane County Circuit Court) Gail Neidhart v. Adrianne Page (A150255 - Washington County Circuit Court) Dalice L. Vukasin v. Liberty Northwest Insurance Corporation (A153002 - Workers' Compensation Board)

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F. . L. v. Artemio Castillo Agustin* (A154753 - Washington County Circuit Court) Tina Jeanette Cirina and Marco Jesse Cirina (A156581 - Josephine County Circuit Court) Sarah Nordbye v. BRCP/GM Ellington (A153436 - Multnomah County Circuit Court) State of Oregon v. Donghwan Kim (A153446 - Lane County Circuit Court) John M. English v. Liberty Northwest Insurance Corporation (A153438 - Workers' Compensation Board) SAIF Corporation v. Jerry F. Durant (A154773 - Workers' Compensation Board) SAIF Corporation v. Daniel L. DeMarco (A155383 - Workers' Compensation Board)

The Court of Appeals issued this per curiam opinion:

State of Oregon v. Keisha Marie Epps (A155075 - Multnomah County Circuit Court)

The Court of Appeals affirmed these cases without opinion:

State of Oregon v. Richard Ernest Diem (A154476 - Marion County Circuit Court) State of Oregon v. Thomas Riley Garcia (A154489 - Lincoln County Circuit Court) State of Oregon v. Patrice L. Washington (A154541 - Multnomah County Circuit Court) State of Oregon v. Anthony Cray Bell, Jr. (A154800 - Multnomah County Circuit Court) State of Oregon v. James Marco Bryan (A154863 - Columbia County Circuit Court) State of Oregon v. Glenn Joseph Dewald (A155251 - Washington County Circuit Court) State of Oregon v. Daniel R. Ruiz (A155278 - Marion County Circuit Court) State of Oregon v. Alfredo Zamora (A155306 - Marion County Circuit Court) State of Oregon v. Timofei Viktorovich Elmanov (A155548 - Multnomah County Circuit Court) State of Oregon v. Shane Michael Freda (A156029 - Washington County Circuit Court)

* * * * * *The case title has been redacted in this media release and in the online version of the opinion, in with 18 USC section 2265(d)(3). 2

State of Oregon v. Robert Dean Ross (Haselton, C. J.)

Defendant, who was convicted of various sexual offenses involving multiple victims, appeals. Defendant asserts that the trial court committed reversible "plain error" by (1) admitting "vouching" testimony by a witness, relating to one victim's credibility, with respect to Count 4 (first-degree unlawful sexual penetration) and (2) failing to instruct the jury as to the requisite mental state for forcible compulsion, a material element of first-degree sodomy and attempted first-degree sodomy, as charged in Counts 1 and 5. Held: The Court of Appeals concluded that the asserted errors either do not qualify as "plain error," see State v. Brown, 310 Or 347, 355, 800 P2d 259 (1990), or declined to exercise its discretion to correct them, see Ailes v. Portland Meadows, Inc., 312 Or 376, 382, 823 P2d 956 (1991). Affirmed.

Allan F. Knappenberger v. Adelbert John Davis-Stanton (Armstrong, J.)

Plaintiff appeals a judgment for defendant, assigning error to the trial court's grant of defendant's motion for judgment notwithstanding the jury verdict in favor of plaintiff. Plaintiff contends that the trial court erred in concluding that ORS 12.150, which tolls statutes of limitation that apply to claims against a defendant when the defendant moves out of the state after the claims have accrued, is unconstitutional as applied in the circumstances of this case. Defendant cross-assigns error to the trial court's of his motion for leave to file an amended answer. Held: (1) ORS 12.150 applies in this case, notwithstanding that defendant was subject to service and personal jurisdiction under ORCP 4, because ORCP 4 does not provide a mechanism for in-state service of an out-of-state defendant. (2) The trial court erred in concluding that ORS 12.150, as applied in this case, would violate the dormant Commerce Clause of the United States Constitution. The dormant Commerce Clause is not implicated where an individual simply moves himself or herself from one state to another, without evidence of any nexus with commerce. (3) The trial court did not err in denying defendant's motion for leave to file an amended answer. Reversed and remanded for entry of judgment on jury verdict.

State of Oregon v. Nathan Combest (Sercombe, P. J.)

Defendant appeals a judgment of conviction for multiple counts of encouraging child sexual , assigning error to the trial court's denial of his motion to suppress evidence. Defendant shared files, including files containing child pornography, on a peer-to-peer . Using software called LE, officers accessed that peer-to-peer network; searched for shared files that, in light of file name and other attributes, were likely child pornography; identified an IP address for a user those files; and then downloaded two files from that user. They later identified defendant as that user and uncovered other evidence from defendant's computer that he possessed child pornography. On appeal, defendant argues, as he did in the trial court, that all evidence of his distribution and possession of child pornography should be suppressed because the officers conducted a warrantless "search" under Article I, section 9, of the Oregon Constitution--i.e., they invaded defendant's protected interest--when they used Shareaza LE to locate and access his files on the peer-to-peer network. Held: Because the officers used Shareaza LE to access selective information that defendant made available to any other user of the peer-to-peer network by targeting shared network files containing child pornography, their use of that software did not amount to a search under Article I, section 9. Affirmed.

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Patrice Diane Altenhofen and Gary William Vanden-Busch (Sercombe, P. J.)

Defendant appeals the trial court's judgment finding him in contempt for failure to pay child support and imposing 60 months of bench probation. He contends that the trial court erred in finding him in contempt and that the court plainly erred when it imposed a determinate term of probation in remedial contempt proceedings. Held: Where defendant could not fully comply with a support order, but had some money that he could have, but failed to, apply toward a support obligation, the trial court could properly find him in contempt. However, the trial court committed plain error in imposing a punitive contempt sanction in this case, and the interests of the , gravity of the error, and the ends of require correction of the error. Portion of judgment imposing punitive contempt sanction reversed and remanded for entry of judgment imposing remedial contempt sanction; otherwise affirmed.

State of Oregon v. Deborah Kay Barker (Duncan, P. J.)

Defendant appeals a judgment of conviction for unlawful possession of methamphetamine, asserting that the trial court erred in denying her motion to suppress evidence found during a warrantless search of her purse. Held: Contrary to the trial court's ruling, the search of defendant's purse was not a valid search incident to arrest because the searching officer lacked probable cause to arrest defendant. Reversed and remanded.

State of Oregon v. Simon Jaimes-Pineda (Duncan, P. J.)

In this criminal case, defendant appeals the trial court's judgment convicting him of two counts of assault in the fourth degree and two counts of harassment. He raises two assignments of error. In his first assignment of error, defendant asserts that the trial court erred by excluding evidence that he sought to introduce to rebut the state's evidence that he had threatened one of the state's witnesses. In his second assignment of error, defendant asserts that the trial court committed plain error by ordering him to pay court-appointed attorney fees. Held: The trial court excluded defendant's evidence with respect to the reported threat under OEC 403 and did not abuse its discretion in doing so because the court could reasonably conclude that additional evidence about the incident during which the reported threat occurred would cause confusion of the issues and undue delay. There is adequate evidence in the record to support a finding, as required by ORS 161.665, that defendant "is or may be able to pay" the ordered attorney fees; therefore, the trial court did not commit plain error by imposing the fees. Affirmed.

Department of Human Services v. R. K., Sr. (Duncan, P. J.)

In this consolidated termination of parental rights case involving two boys, X and R, and their three parents- -the of X and R (mother); the of X (XZF); and the father of R (RK)--the three parents appeal from judgments terminating their parental rights. The parents assert that the trial court erred in terminating their parental rights. Held: The trial court did not err in terminating the parental rights of mother and RK, but did err in terminating the parental rights of XZF. First, based on mother's history of drug abuse, domestic violence, and past resistance to help, it was unlikely that mother's conduct and conditions would change in the foreseeable future. Further, clear and convincing evidence supported the determination that termination of mother's parental rights was in the best interests of the children. Second, the state demonstrated that, despite RK's recent progress and his testimony concerning his commitment to changing his conduct and lifestyle, as of the date of trial, RK remained unfit, and the conditions causing his unfitness were seriously detrimental to R. Additionally, it was improbable that R could be returned to RK's care within a reasonable time, and 4 termination of RK's parental rights was in R's best interests. Finally, evidence of XZF's incarceration was insufficient to establish that his conduct was seriously detrimental to X so as to justify termination of his parental rights. Judgment terminating parental rights of X. Z. F. reversed; otherwise affirmed.

State of Oregon v. Brandon Alexander Craine (Hadlock, J.)

Defendant rented a U-Haul truck for one night for an in-town move in Arkansas. He did not return the truck to the Arkansas location. Instead, he drove it to Oregon, where he was found with it three weeks later. Defendant was charged with unauthorized use of a vehicle (UUV) under ORS 164.135(1)(c), which provides that a person commits UUV if the person has custody of a vehicle pursuant to an agreement with the vehicle's owner but fails to return it for so lengthy a period that the continued possession constitutes a "gross deviation from the agreement." At trial, defendant sought to introduce evidence that, after he was charged with UUV, he paid approximately $4,000 to U-Haul for charges imposed for returning the truck late and to the wrong location. Defendant argued that the evidence was relevant to show that he had acted consistently with the rental agreement, which, he asserted, contemplated late returns and returns to the wrong location. He also argued that it was relevant to counter a document, introduced by the state, showing that defendant had an outstanding balance of $4,230 with U-Haul. The trial court excluded defendant's evidence as irrelevant. Defendant was convicted of UUV. The judgment ordered defendant to pay restitution in an amount to be determined by the District Attorney's office. The judgment provided that defendant would have 10 days after receiving notice of the amount of restitution sought to request a formal restitution hearing. The state later submitted a proposed supplemental judgment requiring defendant to pay U-Haul $2,147.60 in restitution. The court signed the supplemental judgment and entered it two days after the state submitted it. On appeal, defendant challenges the exclusion of the evidence that he had paid U-Haul approximately $4,000. He also challenges the imposition of restitution. Held: The evidence of defendant's payment to U-Haul was not relevant to the determination of whether he violated ORS 164.135(1)(c). Nor was it admissible under the "curative admissibility" doctrine to counter the evidence showing that he had an outstanding balance with U-Haul. Because defendant was deprived of the opportunity to object to the proposed amount of restitution, the Court of Appeals vacated the supplemental judgment and remanded for further proceedings on restitution. Supplemental judgment vacated and remanded; otherwise affirmed.

Karah Gretchen Madrone and Lorrena Thompson Madrone (Hadlock, J.)

ORS 109.243 creates parentage in the husband of a woman who bears a child conceived by artificial insemination if the husband consented to that insemination. In a previous case, the Court of Appeals held that that statute violated Article I, section 20, of the Oregon Constitution because it granted a privilege- -parentage by operation of law--on the basis of sexual orientation, because it applied only to married couples and because, at that time, same-sex couples were not permitted to marry in Oregon. To remedy the violation, the court extended the statute so that it applies when the same-sex partner of the biological mother consented to the artificial insemination. However, because it was undisputed in that case that the parties were similarly situated to a married opposite-sex couple, the court did not specify to which same-sex couples the extension of ORS 109.243 applies. This case raises that question. Respondent gave birth to a daughter, R, who was conceived by artificial insemination. Shortly thereafter, the Oregon Family Fairness Act took effect, allowing same-sex couples to register domestic partnerships, which petitioner and respondent then did. They later separated, and petitioner brought the present action for dissolution of the domestic partnership. Among other claims, petitioner sought a declaration that she is R's legal parent by operation of ORS 109.243. The trial court granted summary judgment for petitioner on that claim. Respondent appeals. Held: ORS 109.243 applies to unmarried same-sex couples who have a child through artificial insemination if the partner of the biological parent consented to the insemination and the couple would have chosen to marry had that 5 choice been available to them. The record in this case includes evidence creating a genuine dispute on the latter point. Accordingly, the trial court erred in entering summary judgment. Reversed and remanded.

Mark Vukanovich v. Larry Kine (Lagesen, J.)

Defendants petition for reconsideration of the Court of Appeals' decision in Vukanovich v. Kine, 268 Or App 623, 342 P3d 1075 (2015), contending that, among other things, the court procedurally erred by remanding with directions to the trial court to enter judgment in favor of plaintiff on the breach-of-contract claim. In defendants' view, the proper course of action was to remand to the trial court for further proceedings in connection with defendants' equitable defenses, because the record contains evidence of inequitable conduct by plaintiff- -other than the conduct that we deemed insufficient to support the court's ruling--that would permit the court to find in defendants' favor on the defenses. Held: The proper procedural course is to remand to the trial court for the court to reconsider defendants' equitable defenses in the light of our ruling. Reconsideration allowed; former disposition withdrawn; former opinion modified and adhered to as modified; judgment on plaintiff's breach-of-contract claim reversed and remanded; otherwise affirmed.

Gail Neidhart v. Adrianne Page (Lagesen, J.)

Defendant petitions for reconsideration of an opinion affirming a forcible entry and detainer judgment awarding possession of the premises at issue to plaintiff. In her petition, defendant argues, among other things, that the opinion states a factual error related to the nature of the judgment and misunderstands one of her legal arguments. Held: The petition is allowed, and the opinion modified, to address the factual error identified by defendant. Reconsideration allowed; former opinion modified and adhered to as modified.

Dalice L. Vukasin v. Liberty Northwest Insurance Corporation (Lagesen, P. J.)

Claimant seeks judicial review of an order of the Workers' Compensation Board (the board) upholding the denial of her claim for compensability of medical services. In particular, claimant seeks review of the board's determination that a 2009 surgery was not compensably related to a 2000 workplace injury, arguing that (1) the board lacked legal authority to consider whether claimant's previously accepted conditions had "resolved" prior to the surgery, and (2) the order is not supported by substantial evidence. Held: Compensability of medical services is a factual question, and nothing precluded the board from considering whether an accepted condition had resolved as part of that analysis. Substantial evidence supported the board's finding that claimant's surgery was not directed to any of her accepted conditions. Affirmed.

F. C. L. v. Artemio Castillo Agustin (Lagesen, J.)

Defendant appeals a judgment of punitive contempt for violation of a Family Abuse Prevention Act restraining order. He contends that the trial court's remarks to him about the risks of testifying amounted to plain legal error. Held: The trial court plainly erred because its remarks--which would have communicated to a reasonable person in defendant's position that the trial court would sentence defendant more harshly if defendant elected to testify--crossed the line from permissible warnings to impermissible coercion, violating defendant's due process rights under the Fourteenth Amendment to the United States Constitution. Reversed and remanded.

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Tina Jeanette Cirina and Marco Jesse Cirina (Lagesen, J.)

Husband challenges four aspects of the judgment dissolving his marriage to wife. First, husband argues that the trial court's division was flawed because the court allocated a significant debt---$130,599.83 owed to husband's father--entirely to husband, notwithstanding the fact that the debt was incurred to pay off a loan on the marital residence. In his second and third assignments of error, husband argues that the trial court miscalculated his income, resulting in erroneous awards of spousal and child support. Finally, husband argues that the trial court erred in awarding attorney fees to wife when she had not filed a request pursuant to ORCP 68. Held: The trial court employed the wrong legal analysis in assessing whether the payoff by husband's father resulted in a marital debt. Rather than determining (1) whether the promissory note reflects actual debt (as opposed to a ) and (2) if so, the use to which that debt was put, the court instead divided assets based on the fact that wife had not signed the note. Therefore, the property division, as well as the award of attorney fees, which was based in part on the court's ruling regarding the promissory note, must be vacated and remanded for reconsideration. The trial court did not err, however, in calculating husband's income for purposes of awarding child and spousal support; the court was not required to credit husband's testimony that his future income would decrease. Property division and award of attorney fees vacated and remanded for reconsideration; otherwise affirmed.

Sarah Nordbye v. BRCP/GM Ellington (Tookey, J.)

In this interlocutory appeal in a putative class action, defendant BRCP/GM Ellington contends that the trial court erred in denying its motion to dismiss for lack of subject matter jurisdiction and, in the same order, allowing intervention by two members of the putative class. Held: In light of plaintiff's stipulation that she no longer qualified for low-income housing under the Low Income Housing Tax Credit program and did not intend to move back into the apartment complex, plaintiff lacked standing and her claims were moot by the time defendant moved to dismiss the action. The fact that the action was pleaded as a class action did not give the trial court subject matter jurisdiction notwithstanding the mootness of plaintiff's claims. Accordingly, the trial court lacked jurisdiction to consider the motion to intervene. Order vacated; remanded for entry of judgment dismissing case as moot.

State of Oregon v. Donghwan Kim (Tookey, J.)

Defendant appeals a judgment of conviction for assault in the fourth degree, stalking, and violating a court's protective order, and a finding of punitive contempt. He argues that he did not "knowingly" waive his Article I, section 11, right to counsel, because the trial court did not inform him of the material risks of proceeding without an attorney or determine whether he understood those risks. Held: The record does not support a finding that, in the totality of the circumstances, defendant understood his right to counsel; therefore, defendant's waiver of his right to counsel was not "voluntarily and intelligently made." The trial court erred in accepting defendant's waiver of his right to counsel, and that error was not harmless. Reversed and remanded.

John M. English v. Liberty Northwest Insurance Corporation (Flynn, J.)

Claimant seeks review of an order of the Workers' Compensation Board holding that he failed to establish the compensability of alleged consequential conditions, because the evidence does not show that the claimed consequential conditions were caused in major part by the "accepted conditions." Held: The Workers' Compensation Board erred in its analysis of claimant's consequential condition claim because, under Brown 7 v. SAIF, 262 Or App 640, 325 P3d 834, rev allowed, 356 Or 397 (2014), the correct inquiry is not whether the consequential conditions were caused by the "accepted conditions," but whether they were caused in major part by the "compensable injury." Reversed and remanded.

SAIF Corporation v. Jerry F. Durant (Flynn, J.)

Petitioners SAIF Corporation and its insured, MPP Piping, Inc. (MPP), seek review of an order of the Workers' Compensation Board (the board) that found petitioners responsible for claimant's 2011 shoulder condition as a consequential condition of claimant's 2006 shoulder injury at MPP. Petitioners contend that the board erred by refusing to apply the last injurious exposure rule (LIER) to shift responsibility for the work-related shoulder condition to a later employer. Petitioners also contend that the board erred in concluding that claimant's compensable injury was the major contributing cause of his 2011 shoulder condition. Held: There was substantial evidence to support the board's finding that claimant's 2006 injury was the major contributing cause of his full rotator cuff tear in 2011. Based on that finding, the board properly classified the claim as a consequential condition for which petitioners are liable and appropriately declined to assign liability according to the LIER. Affirmed.

SAIF Corporation v. Daniel L. DeMarco (Flynn, J.)

SAIF appeals an order of the Workers' Compensation Board setting aside its denial of claimant's new/omitted medical condition claims for a leg infection and amputation. SAIF argues that the medical opinions relied on by the board were legally insufficient to prove compensability under ORS 656.005(7)(a)(A) for two reasons: (1) the experts improperly considered the contribution of claimant's foot swelling, which SAIF argues should be "legally excluded from consideration" because it is a "predisposition" or "susceptibility," and not a "cause," and (2) the experts did not explicitly describe claimant's foot swelling as the "major contributing cause" of his treatment. Held: The board did not err when it considered claimant's foot swelling in determining the major cause of claimant's consequential condition under ORS 656.005(7)(a) (A), because the swelling was undisputedly part of claimant's original compensable injury, and was therefore not "legally excluded from consideration." Further, there are no "magic words" required from medical experts, and the board is free to draw reasonable inferences from the record as a whole in evaluating whether a medical opinion establishes the "major contributing cause" of a condition. Affirmed.

[End of Document]

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