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.courts.oregon.gov/publications (503) 986-5634

May 20, 2020

The Court of Appeals issued these opinions:

State of Oregon v. Jaime McCray (A165824 - Lake County Circuit Court) J. C. R. v. Colin Joel McNulty* (A166592 - Washington County Circuit Court) State of Oregon v. Kathryn Jane Edwards (A164601 - Washington County Circuit Court) Patrick Allen McMillan v. Brandon Kelly (A163801 - Marion County Circuit Court) State of Oregon v. Yevette Jean Sunderman (A164915 - Deschutes County Circuit Court) Green Thumb Landscape and Maintenance, Inc. v. Bureau of Labor and Industries (A164444 - Oregon Bureau of Labor and Industries) Lamar Alex Davis v. Brad Cain (A168254 - Malheur County Circuit Court)

The Court of Appeals affirmed these cases without opinion:

State of Oregon v. Cody Marshall Edwards (A168449 - Marion County Circuit Court) State of Oregon v. Vitaliy Dovgan (A168539 - Multnomah County Circuit Court) State of Oregon v. Shasta Taylor Phillips (A168613 - Multnomah County Circuit Court)

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

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Erica Marie Sharp v. Coffee Creek Correctional Institution (A168705 - Washington County Circuit Court) State of Oregon v. Timothy Emmett Walsh II (A168876 - Multnomah County Circuit Court) State of Oregon v. Jeanna Rae McKibben (A169303 - Yamhill County Circuit Court) State of Oregon v. Manuel Miranda Baldwin (A169335 - Washington County Circuit Court) State of Oregon v. Scott Allen Hawkins (A169609 - Coos County Circuit Court) Clifford Joe Graham v. Garrett Laney (A169943 - Marion County Circuit Court) State of Oregon v. T. S. (A171060 - Morrow County Circuit Court) Department of Human Services v. S. T. C. (A172594 - Lane County Circuit Court) Department of Human Services v. L. M. (A172991 - Klamath County Circuit Court) Eric Urstadt v. Washington County (A173536 - Land Use Board of Appeals) Todd Kuether v. Washington County (A173549 - Land Use Board of Appeals)

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State of Oregon v. Jaime McCray (Armstrong, P. J.)

Defendant appeals a judgment of conviction for possession of methamphetamine, assigning error to the trial court's denial of her motion to suppress evidence seized by police after she gave consent to search her trailer. Defendant contends that the state failed to prove that defendant's consent was not the result of a threat to arrest or a promise of treatment rather than prosecution. Held: The trial court did not err in rejecting defendant's contention that the state had failed to prove that defendant's consent to search was not the result of coercion or promise of leniency. If defendant's consent was given as a result of a threat to arrest, the threat was not unlawful, because the officer had probable cause to make the arrest at the time he made the threat. The evidence does not support a finding that the officer made a promise of treatment in lieu of arrest in exchange for defendant's consent to search. Affirmed.

J. C. R. v. Colin Joel McNulty (Armstrong, P. J.)

Petitioner appeals an order dismissing a citation that sought a stalking protective order (SPO) against respondent, ORS 163.738, contending that the trial court erred in concluding that the SPO could not issue because petitioner had not shown that respondent posed a "credible threat." Held: The correct standard for "alarm" in determining whether to issue an SPO based on non-expressive conduct is whether the conduct

2 gave rise to an objectively reasonable fear of a threat of physical injury. Although the trial court erroneously used the phrase "credible threat" to describe the conduct required for an SPO based on nonexpressive conduct, the error does not require dismissal, because the evidence in the record would not support a finding that respondent's nonexpressive conduct gave rise to an objectively reasonable fear of a threat of physical injury. Thus, the trial court reached the correct disposition. Affirmed.

State of Oregon v. Kathryn Jane Edwards (Lagesen, P. J.)

Pursuant to a stipulated facts trial, defendant was convicted of one count of possession of methamphetamine, ORS 475.894. Deputies found the methamphetamine in the backpack that defendant was wearing at the time of her arrest on an outstanding warrant after they removed it from her and searched it without a warrant. On appeal, defendant assigns error to the trial court's denial of her motion to suppress the evidence in the backpack. She contends that the court erred when it determined that the deputies lawfully seized the backpack before searching it and that that error was not harmless. Held: The trial court erred in denying defendant's motion to suppress, because the state failed to show that a recognized warrant exception allowed for the warrantless seizure of the backpack under the circumstances present here. On this record, that error was not harmless. Reversed and remanded.

Patrick Allen McMillan v. Brandon Kelly (Tookey, J.)

Petitioner appeals a judgement denying him post-conviction relief. On appeal, petitioner contends that, during his criminal trial, his trial counsel was inadequate and ineffective for failing to object to the "natural-and-probable-consequence" jury instruction, which the Supreme Court declared to be a misstatement of Oregon law in State v. Lopez-Minjarez, 350 Or 576, 582, 260 P3d 439 (2011), and for failing to object to the prosecutor's closing argument, which misstated Oregon law as to accomplice liability. Held: The post-conviction court erred. Petitioner's trial counsel's performance was constitutionally deficient when he failed to object to the natural-and-probable-consequence jury instruction and failed to object to the prosecutor's closing argument. Additionally, for 10 of the 12 crimes of which the jury convicted petitioner, the natural-and-probable-consequence jury instruction, coupled with the prosecutor's closing argument, could have had a tendency to affect the result of the prosecution. Reversed and remanded with instructions for the post-conviction court to grant petitioner relief on Counts 2 to 10 and Count 12; otherwise affirmed.

State of Oregon v. Yevette Jean Sunderman (Tookey, J.)

In this consolidated criminal appeal, defendant appeals two judgments of conviction. In case number 15CR44342, the state charged defendant with a single count of unlawful possession of methamphetamine, ORS 475.894. In case number 15CR50447, the state charged defendant with one count each of unlawful delivery of methamphetamine, ORS 475.890, and unlawful possession of methamphetamine, ORS 475.894. Following the denial of her motions to suppress in both cases, defendant entered conditional guilty pleas to the charged crimes. On appeal, defendant contends that the trial court erred when it denied her motions to suppress in both cases, because the searches that resulted in the discovery of methamphetamine were not conducted pursuant to a search warrant and no exception to the warrant requirement provided a constitutional justification for either search. Held: The Court of Appeals accepted the state's concession that the trial court erred when it denied defendant's motion to suppress in case number 15CR44342 and reversed and remanded without further discussion. With regard to the trial court's denial of defendant's motion to suppress in case number 15CR50447, the Court of Appeals concluded that the state failed to offer sufficient evidence to prove that defendant actually consented to a search of her purse. Furthermore, the facts known 3 to the officer at the time of the search did not provide the officer with probable cause to believe that methamphetamine would be found in defendant's car, and, thus, the automobile exception did not justify the warrantless search of defendant's purse. Accordingly, the Court of Appeals concluded that the trial court erred when it denied defendant's motion to suppress in case number 15CR50447. Case No. 15CR44342 reversed and remanded; Case No. 15CR50447 reversed and remanded.

Green Thumb Landscape and Maintenance, Inc. v. Bureau of Labor and Industries (James, J.)

Based on its finding that petitioners intentionally misclassified Bricklayers as Landscape Laborers for their work laying pavers with mortar, resulting in underpayment of wages, the Bureau of Labor and Industries (BOLI) debarred petitioners from receiving any contract or subcontract for public works for three years. In their petition for judicial review, petitioners argue that BOLI's conclusion on intentionality is not supported by substantial evidence. Held: The record shows that the prevailing wage rate for laying pavers with mortar was clearly identifiable by reference to the documents provided by BOLI, which petitioners were familiar with and had used in the past. Thus, BOLI's determination that petitioners acted intentionally in misclassifying workers was a permissible nonspeculative inference, supported by substantial evidence. Affirmed.

Lamar Alex Davis v. Brad Cain (Aoyagi, J.)

In this post-conviction proceeding, petitioner appeals a judgment denying him post-conviction relief. Petitioner was charged and tried for first-degree rape, based on his allegedly having sexual intercourse with a physically helpless person, J. Petitioner claims that his trial counsel was constitutionally inadequate for failing to object to the prosecutor's vouching in opening statement regarding the state's key witness, Shannon. The prosecutor preemptively addressed the possibility that Shannon might change her story at trial, explaining to the jury that what Shannon had told the police was true and that, if she lied at trial, it was his job to try to get her to tell the truth. Shannon subsequently changed her story somewhat, although not as much as the prosecutor had anticipated. The jury found petitioner guilty, and he was convicted. Petitioner petitioned for post-conviction relief, claiming inadequate assistance of trial counsel in failing to object to the prosecutor's vouching. The superintendent does not dispute that the prosecutor vouched but argues that petitioner's trial counsel's lack of objection was strategically reasonable and that petitioner did not demonstrate prejudice. Held: The post-conviction court erred in denying post-conviction relief. The statements made by the prosecutor constituted improper vouching. Under the circumstances, it was not objectively reasonable for petitioner's trial counsel not to object to the vouching, so counsel rendered inadequate assistance. Given the significance of Shannon's credibility and how the case was tried, trial counsel's inadequate assistance could have tended to affect the outcome of the case. Reversed and remanded as to first claim; otherwise affirmed.

[End of Document]

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