precise standard in Oregon

2025Nonetheless, having reviewed the record, we conclude that it is not obvious and beyond reasonable dispute that Golditch’s testimony, or any portion thereof, was scientific evidence that required a special foundation rather than testimony Nonprecedential Memo Op: 342 Or App 127 (2025) 131 based on her knowledge, skill, experience, training and edu- cation.

2025Nonetheless, having reviewed the record, we conclude that it is not obvious and beyond reasonable dispute that Golditch’s testimony, or any portion thereof, was scientific evidence that required a special foundation rather than testimony Nonprecedential Memo Op: 342 Or App 127 (2025) 131 based on her knowledge, skill, experience, training and edu- cation.

2023We also acknowledged that “it is difficult to articulate a precise standard as to when evidence of ‘observation’ that occurred during a sexual-abuse episode will be legally sufficient for a display count to survive a motion for judgment for acquittal” but that the ultimate question “is whether, on the record that exists, a reasonable juror could find that the defendant caused the child to participate or engage in sexually explicit conduct for the defendant to observe, as opposed to the obser- vation being incidental to the defendant’s sexual abuse.” Id. at 612 n 8 (first emphasis in Clay, seco

2023We also acknowledged that “it is difficult to articulate a precise standard as to when evidence of ‘observation’ that occurred during a sexual-abuse episode will be legally sufficient for a display count to survive a motion for judgment for acquittal” but that the ultimate question “is whether, on the record that exists, a reasonable juror could find that the defendant caused the child to participate or engage in sexually explicit conduct for the defendant to observe, as opposed to the obser- vation being incidental to the defendant’s sexual abuse.” Id. at 612 n 8 (first emphasis in Clay, seco

2017The Court of Appeals identified the issue as “the precise standard for measuring whether a new sentence triggers the presumption of vindictiveness,” which, it observed, “since the issuance of Pearce , ‘has been the subject of some confusion.’” State v. Febuary, 274 Or App 820, 826 , 361 P3d 661 (2015) (Febuary II) (quoting United States v. Campbell, 106 F3d 64, 67 (5th Cir 1997)).

2017The Court of Appeals identified the issue as “the precise standard for measuring whether a new sentence triggers the presumption of vindictiveness,” which, it observed, “since the issuance of Pearce , ‘has been the subject of some confusion.’” State v. Febuary, 274 Or App 820, 826 , 361 P3d 661 (2015) (Febuary II) (quoting United States v. Campbell, 106 F3d 64, 67 (5th Cir 1997)).

2013As this court has stated in another context, determining whether an award of damages is “substantial” requires “flexibility and a consideration of the facts and circumstances that each case presents.” Hamlin v. Hampton Lumber Mills, Inc., 349 Or 526, 537 , 246 P3d 1121 (2011).

2013As this court has stated in another context, determining whether an award of damages is “substantial” requires “flexibility and a consideration of the facts and circumstances that each case presents.” Hamlin v. Hampton Lumber Mills, Inc., 349 Or 526, 537 , 246 P3d 1121 (2011).

2000“The second methodology permits recovery for a sexually ‘hostile environment.’ Meritor Savings Bank v. Vinson, 477 US 57, 67 , 106 S Ct 2399 , 91 L Ed 2d 49 (1986), says: *177 “ ‘For sexual harassment to be actionable, it must be sufficiently severe or pervasive “to alter the conditions of [the victim’s] employment and create an abusive working environment.’ ” “* * * In applying this methodology, the Court has not adopted a precise standard for determining an employer’s liability for a supervisor’s conduct, but has applied only general agency principles.

2000“The second methodology permits recovery for a sexually ‘hostile environment.’ Meritor Savings Bank v. Vinson, 477 US 57, 67 , 106 S Ct 2399 , 91 L Ed 2d 49 (1986), says: *177 “ ‘For sexual harassment to be actionable, it must be sufficiently severe or pervasive “to alter the conditions of [the victim’s] employment and create an abusive working environment.’ ” “* * * In applying this methodology, the Court has not adopted a precise standard for determining an employer’s liability for a supervisor’s conduct, but has applied only general agency principles.

1986We likewise declined to enunciate a precise test under ORCP 67B., but said that the following factors, when relevant, should be considered by the trial court: “* * * any prejudice, hardship or injustice caused to a party by postponing the appeal until complete adjudication of the *309 other claims or interests of other parties; any prejudice caused to a party by postponing trial on the other claims or interests of other parties while the appeal is pending; the likelihood that an early appeal would avoid the need for further litigation or simplify the trial; the relationship between the adjudic

1986In May , the court said: “ ‘In construing ORCP 67B., we note that federal caselaw has not developed a precise test for determining when there is no just reason to delay the entry of judgment * * *. [Citations omitted.] We, too, decline to enunciate a precise test, but the following factors, whenever relevant, should be considered: * * * any prejudice caused to a party by postponing trial on the other claims or interests of other parties while the appeal is pending * * *.’ 297 Or at 531 .

2022Steiner, 350 US at 256 ; King Packing, 350 US at 261 ; see also 29 CFR § 785.25 (discussing Steiner, King Packing, and the “integral and indispensable” test).8 2.

2022To make a case for plain error review, then, an appellant must “identify the precise error, specify the state of the proceedings when the error was made, and Nonprecedential Memo Op: 322 Or App 97 (2022) 99 set forth pertinent quotations of the record where the chal- lenged error was made.” ORAP 5.45(4)(b).

2019Although the Supreme Court has not considered the precise challenge that defendant now raises to the second question, the Court expressly "has approved the jury's consideration of future dangerousness during the penalty phase of a capital trial, recognizing that a defendant's future dangerousness bears on all sentencing determinations made in our criminal justice system." Simmons v. South Carolina , 512 U.S. 154 , 162, 114 S.Ct. 2187 , 129 L.Ed.2d 133 (1994).

2019Although the Supreme Court has not considered the precise challenge that defendant now raises to the second question, the Court expressly "has approved the jury's consideration of future dangerousness during the penalty phase of a capital trial, recognizing that a defendant's future dangerousness bears on all sentencing determinations made in our criminal justice system." Simmons v. South Carolina , 512 U.S. 154 , 162, 114 S.Ct. 2187 , 129 L.Ed.2d 133 (1994).

2015State ex rel Johnson v. Schwartz, 26 Or App 279, 283 , 552 P2d 571 (1976).

2015State ex rel Johnson v. Schwartz, 26 Or App 279, 283 , 552 P2d 571 (1976).

2015For example, as the Court of Appeals framed it, “The precise inquiry is not whether unlawful activity exists in a place, but whether that activity is being ‘maintained or conducted’ therein.” Gonzalez-Valenzuela, 258 Or App at 268 (emphasis added). 10 Likewise, the state argues in its brief that the intent of the statute was to prevent minors “from being at the place where the [drug] activity is being maintained or conducted.” (Emphasis added.) The state also argues that “the car carrying defendant and her daughters was a place where unlawful drug activity was maintained or conducted.” *466 (E

2015For example, as the Court of Appeals framed it, “The precise inquiry is not whether unlawful activity exists in a place, but whether that activity is being ‘maintained or conducted’ therein.” Gonzalez-Valenzuela, 258 Or App at 268 (emphasis added). 10 Likewise, the state argues in its brief that the intent of the statute was to prevent minors “from being at the place where the [drug] activity is being maintained or conducted.” (Emphasis added.) The state also argues that “the car carrying defendant and her daughters was a place where unlawful drug activity was maintained or conducted.” *466 (E

2015For example, as the Court of Appeals framed it, “The precise inquiry is not whether unlawful activity exists in a place, but whether that activity is being ‘maintained or conducted’ therein.” Gonzalez-Valenzuela, 258 Or App at 268 (empha- sis added).10 Likewise, the state argues in its brief that the intent of the statute was to prevent minors “from being at the place where the [drug] activity is being maintained or conducted.” (Emphasis added.) The state also argues that “the car carrying defendant and her daughters was a place where unlawful drug activity was maintained or conducted.” 10 Thi

2015For example, as the Court of Appeals framed it, “The precise inquiry is not whether unlawful activity exists in a place, but whether that activity is being ‘maintained or conducted’ therein.” Gonzalez-Valenzuela, 258 Or App at 268 (empha- sis added).10 Likewise, the state argues in its brief that the intent of the statute was to prevent minors “from being at the place where the [drug] activity is being maintained or conducted.” (Emphasis added.) The state also argues that “the car carrying defendant and her daughters was a place where unlawful drug activity was maintained or conducted.” 10 Thi

2015For example, as the Court of Appeals framed it, “The precise inquiry is not whether unlawful activity exists in a place, but whether that activity is being ‘maintained or conducted’ therein.” Gonzalez-Valenzuela, 258 Or App at 268 (emphasis added). 10 Likewise, the state argues in its brief that the intent of the statute was to prevent minors “from being at the place where the [drug] activity is being maintained or conducted.” (Emphasis added.) The state also argues that “the car carrying defendant and her daughters was a place where unlawful drug activity was maintained or conducted.” *466 (E

2006Although there appears to be some disagreement as to the precise test to use in determining whether a sentence violates Article I, section 16, and whether the same test applies to both the “cruel and unusual” clause and the proportionality clause, see State v. Thorp, 166 Or App 564 , 2 P3d 903 (2000), rev dismissed, 332 Or 559 (2001), the irreducible core of our analysis is this: a sentence violates the proportionality requirement of Article I, section 16, only if it “is so disproportionate to the offense as to shock the moral sense of all reasonable persons as to what is right and proper.” St

2006Although there appears to be some disagreement as to the precise test to use in determining whether a sentence violates Article I, section 16, and whether the same test applies to both the “cruel and unusual” clause and the proportionality clause, see State v. Thorp, 166 Or App 564 , 2 P3d 903 (2000), rev dismissed, 332 Or 559 (2001), the irreducible core of our analysis is this: a sentence violates the proportionality requirement of Article I, section 16, only if it “is so disproportionate to the offense as to shock the moral sense of all reasonable persons as to what is right and proper.” St

2006Although there appears to be some disagreement as to the precise test to use in determining whether a sentence violates Article I, section 16, and whether the same test applies to both the “cruel and unusual” clause and the proportionality clause, see State v. Thorp, 166 Or App 564 , 2 P3d 903 (2000), rev dismissed, 332 Or 559 (2001), the irreducible core of our analysis is this: a sentence violates the proportionality requirement of Article I, section 16, only if it “is so disproportionate to the offense as to shock the moral sense of all reasonable persons as to what is right and proper.” St

2006Although there appears to be some disagreement as to the precise test to use in determining whether a sentence violates Article I, section 16, and whether the same test applies to both the “cruel and unusual” clause and the proportionality clause, see State v. Thorp, 166 Or App 564 , 2 P3d 903 (2000), rev dismissed, 332 Or 559 (2001), the irreducible core of our analysis is this: a sentence violates the proportionality requirement of Article I, section 16, only if it “is so disproportionate to the offense as to shock the moral sense of all reasonable persons as to what is right and proper.” St

2005Eckles v. State of Oregon, 306 Or 380 , 760 P2d 846 (1988), appeal dismissed, 490 US 1032 (1989), lends additional support.

2005Eckles v. State of Oregon, 306 Or 380 , 760 P2d 846 (1988), appeal dismissed, 490 US 1032 (1989), lends additional support.

2005Eckles v. State of Oregon, 306 Or 380 , 760 P2d 846 (1988), appeal dismissed, 490 US 1032 (1989), lends additional support.

2000We do not consider that third assignment of error, because it was not preserved in the trial court and, in any event, this court rejected that precise claim in State v. Nefstad, 309 Or 523, 526-27 , 789 P2d 1326 (1990) (prosecutor’s statement to effect that “I anticipate” there will be a penalty phase to the trial held not to constitute improper expression of belief in the defendant’s guilt).

2000We do not consider that third assignment of error, because it was not preserved in the trial court and, in any event, this court rejected that precise claim in State v. Nefstad, 309 Or 523, 526-27 , 789 P2d 1326 (1990) (prosecutor’s statement to effect that “I anticipate” there will be a penalty phase to the trial held not to constitute improper expression of belief in the defendant’s guilt).

1975For example, see State ex rel *36 White Lbr. v. Sulmonetti, 252 Or 121 , 448 P2d 571 (1968), interpreting the long-arm statute; Hartford Accident v. Pyle, 271 Or 97 , 530 P2d 843 (1975), when judgments can be set off.

1975For example, see State ex rel *36 White Lbr. v. Sulmonetti, 252 Or 121 , 448 P2d 571 (1968), interpreting the long-arm statute; Hartford Accident v. Pyle, 271 Or 97 , 530 P2d 843 (1975), when judgments can be set off.

1975For example, see State ex rel *36 White Lbr. v. Sulmonetti, 252 Or 121 , 448 P2d 571 (1968), interpreting the long-arm statute; Hartford Accident v. Pyle, 271 Or 97 , 530 P2d 843 (1975), when judgments can be set off.

1975For example, see State ex rel *36 White Lbr. v. Sulmonetti, 252 Or 121 , 448 P2d 571 (1968), interpreting the long-arm statute; Hartford Accident v. Pyle, 271 Or 97 , 530 P2d 843 (1975), when judgments can be set off.

1968The best expression we have found of the precise rule which delineates the particular kind of factual situation in which the corporation is permitted the remedy of the recovery of secret profits is in Wills v. Nehalem Coal Co., supra, 52 Or at 81 , and it is this: “If two or more persons associate themselves for the purpose of purchasing property, and one *501 of them represents to the others that particular property can be bought for a designated price, which he procures to be paid by the associates, when in truth the purchase is for a less sum, and he has received the difference between the

1912Nichols & Janes’ Case, 48 Va. 589 .

1901It is entirely a question of degree, the true test being whether the use is of such a character as to affect materially the equally beneficial use of the stream by others”: Mayor, etc. of Baltimore v. Appold, 42 Md. 442, 456 .