fifth assignment error in Oregon

2025The county argues that LUBA erred in concluding that the county’s interpretation of DCC 18.128.015(A)(2) was an unreasonable limitation on psilocybin business, under ORS 475A.530.5 We review LUBA’s construction of a stat- ute for legal error, Roberts v. City of Cannon Beach, 334 Or App 762, 770 , 557 P3d 1143 (2024).

2025The county argues that LUBA erred in concluding that the county’s interpretation of DCC 18.128.015(A)(2) was an unreasonable limitation on psilocybin business, under ORS 475A.530.5 We review LUBA’s construction of a stat- ute for legal error, Roberts v. City of Cannon Beach, 334 Or App 762, 770 , 557 P3d 1143 (2024).

2025The county argues that LUBA erred in concluding that the county’s interpretation of DCC 18.128.015(A)(2) was an unreasonable limitation on psilocybin business, under ORS 475A.530.5 We review LUBA’s construction of a stat- ute for legal error, Roberts v. City of Cannon Beach, 334 Or App 762, 770 , 557 P3d 1143 (2024).

2025The county argues that LUBA erred in concluding that the county’s interpretation of DCC 18.128.015(A)(2) was an unreasonable limitation on psilocybin business, under ORS 475A.530.5 We review LUBA’s construction of a stat- ute for legal error, Roberts v. City of Cannon Beach, 334 Or App 762, 770 , 557 P3d 1143 (2024).

2025Finally, petitioner argues in the fifth assignment of error that, in violation of Koller v. Veterinary Medical Examining Board, 243 Or App 639 , 258 P3d 1285 (2011), the statement of fees and costs does not include a “full account- ing” of costs or an “explanation” of the hourly rate of the individuals who performed work on the case.

2025Finally, petitioner argues in the fifth assignment of error that, in violation of Koller v. Veterinary Medical Examining Board, 243 Or App 639 , 258 P3d 1285 (2011), the statement of fees and costs does not include a “full account- ing” of costs or an “explanation” of the hourly rate of the individuals who performed work on the case.

2025LIMITING INSTRUCTION In this fifth assignment of error, defendant con- tends that the trial court plainly erred in failing to instruct the jury that McGinnis’s statements were admissible only Cite as 344 Or App 648 (2025) 659 against McGinnis and not against defendant.

2025LIMITING INSTRUCTION In this fifth assignment of error, defendant con- tends that the trial court plainly erred in failing to instruct the jury that McGinnis’s statements were admissible only Cite as 344 Or App 648 (2025) 659 against McGinnis and not against defendant.

2023The fifth assignment of error alleges that his convictions by nonunanimous verdicts vio- lated the federal constitution under Ramos v. Louisiana, 590 US ___ , 140 S Ct 1390 , 206 L Ed 2d 583 (2020).

2023The fifth assignment of error alleges that his convictions by nonunanimous verdicts vio- lated the federal constitution under Ramos v. Louisiana, 590 US ___ , 140 S Ct 1390 , 206 L Ed 2d 583 (2020).

2025On the fifth assignment of error, I would conclude that the Sixth Amendment, as incor- porated against the states via the Fourteenth Amendment, required the state to plead and prove to a jury beyond a reasonable doubt that defendant’s two violations of ORS 163.427 were separated by the “sufficient pause” described by ORS 161.067(3) as a prerequisite to punishing him twice for that course of conduct.1 Nevertheless, because that con- stitutional error was harmless beyond a reasonable doubt, I would affirm the judgment in full. 1 In the view of the majority opinion, “[d]efendant limits his argume

2021Cite as 312 Or App 32 (2021) 37 In the fifth assignment of error, petitioner contends that the board erred in relying on the dismissed charges in Sacramento Case No. 04F10942 in scoring Item 5, in view of his claim that another person committed those crimes.

2020Id. at 510-11 .

2013In a sixth assignment of error, defendant urges us to overrule a recent precedent, State v. Stamper, 197 Or App 413 , 106 P3d 172 , rev den, 339 Or 230 (2005).

2013In a sixth assignment of error, defendant urges us to overrule a recent precedent, State v. Stamper, 197 Or App 413 , 106 P3d 172 , rev den, 339 Or 230 (2005).

2013In a sixth assignment of error, defendant urges us to overrule a recent precedent, State v. Stamper, 197 Or App 413 , 106 P3d 172 , rev den, 339 Or 230 (2005).

2007We elect to follow that course, rather than the obverse, because of the virtual certainty that, if we did not address the fourth assignment of error on *481 appeal, the court’s ruling underlying that assignment of error would reoccur on remand. 2 For example, Wagner testified that the Tillamook Police Department policy authorized the use of such force only if “the life or safety” of the officer or of a third person is “in jeopardy.” 3 Article I, section 11, provides, in part: “[I]n the circuit court ten members of the jury may render a verdict of guilty or not guilty, save and except a verdict

2007We elect to follow that course, rather than the obverse, because of the virtual certainty that, if we did not address the fourth assignment of error on *481 appeal, the court’s ruling underlying that assignment of error would reoccur on remand. 2 For example, Wagner testified that the Tillamook Police Department policy authorized the use of such force only if “the life or safety” of the officer or of a third person is “in jeopardy.” 3 Article I, section 11, provides, in part: “[I]n the circuit court ten members of the jury may render a verdict of guilty or not guilty, save and except a verdict

2005The Court of Appeals rejected husband’s fifth assignment of error without discussion, 191 Or App at 302 n 3, and husband did not discuss that assignment in this court.

1988GOAL FIVE AND THE FOREST PRACTICES ACT The Court of Appeals considered the issues in this case twice, including a response to the petitions for rehearing, 1000 Friends v. LCDC (Lane Co.), 85 Or App 619 , 737 P2d 975 (1987).

1988GOAL FIVE AND THE FOREST PRACTICES ACT The Court of Appeals considered the issues in this case twice, including a response to the petitions for rehearing, 1000 Friends v. LCDC (Lane Co.), 85 Or App 619 , 737 P2d 975 (1987).

1972None has been furnished here either. ① State v. Losey, 3 Or App 612 , 475 P2d 430 , Sup Ct review denied (1970), disposes of the fifth assignment of error.

1972None has been furnished here either. ① State v. Losey, 3 Or App 612 , 475 P2d 430 , Sup Ct review denied (1970), disposes of the fifth assignment of error.

1970In North v. Cupp, supra, the Supreme Court, recognizing the possible effect upon an apparently voluntary act of an inherently coercive situation, said: “Petitioner bases his right to raise now the constitutional objection to the admissibility of the evidence on Fay v. Noia, 372 US 391 , 83 S Ct 822 , 9 L Ed 2d 837 (1963), and Henry v. Mississippi, 379 US 443 , 85 S Ct 564 , 13 L Ed 2d 408 (1965).

1970In North v. Cupp, supra, the Supreme Court, recognizing the possible effect upon an apparently voluntary act of an inherently coercive situation, said: “Petitioner bases his right to raise now the constitutional objection to the admissibility of the evidence on Fay v. Noia, 372 US 391 , 83 S Ct 822 , 9 L Ed 2d 837 (1963), and Henry v. Mississippi, 379 US 443 , 85 S Ct 564 , 13 L Ed 2d 408 (1965).

1970In North v. Cupp, supra, the Supreme Court, recognizing the possible effect upon an apparently voluntary act of an inherently coercive situation, said: “Petitioner bases his right to raise now the constitutional objection to the admissibility of the evidence on Fay v. Noia, 372 US 391 , 83 S Ct 822 , 9 L Ed 2d 837 (1963), and Henry v. Mississippi, 379 US 443 , 85 S Ct 564 , 13 L Ed 2d 408 (1965).

1970In North v. Cupp, supra, the Supreme Court, recognizing the possible effect upon an apparently voluntary act of an inherently coercive situation, said: “Petitioner bases his right to raise now the constitutional objection to the admissibility of the evidence on Fay v. Noia, 372 US 391 , 83 S Ct 822 , 9 L Ed 2d 837 (1963), and Henry v. Mississippi, 379 US 443 , 85 S Ct 564 , 13 L Ed 2d 408 (1965).

1964In the recent decision, State v. Cain, 230 Or 286 , 369 P2d 769 , which was based upon an indictment similar to the present one, this court, through Mr. Justice Sloan, ruled: “The last assignment complains that the judge failed to instruct on lesser charges.

1964In the recent decision, State v. Cain, 230 Or 286 , 369 P2d 769 , which was based upon an indictment similar to the present one, this court, through Mr. Justice Sloan, ruled: “The last assignment complains that the judge failed to instruct on lesser charges.

1961This assignment of error discloses no merit. *245 For the fifth assignment of error it is argued that the court erred in giving the following instruction: * * it is not necessary to prove that the crime, if any, was committed on the exact date alleged in the indictment, but it is sufficient in that connection if the State of Oregon shall establish to your satisfaction, beyond a reasonable doubt, that such crime, if any, was committed at any time within three years immediately before the filing of this indictment, which was December 1, 1959.” The rule governing this issue is stated in State v.

1961This assignment of error discloses no merit. *245 For the fifth assignment of error it is argued that the court erred in giving the following instruction: * * it is not necessary to prove that the crime, if any, was committed on the exact date alleged in the indictment, but it is sufficient in that connection if the State of Oregon shall establish to your satisfaction, beyond a reasonable doubt, that such crime, if any, was committed at any time within three years immediately before the filing of this indictment, which was December 1, 1959.” The rule governing this issue is stated in State v.

1960ORS 41.580 says: “In the following cases the agreement is void unless it, or some note or memorandum thereof, expressing the consideration, is in writing and subscribed by the party to be charged, or by his lawfully authorized agent; evidence, therefore, of the agreement shall not be received other than the writing, or secondary evidence of its contents in the cases prescribed by law: “(7) An agreement authorizing or employing an agent or broker to sell or purchase real estate for a compensation or commission; but if the note or memorandum of the agreement is in writing and subscribed by the p

1960ORS 41.580 says: “In the following cases the agreement is void unless it, or some note or memorandum thereof, expressing the consideration, is in writing and subscribed by the party to be charged, or by his lawfully authorized agent; evidence, therefore, of the agreement shall not be received other than the writing, or secondary evidence of its contents in the cases prescribed by law: “(7) An agreement authorizing or employing an agent or broker to sell or purchase real estate for a compensation or commission; but if the note or memorandum of the agreement is in writing and subscribed by the p

1956The defendant took no exception to the instruction, but argues here that it was erroneous in view of our decision in State v. Nodine, supra, 198 Or at 690-696 .

1953The fifth assignment of error reads: “The Court erred in refusing to hold said act unconstitutional in that it violates the provisions of Article XI, Section 9 of the Oregon Constitution in that it constitutes the aiding of private individuals by public funds and credit.” The part of Article XI, Section 9, of our Constitution upon which the plaintiffs rely, follows: “No county, city, town or other municipal corporation, by vote of its citizens, or otherwise, shall become a stockholder in any joint company, corporation, or association whatever, or raise money for, or loan its credit to, or in a

1953The fifth assignment of error reads: “The Court erred in refusing to hold said act unconstitutional in that it violates the provisions of Article XI, Section 9 of the Oregon Constitution in that it constitutes the aiding of private individuals by public funds and credit.” The part of Article XI, Section 9, of our Constitution upon which the plaintiffs rely, follows: “No county, city, town or other municipal corporation, by vote of its citizens, or otherwise, shall become a stockholder in any joint company, corporation, or association whatever, or raise money for, or loan its credit to, or in a

1953The fifth assignment of error reads: “The Court erred in refusing to hold said act unconstitutional in that it violates the provisions of Article XI, Section 9 of the Oregon Constitution in that it constitutes the aiding of private individuals by public funds and credit.” The part of Article XI, Section 9, of our Constitution upon which the plaintiffs rely, follows: “No county, city, town or other municipal corporation, by vote of its citizens, or otherwise, shall become a stockholder in any joint company, corporation, or association whatever, or raise money for, or loan its credit to, or in a

1953Our belief that the statute and its authorized expenditure of public money does not conflict with Article XI, § 9, Constitution of Oregon, is fortified by the following decisions which this court rendered *271 in the past: Morris v. City of Salem, 179 Or 666 , 174 P2d 192; Johnson v. School District No. 1, 128 Or 9 , 270 P 764 , 273 P 386 ; McMahan v. Olcott, supra; and Churchill v. Grants Pass, supra. We find no merit in the fifth assignment of error.

1953Our belief that the statute and its authorized expenditure of public money does not conflict with Article XI, § 9, Constitution of Oregon, is fortified by the following decisions which this court rendered *271 in the past: Morris v. City of Salem, 179 Or 666 , 174 P2d 192; Johnson v. School District No. 1, 128 Or 9 , 270 P 764 , 273 P 386 ; McMahan v. Olcott, supra; and Churchill v. Grants Pass, supra. We find no merit in the fifth assignment of error.

1953Our belief that the statute and its authorized expenditure of public money does not conflict with Article XI, § 9, Constitution of Oregon, is fortified by the following decisions which this court rendered *271 in the past: Morris v. City of Salem, 179 Or 666 , 174 P2d 192; Johnson v. School District No. 1, 128 Or 9 , 270 P 764 , 273 P 386 ; McMahan v. Olcott, supra; and Churchill v. Grants Pass, supra. We find no merit in the fifth assignment of error.

1953Our belief that the statute and its authorized expenditure of public money does not conflict with Article XI, § 9, Constitution of Oregon, is fortified by the following decisions which this court rendered *271 in the past: Morris v. City of Salem, 179 Or 666 , 174 P2d 192; Johnson v. School District No. 1, 128 Or 9 , 270 P 764 , 273 P 386 ; McMahan v. Olcott, supra; and Churchill v. Grants Pass, supra. We find no merit in the fifth assignment of error.

1887(Rens Glass Factory v. Reid, 5 Cow. 587 ; Lynch v. Bogy, 19 Mo. 170 ; Watson v. Blaylock, 2 Cost. [S. C.] 351; Bailey v. Gibbs, 9 Mo. 45 ; Jones v. Wilson, 3 Johns. 434 ; Beach v. Vandenburgh, 10 Johns. 360 ; Young v. Dibrell, 26 Tenn. 270 ; Lewis, Admin'r, v. Lewis, 3 Strobh. 530.) The court, therefore, erred in giving the instruction mentioned in the fifth assignment of error.

1887(Rens Glass Factory v. Reid, 5 Cow. 587 ; Lynch v. Bogy, 19 Mo. 170 ; Watson v. Blaylock, 2 Cost. [S. C.] 351; Bailey v. Gibbs, 9 Mo. 45 ; Jones v. Wilson, 3 Johns. 434 ; Beach v. Vandenburgh, 10 Johns. 360 ; Young v. Dibrell, 26 Tenn. 270 ; Lewis, Admin'r, v. Lewis, 3 Strobh. 530.) The court, therefore, erred in giving the instruction mentioned in the fifth assignment of error.

1887(Rens Glass Factory v. Reid, 5 Cow. 587 ; Lynch v. Bogy, 19 Mo. 170 ; Watson v. Blaylock, 2 Cost. [S. C.] 351; Bailey v. Gibbs, 9 Mo. 45 ; Jones v. Wilson, 3 Johns. 434 ; Beach v. Vandenburgh, 10 Johns. 360 ; Young v. Dibrell, 26 Tenn. 270 ; Lewis, Admin'r, v. Lewis, 3 Strobh. 530.) The court, therefore, erred in giving the instruction mentioned in the fifth assignment of error.

1887(Rens Glass Factory v. Reid, 5 Cow. 587 ; Lynch v. Bogy, 19 Mo. 170 ; Watson v. Blaylock, 2 Cost. [S. C.] 351; Bailey v. Gibbs, 9 Mo. 45 ; Jones v. Wilson, 3 Johns. 434 ; Beach v. Vandenburgh, 10 Johns. 360 ; Young v. Dibrell, 26 Tenn. 270 ; Lewis, Admin'r, v. Lewis, 3 Strobh. 530.) The court, therefore, erred in giving the instruction mentioned in the fifth assignment of error.

1887(Rens Glass Factory v. Reid, 5 Cow. 587 ; Lynch v. Bogy, 19 Mo. 170 ; Watson v. Blaylock, 2 Cost. [S. C.] 351; Bailey v. Gibbs, 9 Mo. 45 ; Jones v. Wilson, 3 Johns. 434 ; Beach v. Vandenburgh, 10 Johns. 360 ; Young v. Dibrell, 26 Tenn. 270 ; Lewis, Admin'r, v. Lewis, 3 Strobh. 530.) The court, therefore, erred in giving the instruction mentioned in the fifth assignment of error.