third assignment error in Oregon

2026Cite as 350 Or App 663 (2026) 665 arrest on the material witness warrant, law enforcement interviewed S, who told them that she did not want to go to court, that she was “not going” back to Oregon, and that if she was forced to return, she would “not say * * * anything.” S was released from custody before petitioner’s trial date, and law enforcement were unable to find her.

2026Cite as 350 Or App 663 (2026) 665 arrest on the material witness warrant, law enforcement interviewed S, who told them that she did not want to go to court, that she was “not going” back to Oregon, and that if she was forced to return, she would “not say * * * anything.” S was released from custody before petitioner’s trial date, and law enforcement were unable to find her.

2025Two Supreme Court decisions bear on the issue: State v. Barnes, 329 Or 327 , 986 P2d 1160 (1997), and Owen.

2025Two Supreme Court decisions bear on the issue: State v. Barnes, 329 Or 327 , 986 P2d 1160 (1997), and Owen.

2025Assuming without deciding that defendant’s chal- lenges to the prosecutor’s statements identified in his second and third assignments of error are preserved, we agree that some of the prosecutor’s comments pointed to by defendant on appeal were improper, see State v. Muniz, 332 Or App 56, 60 , 548 P3d 172 (2024) (describing improper appeal to juror’s emotions), but that the error in permitting the com- ments was ultimately harmless in the context of this case.

2025Assuming without deciding that defendant’s chal- lenges to the prosecutor’s statements identified in his second and third assignments of error are preserved, we agree that some of the prosecutor’s comments pointed to by defendant on appeal were improper, see State v. Muniz, 332 Or App 56, 60 , 548 P3d 172 (2024) (describing improper appeal to juror’s emotions), but that the error in permitting the com- ments was ultimately harmless in the context of this case.

1969With reference to the lineup conducted without defendant’s counsel being present, the claim of error is based upon United States v. Wade, 388 US 218 , 87 S Ct 1926 , 18 L ed 2d 1149 (1967), and Gilbert v. California, 388 US 263 , 87 S Ct 1951 , 18 L ed 2d 1178 (1967).

1969With reference to the lineup conducted without defendant’s counsel being present, the claim of error is based upon United States v. Wade, 388 US 218 , 87 S Ct 1926 , 18 L ed 2d 1149 (1967), and Gilbert v. California, 388 US 263 , 87 S Ct 1951 , 18 L ed 2d 1178 (1967).

1969With reference to the lineup conducted without defendant’s counsel being present, the claim of error is based upon United States v. Wade, 388 US 218 , 87 S Ct 1926 , 18 L ed 2d 1149 (1967), and Gilbert v. California, 388 US 263 , 87 S Ct 1951 , 18 L ed 2d 1178 (1967).

1969With reference to the lineup conducted without defendant’s counsel being present, the claim of error is based upon United States v. Wade, 388 US 218 , 87 S Ct 1926 , 18 L ed 2d 1149 (1967), and Gilbert v. California, 388 US 263 , 87 S Ct 1951 , 18 L ed 2d 1178 (1967).

2026Penney Co., 297 Or 695, 705-06 , 688 P2d 811 (1984) (on review of a denial of a directed verdict, stating, “The jury weighed the evidence, judged the credibility of the witnesses and resolved all 1 In its opening brief, defendant raised a third assignment of error to the trial court’s refusal to dismiss three jurors for cause.

2026Penney Co., 297 Or 695, 705-06 , 688 P2d 811 (1984) (on review of a denial of a directed verdict, stating, “The jury weighed the evidence, judged the credibility of the witnesses and resolved all 1 In its opening brief, defendant raised a third assignment of error to the trial court’s refusal to dismiss three jurors for cause.

2026See ORS 82.010(1)(a) (providing for the accrual of prejudgment inter- est on “[a]ll moneys after they become due”); Cumming v. Nipping, 337 Or App 545, 549 , 564 P3d 148 (2025) (explain- ing when prejudgment interest accrues).

2026See ORS 82.010(1)(a) (providing for the accrual of prejudgment inter- est on “[a]ll moneys after they become due”); Cumming v. Nipping, 337 Or App 545, 549 , 564 P3d 148 (2025) (explain- ing when prejudgment interest accrues).

2025At issue with regard to Claim 139 as framed by the superintendent’s third assignment of error is whether ORCP 12 B required the post-conviction court to disre- gard the “error” or “defect” in the amended answer to the sixth amended petition for post-conviction relief—i.e., the Cite as 342 Or App 682 (2025) 705 scrivener’s error referencing paragraph “83439” instead of paragraph “8439.” The words “error” and “defect” in ORCP 12 B describe “acts that fail to achieve or complete something that a person has attempted to do.” Mulier v. Johnson, 332 Or 344, 350 , 29 P3d 1104 (2001).

2025At issue with regard to Claim 139 as framed by the superintendent’s third assignment of error is whether ORCP 12 B required the post-conviction court to disre- gard the “error” or “defect” in the amended answer to the sixth amended petition for post-conviction relief—i.e., the Cite as 342 Or App 682 (2025) 705 scrivener’s error referencing paragraph “83439” instead of paragraph “8439.” The words “error” and “defect” in ORCP 12 B describe “acts that fail to achieve or complete something that a person has attempted to do.” Mulier v. Johnson, 332 Or 344, 350 , 29 P3d 1104 (2001).

2025At issue with regard to Claim 139 as framed by the superintendent’s third assignment of error is whether ORCP 12 B required the post-conviction court to disre- gard the “error” or “defect” in the amended answer to the sixth amended petition for post-conviction relief—i.e., the Cite as 342 Or App 682 (2025) 705 scrivener’s error referencing paragraph “83439” instead of paragraph “8439.” The words “error” and “defect” in ORCP 12 B describe “acts that fail to achieve or complete something that a person has attempted to do.” Mulier v. Johnson, 332 Or 344, 350 , 29 P3d 1104 (2001).

2024Plaintiffs argued that the pay- ments were federal Social Security benefits that constituted inadmissible evidence of collateral source benefits under ORS 31.580(2).2 The trial court denied the motion as to those payments. 1 In their reply brief, plaintiffs withdrew the third assignment of error raised in the opening brief. 2 ORS 31.580(2) provides: “Evidence of the benefit described in subsection (1) of this section and the cost of obtaining it is not admissible at trial, but shall be received by the court by affidavit submitted after the verdict by any party to the action.” Nonprecedential M

2023Cite as 325 Or App 355 (2023) 357 not sell by that date, then wife would have the opportunity to sell it with her chosen realtor.

2022State v. Prange, 247 Or App 254, 260 , 268 P3d 749 (2011).

2022State v. Prange, 247 Or App 254, 260 , 268 P3d 749 (2011).

2022Cite as 320 Or App 205 (2022) 211 with policy making authority from ALJ without authority to articulate policy through interpretation of rules).

2021Subsequent to the United States Supreme Court’s ruling in Ramos v. Louisiana, 590 US ___ , 140 S Ct 1390 , 206 L Ed 2d 583 (2020), the Oregon Supreme Court explained that nonunanimous jury instruc- tion was not a structural error that categorically requires reversal.

2021Subsequent to the United States Supreme Court’s ruling in Ramos v. Louisiana, 590 US ___ , 140 S Ct 1390 , 206 L Ed 2d 583 (2020), the Oregon Supreme Court explained that nonunanimous jury instruc- tion was not a structural error that categorically requires reversal.

2021Baker, 305 Or App at 818-19 .

2021In determin- ing whether to exercise our discretion to correct an error alleged to be plain, we take into account whether granting relief would “subvert the comity considerations [between trial courts and the appellate court] that underlie the pres- ervation requirement.” State v. Jury, 185 Or App 132, 140 , 57 P3d 970 (2002), rev den, 335 Or 504 (2003).

2021In determin- ing whether to exercise our discretion to correct an error alleged to be plain, we take into account whether granting relief would “subvert the comity considerations [between trial courts and the appellate court] that underlie the pres- ervation requirement.” State v. Jury, 185 Or App 132, 140 , 57 P3d 970 (2002), rev den, 335 Or 504 (2003).

2021Further, defendant cites State v. Brown, 53 Or App 666, 669 , 633 P2d 20 (1981), for the prop- osition that a probation revocation is remanded when the “primary” basis of the revocation was a vacated conviction.

2021Further, defendant cites State v. Brown, 53 Or App 666, 669 , 633 P2d 20 (1981), for the prop- osition that a probation revocation is remanded when the “primary” basis of the revocation was a vacated conviction.

2021Id. at 421-22 .

2020Given our disposition we do not reach that issue. 22 Kelley v. Washington County in the exceptional case,” where “reasonable persons could draw one inference and that inference being that defendant was not [liable].” Hall v. State, 43 Or App 325, 328 , 602 P2d 1104 (1979), aff’d, 290 Or 19 , 619 P2d 256 (1980) (brackets omitted). “[I]f more than one conclusion can be drawn from the facts, the case is for the jury.” Crawford, 121 Or at 643 .

2020Given our disposition we do not reach that issue. 22 Kelley v. Washington County in the exceptional case,” where “reasonable persons could draw one inference and that inference being that defendant was not [liable].” Hall v. State, 43 Or App 325, 328 , 602 P2d 1104 (1979), aff’d, 290 Or 19 , 619 P2d 256 (1980) (brackets omitted). “[I]f more than one conclusion can be drawn from the facts, the case is for the jury.” Crawford, 121 Or at 643 .

2020A. Facial Challenge to ORS 222.127 A statute is facially unconstitutional if it “is inca- pable of constitutional application in any circumstance.” Jensen v. Whitlow, 334 Or 412, 421 , 51 P3d 599 (2002); see also State v. Christian, 354 Or 22, 40 , 307 P3d 429 (2013) (“Our analysis of defendant’s facial challenge is limited to whether the ordinance is capable of constitutional applica- tion in any circumstance.”); Northrup v. Hoyt, 31 Or 524, 529 , 49 P 754 (1897) (if a statute may constitutionally oper- ate upon certain persons or cases, it is not unconstitutional 6 As we intermittently remin

2020A. Facial Challenge to ORS 222.127 A statute is facially unconstitutional if it “is inca- pable of constitutional application in any circumstance.” Jensen v. Whitlow, 334 Or 412, 421 , 51 P3d 599 (2002); see also State v. Christian, 354 Or 22, 40 , 307 P3d 429 (2013) (“Our analysis of defendant’s facial challenge is limited to whether the ordinance is capable of constitutional applica- tion in any circumstance.”); Northrup v. Hoyt, 31 Or 524, 529 , 49 P 754 (1897) (if a statute may constitutionally oper- ate upon certain persons or cases, it is not unconstitutional 6 As we intermittently remin

2020A. Facial Challenge to ORS 222.127 A statute is facially unconstitutional if it “is inca- pable of constitutional application in any circumstance.” Jensen v. Whitlow, 334 Or 412, 421 , 51 P3d 599 (2002); see also State v. Christian, 354 Or 22, 40 , 307 P3d 429 (2013) (“Our analysis of defendant’s facial challenge is limited to whether the ordinance is capable of constitutional applica- tion in any circumstance.”); Northrup v. Hoyt, 31 Or 524, 529 , 49 P 754 (1897) (if a statute may constitutionally oper- ate upon certain persons or cases, it is not unconstitutional 6 As we intermittently remin

2020A. Facial Challenge to ORS 222.127 A statute is facially unconstitutional if it “is inca- pable of constitutional application in any circumstance.” Jensen v. Whitlow, 334 Or 412, 421 , 51 P3d 599 (2002); see also State v. Christian, 354 Or 22, 40 , 307 P3d 429 (2013) (“Our analysis of defendant’s facial challenge is limited to whether the ordinance is capable of constitutional applica- tion in any circumstance.”); Northrup v. Hoyt, 31 Or 524, 529 , 49 P 754 (1897) (if a statute may constitutionally oper- ate upon certain persons or cases, it is not unconstitutional 6 As we intermittently remin

2020We reasoned that each animal was a separate victim under our decision in State v. Hess, 273 Or App 26, 35 , 359 P3d 288 (2015), rev den, 358 Or 529 (2016).

2020Given our disposition we do not reach that issue. 22 Kelley v. Washington County in the exceptional case,” where “reasonable persons could draw one inference and that inference being that defendant was not [liable].” Hall v. State, 43 Or App 325, 328 , 602 P2d 1104 (1979), aff’d, 290 Or 19 , 619 P2d 256 (1980) (brackets omitted). “[I]f more than one conclusion can be drawn from the facts, the case is for the jury.” Crawford, 121 Or at 643 .

2020Given our disposition we do not reach that issue. 22 Kelley v. Washington County in the exceptional case,” where “reasonable persons could draw one inference and that inference being that defendant was not [liable].” Hall v. State, 43 Or App 325, 328 , 602 P2d 1104 (1979), aff’d, 290 Or 19 , 619 P2d 256 (1980) (brackets omitted). “[I]f more than one conclusion can be drawn from the facts, the case is for the jury.” Crawford, 121 Or at 643 .

2020Given our disposition we do not reach that issue. 22 Kelley v. Washington County in the exceptional case,” where “reasonable persons could draw one inference and that inference being that defendant was not [liable].” Hall v. State, 43 Or App 325, 328 , 602 P2d 1104 (1979), aff’d, 290 Or 19 , 619 P2d 256 (1980) (brackets omitted). “[I]f more than one conclusion can be drawn from the facts, the case is for the jury.” Crawford, 121 Or at 643 .