Argued and submitted July 29, 1988 Affirmed January 25, 1989 reconsideration denied April 28, petition for review allowed June 27, 1989 ( 308 Or. 158) See later issue Oregon Reports Appeal from the Circuit Court, Linn County, Wendell H. Tompkins, Judge.
Argued and submitted July 20, 1988Reversed and remanded March 22, 1989 reconsideration denied May 26, petition for review denied June 27, 1989 ( 308 Or. 158) Appeal from the Circuit Court, Umatilla County, J.F. Olsen, Judge.
Reversed and remanded for new trial. State v. Ainsworth, 95 Or. App. 240, 770 P.2d 58, rev allowed 308 Or. 158 (1989); State v. Gohring, 95 Or. App. 746, 770 P.2d 614 (1989). Edmonds, J., concurring.
Use of an enhancing mechanism does not itself make the activity a search, State v. Carter/Grant, 101 Or. App. 281, 790 P.2d 1152 (1990), although the device used in detecting evidence may be important in determining whether police conduct has interfered with defendant's interest in being free from governmental scrutiny. See State v. Campbell, supra; State v. Ainsworth, 95 Or. App. 240, 770 P.2d 58, rev allowed 308 Or. 158 (1989). Had the observation been made during the daytime, or in some other situation where reliance on the flashlight was unnecessary, there would be no question but that Churma's action would not have been a "search."
See, e.g. , id. at 435, 730 P.2d 1234 ("[T]he court is not bound by the conclusions of any psychotherapist but is required by statute to make his or her own findings on that issue."); State v. Trice , 146 Or.App. 15, 24, 933 P.2d 345, rev. den. , 325 Or. 280, 936 P.2d 987 (1997) (sufficient evidence supported the trial court's "severe personality disorder" finding even though the examining psychiatrists did not "officially" diagnose the defendant with such a disorder); State v. Pryor , 96 Or.App. 181, 184, 772 P.2d 431, rev. den. , 308 Or. 158, 776 P.2d 859 (1989) (dangerous-offender sentence was supported by sufficient evidence even though the psychiatric "report" simply stated that the "defendant was uncooperative and that a psychiatric analysis could not be made"); State v. Lovelace , 94 Or.App. 586, 588, 590, 767 P.2d 80, rev. den. , 307 Or. 571, 771 P.2d 1021 (1989) (dangerous-offender sentence was supported by sufficient evidence despite the fact that the defendant had refused to be examined and interviewed by the reporting psychiatrist).Thus, because the existence of a particular diagnosis by a medical professional was not a necessary predicate to the sentencing court's finding, it would be anomalous to conclude that the legislature intended to require the parole board to evaluate the persistence of a diagnosis (or the traits observed by a psychologist or psychiatrist) that may or may not have been the dispositive consideration of the sentencing court. See Landis v. Limbaugh , 282 Or.App. 284, 295, 385 P.3d 1139 (2016) ("We assume that t
In the criminal context, we have observed that finding a defendant guilty of criminally negligent homicide requires evidence that the defendant should have been aware of a problem with the defendant's driving, such as swerving, inattention, or near collisions, before the ultimate accident giving rise to the charges. State v. Brinager, 96 Or.App. 160, 162–63, 771 P.2d 658,rev. den.,308 Or. 158, 776 P.2d 859 (1989). Therefore, we conclude, in accordance with Smith v. Williams and our prior cases, that to find a defendant guilty of criminally negligent homicide (or other crime) based upon falling asleep while driving requires some evidence that the defendant had, or should have been aware of, a sufficient prior warning of the likelihood of sleep so that the defendant had the opportunity to reduce the substantial risk of injury.
to be jurisdictional; failure to join an interested party renders any judgment void. Stanley, Adm. v.Mueller, 211 Or 198, 210, 315 P2d 125 (1957) (failure to join will beneficiaries in declaratory judgment action brought by administratrix of decedent's estate against decedent's spouse presented no justiciable controversy); see also Wright v. Hazen Investments, Inc., 293 Or 259, 264, 648 P2d 360 (1982) (assignee of leasehold contract was required to be joined under ORS 28.110); Farmers Ins. Co. v. Lotches, 276 Or 81, 85-86, 554 P2d 169 (1976) (in insurer's declaratory judgment action against claimants on an insurance policy, insured was required to be joined under ORS 28.110); Kaiser Foundation Health Plan v. Doe, 138 Or App 428, 433, 908 P2d 850, rev den, 324 Or 394 (1996) (in declaratory judgment action concerning enforceability of oral contract, all parties to the agreement were required to be made parties to the action); Futrell v. Wagner, 96 Or App 27, 32, 771 P2d 292, rev den 308 Or 158 (1989) (where it was apparent from the record that unjoined assignee of contract might claim an interest, failure to join him as necessary party was a jurisdictional defect). "[Plaintiffs] claim that he is the owner of $900,000 of the Trust's term insurance policy on Teddy Moore's life therefore is not justiciable, unless the Trust is made a party to this action.
By admitting that those six offenses occurred on different dates from the offense alleged in Count 9 — each more than 30 days apart from the date range alleged in Count 9 — defendant admitted sufficient facts to establish that those offenses involved separate criminal episodes from Count 9. See, e.g., State v. Koch, 169 Or App 223, 226, 7 P3d 769 (2000) (offenses occurring on different dates did not arise from the same criminal episode for purposes of imposing consecutive sentences); State v. Smith, 95 Or App 683, 687, 770 P2d 950, rev den., 308 Or 158 (1989) (offenses committed on different dates did not arise from the same criminal episode for purposes of double jeopardy protection). With respect to the seventh offense, Count 20, charging identity theft, the indictment alleged a date range — "on or between August 1, 2003, and February 24, 2004" — that overlapped the date range for Count 9.
ther the issuance of the written sentence violated the defendant's right to be present at sentencing.See State v. Jackson, 141 Or App at 126 (addressing whether a term of the defendant's probation was lawful, the court first determined that the terms of the written judgment controlled over oral statements made by the trial court); State v. Rood, 129 Or App 422, 425-26, 879 P2d 886 (1994) (concluding that term in written sentence extending the defendant's sentence to 18 months from the 60 days pronounced orally was a clerical error and therefore could be corrected by vacation of sentence and remand); State v. Morgan, 104 Or App 62, 64-65, 798 P2d 1113 (1990) (concluding that, although it appeared that the sentencing judge intended to place the defendant on probation, the written order made no mention of probation, and therefore the court's jurisdiction over the defendant had expired prior to the sentencing order being appealed); State v. Prior, 96 Or App 181, 184, 772 P2d 431, rev den, 308 Or 158 (1989) (addressing whether the defendant had been unlawfully sentenced as a dangerous offender, court first determined that written judgment imposing the challenged sentence controlled over oral statements of the trial court that the defendant was not being sentenced as a dangerous offender); State v. Wetzel, 94 Or App 426, 428, 765 P2d 835 (1988) (holding that terms of written judgment imposing sentence controlled over oral statements made by the sentencing court because it was clear that the court "misspoke"); State v. Mossman, 75 Or App 385, 389, 706 P2d 203 (1985) (holding that original written judgments imposing sentences were not ambiguous and therefore judgments purporting to modify them based on oral statements made before their entry were invalid). Thus, the rule derived from the cases that the state relies on does not resolve this case.
However, there is an exception to that general rule; a "court may, in its discretion, add interest to the share owed by a partner guilty of a fiduciary breach * * *." Id.; Deyoe v. Holloway, 96 Or. App. 105, 106, 771 P.2d 652, rev den, 308 Or. 158 (1989). Here, plaintiff pleaded and proved in his accounting claim that defendant breached fiduciary duties owed to plaintiff by excluding plaintiff from the business premises, appropriating the business property to defendant's own use, failing to produce on demand partnership books and records, and failing to formally account for the value of the business.