# Oregon Court of Appeals (2024)

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/court_rules%3Aor%3Aa8c5dc0ed3154870

## Record

- **Collection:** Court rules
- **Document type:** Court rule

## Text

Oregon Court of Appeals

STANDARDS OF REVIEW

LAST UPDATED: MAY 29, 2024
OREGON JUDICIAL DEPARTMENT

Summary Table of Contents
I. COMMON STANDARDS OF REVIEW FOR CIVIL AND CRIMINAL APPEALS 12
II. CIVIL – GENERAL
12
III. CIVIL – PROBATE (ORS chapters 111 to 123)
28
IV. CIVIL – INSURANCE (ORS chapters 731 to 755)
30
V. CIVIL – PROTECTIVE ORDERS (ORS chapters 107, 125)
31
VI. CIVIL – DOMESTIC RELATIONS (ORS chapters 106 to 110)
32
VII. JUVENILE – DEPENDENCY (ORS chapter 419B)
35
VIII. JUVENILE – DELINQUENCY (ORS chapter 419C)
38
IX. CRIMINAL – GENERAL
40
X. HABEAS CORPUS
68
XI. CIVIL COMMITMENT
69
XII. ADMINISTRATIVE
71
XIII. ARBITRATION
81

1

Detailed Table of Contents
INTRODUCTION
I. COMMON STANDARDS OF REVIEW FOR CIVIL AND CRIMINAL APPEALS 12
A. "Any Evidence":

12

B. "Legal Error":

12

C. "Abuse of Discretion":

12

D. "De Novo":

12

II. CIVIL – GENERAL ..................................................................................................... 12
A. In General

12

1. Jurisdiction............................................................................................................. 12
2. General standards of review .................................................................................. 13
3. Rules of construction ............................................................................................. 14
B. Pretrial Matters

15

1. Service of process .................................................................................................. 15
2. Amendment of pleadings ....................................................................................... 16
3. Discovery issues .................................................................................................... 16
4. Intervention of parties/interpleader ....................................................................... 17
5. Recusal and removal of judges .............................................................................. 17
6. Claim preclusion and issue preclusion .................................................................. 17
7. Motion for continuance ......................................................................................... 17
8. Temporary injunctions and restraining orders ....................................................... 17
9. Class certification .................................................................................................. 18
10. Governmental immunity ...................................................................................... 19
11. Recusal of jurors .................................................................................................. 19
C. Pretrial Judgments

20

1. Default judgment and motions to vacate ............................................................... 20
2. Dismissal of actions ............................................................................................... 20
3. Summary judgment................................................................................................ 21
D. Trial Matters

21

1. Evidentiary issues .................................................................................................. 21
2

2. Witnesses ............................................................................................................... 22
3. Directed verdict ..................................................................................................... 23
4. Jury instructions ..................................................................................................... 23
5. Jury findings .......................................................................................................... 24
6. Bifurcation ............................................................................................................. 24
7. Closing arguments ................................................................................................. 25
E. Remedies

25

1. Monetary remedies ................................................................................................ 25
2. Equitable remedies ................................................................................................ 26
3. Other remedies ....................................................................................................... 26
F. Posttrial Matters

27

1. Motion for new trial ............................................................................................... 27
2. Motion for judgment notwithstanding the verdict (JNOV) ................................... 27
3. Motion to amend .................................................................................................... 27
4. Motion to set aside judgement (ORCP 71 B) ........................................................ 28
G. Declaratory Judgment Actions

28

III. CIVIL – PROBATE (ORS chapters 111 to 123) ........................................................ 28
A. In General

28

B. Wills and Trusts

29

1. Statutory will formalities requirement................................................................... 29
2. Removal of personal representative ...................................................................... 29
3. Testamentary capacity ........................................................................................... 29
4. Undue influence ..................................................................................................... 29
5. Expenses and attorney fees .................................................................................... 30
6. Counterclaims ........................................................................................................ 30
7. Equitable trusts ...................................................................................................... 30
IV. CIVIL – INSURANCE (ORS chapters 731 to 755) ................................................... 30
A. Policy Interpretation

30

B. Statutory Interpretation

30

C. Summary Judgment

31

D. Legal Fees Incurred During Arbitration

31

V. CIVIL – PROTECTIVE ORDERS (ORS chapters 107, 125) ..................................... 31
3

A. General

31

B. Stalking Protective Order (SPO)

31

C. Elderly Persons and Persons with Disabilities Abuse Prevention Act (EPPDAPA) 32
D. Guardians (ORS 125.300 to 125.330)

32

E. Attorney fees

32

VI. CIVIL – DOMESTIC RELATIONS (ORS chapters 106 to 110)............................... 32
A. Jurisdiction and Venue

32

1. Jurisdiction............................................................................................................. 32
2. Venue ..................................................................................................................... 32
B. Property Division

33

1. In general ............................................................................................................... 33
2. Settlement agreements ........................................................................................... 33
C. Spousal Support

33

D. Adoption in Domestic Relations Proceedings

33

E. Custody in Domestic Relations Proceedings

34

1. In general ............................................................................................................... 34
2. Modification of custody......................................................................................... 34
F. Parenting Time

34

G. Child Support

35

1. In general ............................................................................................................... 35
2. Modification of child support ................................................................................ 35
H. Child's Name Change in Domestic Relations Proceedings

35

I. Attorney Fees

35

VII. JUVENILE – DEPENDENCY (ORS chapter 419B) ................................................ 35
A. Jurisdiction and Venue

35

1. Jurisdiction............................................................................................................. 35
2. Venue ..................................................................................................................... 36
B. Indian Child Welfare Act (ICWA) (ORS 419B.600 to 419B.665)

36

C. Termination of Parental Rights (ORS 419B.500 to ORS 419B.504)

37

D. Other Juvenile Dependency Proceedings

37

1. Protective custody (ORS 419B.150 to 419B.175)................................................. 37
2. Permanent guardianship (ORS 419B.365) ............................................................ 37
4

3. Change in Permanency Plan (ORS 419B.470 to 419B.476) ................................. 38
VIII. JUVENILE – DELINQUENCY (ORS chapter 419C) ............................................. 38
A. Delinquency Adjudications

39

B. Waiving Juvenile Offenders to Adult Court

40

C. Diversion

40

D. Dispositions and Requirement of Findings

40

IX. CRIMINAL – GENERAL........................................................................................... 40
A. General Standards of Review

40

1. Questions of law .................................................................................................... 40
2. Questions of fact .................................................................................................... 41
3. Mixed questions of law and fact ............................................................................ 41
4. Harmless error review ........................................................................................... 41
5. Structural error review ........................................................................................... 42
6. Plain error review .................................................................................................. 43
7. Abuse of discretion review .................................................................................... 44
B. Interpretation and Construction

44

1. Statutory construction ............................................................................................ 44
2. Agency interpretation of statutory terms ............................................................... 44
3. Interpretation of administrative rules .................................................................... 45
4. Other matters of interpretation and construction ................................................... 45
C. Pretrial Matters

45

1. State pretrial appeals .............................................................................................. 45
2. Suppressing evidence ............................................................................................ 45
3. Probable cause—criminal charges......................................................................... 48
4. Probable cause—search warrants .......................................................................... 48
5. Grand jury proceedings ......................................................................................... 50
6. Guilty pleas ............................................................................................................ 50
7. Competency of defendant ...................................................................................... 51
8. Double jeopardy .................................................................................................... 51
9. Continuances ......................................................................................................... 52
10. Issues concerning counsel ................................................................................... 52
11. Speedy trial .......................................................................................................... 52
5

12. Joinder and severance .......................................................................................... 53
13. Jurisdiction........................................................................................................... 53
14. Change of venue .................................................................................................. 53
D. Trial Matters

54

1. Jury selection ......................................................................................................... 54
2. Trial management .................................................................................................. 55
3. Evidentiary rulings ................................................................................................ 56
4. Jury instructions ..................................................................................................... 61
5. Prosecutorial misconduct ....................................................................................... 62
6. Juror misconduct.................................................................................................... 63
7. Ineffective assistance of counsel ........................................................................... 63
8. Sufficiency of the evidence ................................................................................... 63
9. Nonunanimous jury verdict ................................................................................... 64
E. Sentencing

64

1. In general ............................................................................................................... 64
2. Multiple convictions .............................................................................................. 64
3. Interpretation of guidelines .................................................................................... 65
4. Calculation of sentence .......................................................................................... 65
5. Imposition of presumptive sentence ...................................................................... 66
6. Departures from the sentencing guidelines ........................................................... 66
7. Restitution .............................................................................................................. 67
8. Compensatory fines ............................................................................................... 67
9. Probation revocation .............................................................................................. 67
F. Postconviction

67

1. In general ............................................................................................................... 67
2. Inadequate / ineffective assistance of counsel ....................................................... 67
3. Summary denial of postconviction relief .............................................................. 68
4. Court reduction of sentence ................................................................................... 68
G. Expungement

68

X. HABEAS CORPUS ...................................................................................................... 68
A. Review of Circuit Court's Decision

68

B. Extradition

69
6

XI. CIVIL COMMITMENT.............................................................................................. 69
A. Review of Circuit Court’s Findings of Fact

69

1. Generally................................................................................................................ 69
2. Particular findings: Mental illness (ORS 426.130) .............................................. 69
3. Particular findings: Intellectual disability (ORS 427.290) ................................... 70
XII. ADMINISTRATIVE ................................................................................................. 71
A. Orders in Contested Cases

71

1. Defined .................................................................................................................. 71
2. Standard of review ................................................................................................. 72
B. Orders in Other Than Contested Cases

74

1. Defined .................................................................................................................. 74
2. Procedure ............................................................................................................... 75
3. Standard of review ................................................................................................. 75
4. Standing ................................................................................................................. 75
C. Rulemaking

75

1. Defined .................................................................................................................. 75
2. Standing ................................................................................................................. 76
3. Standard of review ................................................................................................. 76
4. Scope of judicial review ........................................................................................ 77
5. Interpretation of agency rules and statutes ............................................................ 77
D. Declaratory Rulings

78

E. Specific Agencies

78

1. Board of Parole and Post-Prison Supervision (BoPPS) ........................................ 78
2. Employment Relations Board (ERB) .................................................................... 79
3. Workers' Compensation Board (WCB) ................................................................. 79
4. Oregon Land Use Board of Appeals (LUBA) ....................................................... 80
XIII. ARBITRATION ....................................................................................................... 81
A. Determination of Arbitrability

81

B. General Standards of Review

82

C. Standards for Particular Issues

82

1. Evident partiality or misconduct prejudicing the rights of a party ........................ 82
2. Exceeding powers .................................................................................................. 82
7

3. Public policy .......................................................................................................... 83
D. Collective Bargaining Agreements

83

8

INTRODUCTION
An appellate court is "a court of review, not of first view." Cutter v.
Wilkinson, 544 US 709, 718 n 7, 125 S Ct 2113, 161 L Ed 2d 1020 (2005). For a court of
review, the standard of review defines the court's role: how the court must treat the facts
when they are disputed and what level of deference it must give a prior court's or
agency's decision. It is the lens through which an appellate court must view any case that
comes before it, sometimes requiring the court to view a particular question with "fresh
eyes," Dept. of Human Services v. T. L. M. H., 294 Or App 150, 153, 473 P3d 1152
(2020), sometimes requiring the court to credit a prior court's (or agency's) answer to a
particular question if that answer is a reasonable one, even if not every decisionmaker
would reach the same answer. See, e.g., Anderson v. Sullivan, 311 Or App 406, 411, 492
P3d 118, rev den, 368 Or 702 (2021) (explaining the "abuse of discretion" standard of
review).
Understanding how the standard of review applies to a particular question
is critical both for litigants bringing a case to a court of review, and for judges serving on
one. Judge Walter Edmonds, who served in position two of the Court of Appeals from
1989 through 2009, recognized this and, during his twenty years on the court and
subsequent service as a senior judge, Judge Edmonds became one of the court's foremost
educators on the standard of review.
At oral arguments, Judge Edmonds educated the bar about the core function
played by the standard of review for an appellate court. As a lawyer appearing before a
panel on which Judge Edmonds was sitting, I knew that the first few minutes of my
argument--and sometimes all of it--would need to address the standard of review and
explain why, under the applicable standard of review, the court had the authority to do
what I was asking it to do. Within the court, Judge Edmonds likewise instructed on the
standard of review, both through CLE programs for law clerks and staff and through
engagement with his colleagues about the standard of review.
The Oregon Court of Appeals offers this guide to the standard of review in
the spirit of, and in honor of, Judge Edmonds' steadfast commitment to educating the
bench and bar about the role of the standard of review in an appellate court. After Judge
Edmonds' service as a senior judge ended, I inherited the responsibility of teaching the
court's standards-of-review CLE. In that CLE, I shared with the court's law clerks an
aspiration: that I hoped that our court could one day offer a guide to the standard of
review like the one prepared by the Office of the Staff Attorneys at the United States
Court of Appeals for the Ninth Circuit, Standards of Review (uscourts.gov), a tool I'd
found valuable in practice. A dedicated and energetic team of law clerks responded by
organizing this project, which they modeled on the Ninth Circuit's guide and a similar
guide prepared by the law clerks and staff attorneys of the Minnesota Court of Appeals,
THE MINNESOTA (mncourts.gov).
9

As with those guides, this guide is intended as a starting point for research;
it is an outline of what the court's cases have said about the standard of review. Litigants
must make their own assessments of the standard of review based on their own research.
The guide is not intended to express the views of the court and may not be cited as
authority to any court. It is intended simply as a potentially helpful tool. As time and
resources allow, the court will update the guide periodically.
Erin C. Lagesen
Chief Judge
Oregon Court of Appeals
March 20, 2024

10

Project Managers:
Nicci Arete, J.D., LL.M.
Clerk for Chief Judge Erin Lagesen (2021-2023), Project Clerk (2023)
Norjmoo Battulga, J.D.
Clerk for Judges Roger DeHoog (2021) and James Egan (2022-2024)
Xiaoyi (Kelly) Fan, J.D.
Clerk for Judges Bronson James (2021-2022) and Anna Joyce (2022-2023)
Contributors:
Ariandne A. Alves, J.D.
Clerk for Judge Darleen Ortega (2022-2024)
Geoffrey P. Briggs, J.D.
Clerk for Judge Douglas Tookey (2020-2023)
Jeremiah J. Burke, J.D., Ph.D.
Clerk for Judge Ramón Pagán (2022-2024)
Sara Del Rubin, J.D.
Clerk for Jacqueline Kamins (2021-2023)
Rosalie Fatta, J.D.
Clerk for Judge Robyn Aoyagi (2021-2023)
Lauren Grace, J.D.
Clerk for Jacqueline Kamins (2021-2023)
Margaret Hannon, J.D.
Clerk for Judge James Egan (2022-2024)
Katherine Sands, J.D.
Project Clerk (2023) and Clerk for Judges Megan Jacquot (2023) and
Kristina Hellman (2023-2025)

11

I. COMMON STANDARDS OF REVIEW FOR CIVIL AND CRIMINAL APPEALS
A. "Any Evidence": This standard applies to questions of fact. Appellate courts consider
whether there is any evidence in the record that would permit a reasonable factfinder to
make the factual finding. Under this extremely deferential standard, the court will
reverse only if it can say that no reasonable factfinder could make the challenged finding.
B. "Legal Error": This standard applies to questions of law. Appellate courts analyze
the issue without any deference to the trial court's conclusion.
C. "Abuse of Discretion": This standard applies when the trial court has the discretion to
choose among legally permissible alternatives.
D. "De Novo": The Court of Appeals will try the case anew, making its own factual
findings and reaching its own conclusions of law based on those findings.
II. CIVIL – GENERAL
A. In General
1. Jurisdiction
a. Subject matter jurisdiction
"Whether a court has subject matter jurisdiction over a particular
proceeding is a question of law, which we review for legal error." Menten and
Deatherage, 302 Or App 425, 428, 461 P3d 1075 (2020).
b. Personal jurisdiction
We review a trial court's decision concerning whether the court lacks
personal jurisdiction as follows:
"Initially, the plaintiff has the burden of alleging and proving facts
sufficient to establish personal jurisdiction. In reviewing a trial court's
grant of a motion to dismiss for lack of personal jurisdiction, we assume the
truth of all well-pleaded allegations in the record and construe pleadings
and affidavits liberally to support jurisdiction. However, in determining
whether a defendant is subject to the jurisdiction of an Oregon court, courts
look to the pleadings and affidavits of both parties. We review the trial
court's factual findings to determine whether they are supported by any
competent evidence, and, where the trial court failed to make express
factual findings, we assume that the court found the relevant facts in a
manner consistent with its ultimate ruling. Once jurisdictional facts are
12

established, we review the determination of personal jurisdiction for legal
error."
Munson v. Valley Energy Investment Fund, 264 Or App 679, 700-01, 333 P3d 1102
(2014) (brackets, parentheses, internal citations, and internal quotation marks omitted).
c. Venue
We review a ruling granting or denying a change of venue for an abuse of
discretion. Praegitzer Industries v. Rollins Burdick Hunter, 129 Or App 628, 633, 880
P2d 479 (1994). But see Miller v. Pacific Trawlers, Inc., 204 Or App 585, 591, 131 P3d
821 (2006) ("a petition for a writ of mandamus is the only way in which a party may
challenge a trial court's action" regarding some types of rulings, including a trial court's
decision regarding venue that is "based on legal, rather than discretionary,
determinations"); see also Mack Trucks, Inc. v. Taylor, 227 Or 376, 382, 362 P.2d 364
(1961) (explaining "the procedure by which the issue of improper venue may be raised").
2. General standards of review
a. Mixed questions of law and fact
"We review the trial court's findings of fact for any evidence to support
them, * * * and its legal conclusions for errors of law." Allco Enterprises v. Goldstein
Family Living Trust, 183 Or App 328, 330, 51 P3d 1275 (2002).
b. Equitable proceedings
"De novo review is mandatory in an appeal from a judgment in a
proceeding for the termination of parental rights" and "is otherwise discretionary in
appeals from judgments in equitable proceedings." J. W. V. v. J. L. W., 324 Or App 393,
395, 525 P3d 1237 (2023); ORS 19.415(3).
c. Preemption
Whether federal law preempts an Oregon statute is a question of law that
we review for legal error. Herinckx v. Sanelle, 281 Or App 869, 873, 385 P3d 1190
(2016).
d. Writ of review
"In an appeal from a writ of review where the parties' arguments raise only
questions of law, * * * we review for errors of law." Oregon Shores v. Board of County
Commissioners, 297 Or App 269, 274, 441 P3d 647 (2019).
13

3. Rules of construction
a. Constitution
We review a court's interpretation of a constitutional provision for legal
error. State v. J. S. W., 295 Or App 420, 423, 434 P3d 481 (2018), rev den, 364 Or 849
(2019).
b. Statutes
Questions of statutory construction are "questions of law that we review for
legal error." State ex rel Rosenblum v. Living Essentials, LLC, 371 Or 23, 33, 529 P3d
939 (2023). "We resolve those questions by seeking to give effect to the intent of the
legislature as demonstrated by the text, context, and any helpful legislative history." Id.
c. Rules of Procedure
"We interpret Oregon's Rules of Civil Procedure in the same manner in
which we interpret Oregon's statutes." Waddill v. Anchor Hocking, Inc., 330 Or 376, 381,
8 P3d 200 (2000), adh'd to on recons, 331 Or 595, 18 P3d 1096 (2001). Where a rule of
civil procedure has been amended or adopted by the legislature, the court's objective is to
ascertain the intent of the legislature in adopting or amending the rule. Lindell v.
Kalugin, 353 Or 338, 349 n 2, 297 P3d 1266 (2013). By contrast, where the rule at issue
was not adopted or amended by the legislature, our aim is to determine the intent of the
Council on Court Procedures. Id. at 382 n 2 (explaining that, "unless the legislature
amended the rule at issue in a particular case in a manner that affects the issues in that
case, the Council's intent governs the interpretation of the rule"). With that in mind,
when we interpret an Oregon Rule of Civil Procedure, we give primary weight to the text
and context of the rule because "there is no more persuasive evidence of intent of the
[Council or legislature] than the words by which the [Council or legislature] undertook to
give expression to its wishes." See State v. Gaines, 346 Or 160, 171, 206 P3d 1042
(2009) (internal quotation marks omitted). After examining the text and context, we
consider "pertinent [rulemaking or] legislative history that a party may proffer." Id. at
172. Finally, if the Council's intent remains unclear after examining the text, context, and
legislative history, only then will this court turn to general maxims of statutory
construction. Id.; see also State v. Ramoz, 367 Or 670, 683 n 4, 483 P3d 615 (2021)
(describing standard of review).
d. Municipal Ordinances
(1) Interpretation of municipal ordinances
"The proper construction of a municipal ordinance is a question of law,
14

which we resolve using the same rules of construction that we use to interpret statutes."
Waste Not of Yamhill County v. Yamhill County, 305 Or App 436, 457, 471 P3d 769
(2020) (internal quotation marks omitted).
(2) Preemption of ordinances
"Whether and the extent to which a state statute has preemptive effect is a
question of legislative intent. We ascertain the intentions of the legislature by examining
the text of the statute in its context, along with any relevant legislative history, and, if
necessary, relevant canons of statutory construction." Board of Cty. Comm. Of Columbia
City v. Rosenblum, 324 Or App 221, 239, 526 P3d 798 (2023) (internal quotation marks,
citation, and brackets omitted).
(3) Constitutionality of ordinances
We review for legal error a circuit court's ruling on the constitutionality of
an ordinance. State ex rel Smith v. Hitt, 291 Or App 750, 754, 424 P3d 749 (2018).
e. Contracts
(1) In general
"Contract interpretation presents a question of law that we review for legal
error." Santoro v. Eagle Crest Estate Homesite Owners Assn., 319 Or App 793, 798, 512
P3d 828 (2022).
(2) Ambiguity determination
We review for legal error a ruling that contract language is unambiguous.
Milne v. Milne Construction Co., 207 Or App 382, 388, 142 P3d 475, rev den, 342 Or
253 (2006).
(3) Resolution of ambiguity
The meaning of an ambiguous contractual provision is a question of fact for
the factfinder. Yogman v. Parrott, 325 Or 358, 363-64, 937 P2d 1019 (1997). The
appellate courts review for any evidence: "The interpretation of the factfinder is binding
on appeal if there is any evidence in the record to support it." Dept. of Education v.
Vantage, 243 Or App 557, 566, 261 P3d 17 (2011).
B. Pretrial Matters
1. Service of process
15

"Whether service was sufficient presents a question of law." Option One
Mortgage Corp. v. Wall, 159 Or App 354, 358, 977 P2d 408 (1999) (quoting Hoeck v.
Schwabe, Williamson & Wyatt, 149 Or App 607, 615, 945 P2d 534 (1997)). "We accept
the trial court's findings of fact if they are supported by evidence in the record." Id.
(internal quotation marks omitted).
2. Amendment of pleadings
Under ORCP 23 A, trial courts have discretion to grant or deny a motion to
amend the pleading "when justice so requires." We review a court's denial of leave to
amend for an abuse of discretion and will "uphold a trial court's ruling denying leave
unless the court has exercised its discretion in a manner that is unjustified by, and clearly
against, evidence and reason." Dreyer v. Portland General Electric Co., 300 Or App
414, 421, 453 P3d 580 (2019), rev den, 366 Or 731 (2020).
"Although we generally review a court's denial of a motion to amend only
for abuse of discretion, when the denial results from a substantive legal conclusion, we
review the correctness of that conclusion for errors of law." Cowan v. Nordyke, 232 Or
App 384, 386, 222 P3d 1093 (2009), rev den, 348 Or 114 (2010) (internal quotation
marks omitted).
3. Discovery issues
a. Motion to compel production
"We review a trial court's decision regarding whether a party may obtain
documents created in anticipation of litigation for abuse of discretion." Meyer v. Oregon
Lottery, 292 Or App 647, 669, 426 P3d 89 (2018).
b. Discovery sanctions under ORCP 46
"We review a decision to sanction a party under ORCP 46 A for abuse of
discretion." Certain Underwriters v. TNA NA Manufacturing, 323 Or App 447, 456, 523
P3d 690 (2022), rev allowed, 371 Or 127 (2023).
"We review for abuse of discretion a trial court's decision to strike a claim
under ORCP 46 B." Chang v. Chun, 305 Or App 144, 147, 470 P3d 410 (2020).
"We review the trial court's decision to award fees under ORCP 46 C for
errors of law and abuse of discretion." Adams v. Hunter Engineering Co., 126 Or App
392, 396, 868 P2d 788 (1994).
We review the trial court's decision to impose sanctions under ORCP 46 D
16

for abuse of discretion. Burdette v. Miller, 243 Or App 423, 430, 259 P3d 976 (2011).
4. Intervention of parties/interpleader
"[B]ecause ORCP 31 A and B are couched in permissive terms ('[p]ersons
having claims * * * may be joined'; '[a]ny property * * * may, upon order of the court, be
deposited with the court'; '[u]pon hearing, the court may order the plaintiff discharged'
(emphasis added)), we review application of those provisions for abuse of discretion."
Country Casualty Ins. Co. v. Villa-Chavez, 228 Or App 677, 682, 208 P3d 1036 (2009)
(citations omitted).
"We review trial court rulings on motions for permissive intervention for
abuse of discretion." Gilbert Pacific Corp. v. Dept. of Transportation, 110 Or App 171,
175, 822 P2d 729 (1991), rev den, 313 Or 210 (1992) (citation omitted).
Intervention as of right is available only "when a statute of this state, [the
ORCP], or the common law, confers an unconditional right to intervene." ORCP 33 B.
"We review decisions on motions based on those circumstances as matters of law."
Samuels v. Hubbard, 71 Or App 481, 486, 692 P2d 700 (1984), rev den, 299 Or 118
(1985).
5. Recusal and removal of judges
"We review the trial court's denial of a motion to recuse for an abuse of
discretion." Pinnell v. Palmateer, 200 Or App 303, 310, 114 P3d 515 (2005), rev den,
340 Or 483 (2006) (citation omitted).
6. Claim preclusion and issue preclusion
We review the trial court's conclusions with respect to issue preclusion and
claim preclusion for errors of law. OEA v. Oregon Taxpayers United, 253 Or App 288,
299, 291 P3d 202 (2012) (citing Reid v. Johnson, 161 Or App 92, 94, 983 P2d 1061, rev
den, 329 Or 527 (1999)).
7. Motion for continuance
We review trial court rulings on motions for continuance for abuse of
discretion. Dickson and Dickson, 262 Or App 451, 453, 325 P3d 760 (2014).
8. Temporary injunctions and restraining orders
We "may order a circuit court to vacate a preliminary injunction if the
17

injunction was based on a 'fundamental legal error' or if the circuit court acted 'outside the
permissible range' of its discretion." Elkhorn Baptist Church v. Brown, 366 Or 506, 522,
466 P3d 30 (2020) (quoting State ex rel Keisling v. Norblad, 317 Or 615, 623, 860 P2d
241 (1993)).
"The construction of a temporary restraining order is a matter of law for the
court." Walti v. Willamette Indus., Inc., 100 Or App 89, 93, 784 P2d 1118, rev den, 309
Or 522 (1990). When a respondent challenges a trial court order continuing a temporary
restraining order entered under the Family Abuse Prevention Act, ORS 107.700 to
107.735, "[w]e review for legal error and defer to the trial court's findings if there is
evidence to support them, unless we exercise our discretion under ORS 19.415(3)(b) to
review the case de novo." Sacomano v. Burns, 245 Or App 35, 36, 261 P3d 54 (2011)
(citation omitted).
9. Class certification
a. ORCP 32 A
For purposes of class certification, all five initial requirements--numerosity,
commonality, typicality, adequacy, and notice--must be satisfied. ORCP 32 A; see also
ORCP 32 B ("An action may be maintained as a class action if the prerequisites of
section A of this rule are satisfied[.]").
We review a trial court's commonality determination for legal error "based
on the record before the trial court and the trial court's findings, if any." Delgado v. Del
Monte Fresh Produce, N. A., Inc., 260 Or App 480, 489, 417 P3d 419, rev den, 328 P3d
696 (2014) (citation and internal quotation marks omitted).
b. ORCP 32 B
In addition to satisfying the initial requirements of ORCP 32 A, the court
must also find that a "class action is superior to other available methods for the fair and
efficient adjudication of the controversy." ORCP 32 B.
"Predominance is one of eight factors for determining superiority under
ORCP 32 B for which it must be determined to what extent 'questions of law or fact
common to the members of the class predominate over any questions affecting only
individual members.'" Migis v. Autozone, Inc., 282 Or App 774, 782, 387 P3d 381
(2016), adh'd to on recons, 286 Or App 357, 396 P3d 309, rev den, 362 Or 300 (2017)
(quoting ORCP 32 B(3)). "The single predominance factor is reviewed for legal error,
but superiority, which involves all the factors listed under ORCP 32 B, is reviewed for
abuse of discretion." Migis, 282 Or App at 782 (internal citations omitted).
18

The "trial court has considerable discretion in weighing all of the factors
that apply in a given case and determining if a class action will be a superior means of
litigating the class claims." Pearson v. Philip Morris, Inc., 358 Or 88, 106-07, 361 P3d 3
(2015) (citation omitted). Moreover, a "trial court's determination that [an] action may
proceed as a class action 'is largely a decision of judicial administration * * * [and, in]
making such decisions the trial court is customarily granted wide latitude.'" Id. at 107
(quoting Newman v. Tualatin Development Co., Inc., 287 Or 47, 51, 597 P2d 800
(1979)).
c. ORCP 32 I
"We review the trial court's construction of ORCP 32 I for errors of law,
looking to the text and context of the rule and evidence of the intent of the Council on
Court Procedures that promulgated it in 1978." Stewart v. Albertson's, Inc., 308 Or App
464, 472, 481 P3d 978, rev den, 368 Or 138 (2021).
10. Governmental immunity
a. Qualified immunity
"The qualified immunity defense is a matter of law to be decided by the
court. If, however, the availability of the defense depends on facts that are in dispute, the
jury must determine the facts." DeNucci v. Henningsen, 248 Or App 59, 71, 273 P3d 148
(2012).
b. Discretionary immunity
Where the facts are undisputed, whether discretionary immunity bars a
plaintiff's recovery is a question of law. Stevenson v. State or Oregon, 290 Or 3, 17 n 1,
619 P2d 247 (1980) (Tanzer, J., concurring) (discussing respective roles of judges and
juries in assessing discretionary immunity).
c. Absolute immunity
Where the facts are undisputed, whether the absolute immunity bars
recovery is a question of law and appellate court reviews to determine whether defendant
is entitled to judgment as a matter of law on immunity grounds. Harmon v. State of
Oregon, 320 Or App 406, 409-10, 514 P3d 1131 (2022).
11. Recusal of jurors
"We review the trial court's denial of a motion to excuse a juror for cause for an
abuse of discretion." Village at North Pointe Condo. Assn. v. Bloedel Constr., 278 Or
19

App 354, 362, 374 P.3d 978, adh'd to as modified on recons, 281 Or App 322, 383 P3d
409 (2016). "The trial court's judgment as to a prospective juror's ultimate qualifications
is entitled to great weight." Id. (internal quotation marks omitted).
C. Pretrial Judgments
1. Default judgment and motions to vacate
"Although the trial court's ultimate determination granting relief from a
default judgment under ORCP 71 B is reviewed for an abuse of discretion, whether
defendants offered a reasonable explanation for their failure to take any action is a
question of law that we review for legal error." Saldivar v. Roberts, 240 Or App 371,
376, 246 P3d 91 (2011).
We review the court's decision to set aside a default judgment for abuse of
discretion. Gilbert v. Stancorp Financial Group Inc., 233 Or App 57, 61-62, 225 P3d 71
(2009), rev den, 348 Or 218 (2010). "Under that standard, we will affirm the court unless
its decision is not within the range of lawful alternatives. When the court's decision rests
on factfinding, we are bound by the court's findings if they are supported by any
evidence. Recognizing that a default judgment deprives a party of its 'day in court,' we
liberally construe ORCP 71 B so as to avoid that result 'when it can be done without
doing violence to the regular disposition of litigation.' One aspect of such liberal
construction is that we view the facts in the light most favorable to the party seeking
relief from default." Id. (citations omitted).
2. Dismissal of actions
a. Failure to state a claim (ORCP 21A)
A motion to dismiss under ORCP 21 is reviewed for failure to state a claim
as a matter of law. Strizver v. Wilsey, 210 Or App 33, 35, 150 P3d 10 (2006), rev den,
342 Or 474 (2007) (citing Granewich v. Harding, 329 Or 47, 51, 985 P2d 788 (1999)).
"We assume the truth of all allegations in the pleading and view the allegations, as well
as all reasonable inferences, in the light most favorable to the nonmoving party." Id.
b. Judgment on the pleadings (ORCP 21B)
"[T]o prevail on a motion for judgment on the pleadings, a party must show
that the nonmoving party cannot prevail as a matter of law. On review of
a judgment on the pleadings, the appellate court accepts as true all well-pleaded
allegations in the complaint. Judgment on the pleadings may be granted only when the
pleadings, taken together, affirmatively show that the plaintiff has no claim against the
defendant." Rowlett v. Fagan, 358 Or 639, 649, 369 P3d 1132 (2016) (citation omitted).
20

c. Voluntary dismissal (ORCP 54)
We review the trial court's ruling on ORCP 54 for "legal error." Ramirez v.
Northwest Renal Clinic, 262 Or App 317, 319, 324 P3d 581 (2014) (citing Guerin v.
Beamer, 163 Or App 172, 174, 986 P2d 1241 (1999)).
3. Summary judgment
a. Standard of review
"We review a trial court's grant of summary judgment for errors of law and
will affirm if there are no genuine disputes about any material fact and the moving party
is entitled to judgment as a matter of law." Beneficial Oregon, Inc. v. Bivins, 313 Or App
275, 277, 496 P3d 1104 (2021) (internal quotation marks omitted). In so doing, "we view
the facts in the light most favorable to the nonmoving parties," and we "examine whether
no objectively reasonable juror could find in their favor on the question at issue." Id. In
making that determination, "we examine 'the pleadings, depositions, affidavits,
declarations, and admissions on file.'" Id. (quoting ORCP 47 C).
b. Cross-motions for summary judgment
"On review of cross-motions for summary judgment, we view the record for each
motion in the light most favorable to the party opposing it to determine whether there is a
genuine issue of material fact and, if not, whether either party is entitled to judgment as a
matter of law." O'Kain v. Landress, 299 Or App 417, 419, 450 P3d 508 (2019). "A
material fact is one that, under applicable law, might affect the outcome of a case."
Zygar v. Johnson, 169 Or App 638, 646, 10 P3d 326 (2000), rev den, 331 Or 584 (2001)
(citation omitted).
D. Trial Matters
1. Evidentiary issues
a. Admission and exclusion of evidence
(1) Relevance
We review evidentiary rulings on relevance for errors of law. ODOT v.
Alderwoods (Oregon), Inc., 358 Or 501, 517-18, 366 P3d 316 (2015); Rugemer v. Rhea,
153 Or App 400, 404, 957 P2d 184 (1998) (citations omitted).
(2) Hearsay
Whether evidence contains inadmissible hearsay presents a question of law
that we review for legal error. U.S. Bank National Assn. v. McCoy, 290 Or App 525, 532,
21

415 P3d 1116 (2018).
b. Foundation for evidence
We review "whether there was sufficient evidence for the trial court to have
submitted the issue to the jury; that is, whether the foundation evidence was sufficient for
the jury reasonably to have found that the condition on which relevance depended was
fulfilled. We view the record as consistent with the trial court's ruling, accepting
reasonable inferences and reasonable credibility choices that the trial judge could have
made." Benjamin v. Wal-Mart Stores, Inc., 185 Or App 444, 467-68, 61 P3d 257 (2002),
rev den, 335 Or 479 (2003).
c. Scientific evidence
We review the trial court's ruling on the admissibility of scientific evidence
for errors of law. Jennings v. Baxter Healthcare Corp., 331 Or 285, 301, 14 P3d 596
(2000). It is the role of appellate courts to set legal limits that govern the exercise of trial
court discretionary authority to balance the probative value of scientific evidence against
its unfairly prejudicial effect under OEC 403. State v. Beauvais, 357 Or 524, 536, 354
P3d 680 (2015).
2. Witnesses
a. Examination of witnesses
"[W]e review the court's exercise of control over the presentation of
evidence and the examination of witnesses for abuse of discretion." Daves v. Kohan, 282
Or App 243, 244, 385 P3d 1161 (2016), rev den, 361 Or 439 (2017) (citing HowellHooyman and Hooyman, 113 Or App 548, 550, 833 P2d 328 (1992)).
b. Lay witnesses
"[T]he Oregon Evidence Code 'adopts a liberal standard for the
admissibility of lay opinions' and lay witnesses may testify to their personal perceptions."
Kelley v. Washington Cnty., 303 Or App 20, 35 n 8, 463 P3d 36 (2020) (quoting State v.
Lerch, 296 Or 377, 383, 677 P2d 678 (1984) (discussing OEC 701). "The admission of
opinion evidence is within the discretion of the trial court and it will only be reversed for
an abuse of discretion." Lerch, 296 Or at 383 (citations omitted).
c. Expert-witness testimony
"We review for legal error whether a trial court properly applied OEC 702
22

in deciding whether an expert is qualified to testify." State v. Threlkeld, 314 Or App 433,
436, 496 P3d 1147 (2021); see also OEC 701-706.
Whether expert testimony is helpful to the factfinder is sometimes reviewed
for abuse of discretion and sometimes for errors of law. See State v. Jesse, 360 Or 584,
598-99, 385 P3d 1063 (2016); State v. Garlinghouse, 323 Or App 640, 654-55, 524 P3d
103 (2023).
3. Directed verdict
We review a decision to grant a motion for directed verdict for legal error,
and it is appropriate only when a defendant is entitled to judgment as a matter of law.
Miller v. Columbia County, 282 Or App 348, 349, 385 P3d 1214 (2016), rev den, 361 Or
238 (2017). We view the evidence in the light most favorable the nonmoving party,
affording the nonmoving party every reasonable inference that can be drawn from that
evidence. Wheeler v. LaViolette, 129 Or App 57, 60, 877 P2d 665 (1994) (citation
omitted); Kelley v. Washington County, 303 Or App 20, 21-22, 463 P3d 36 (2020)
(stating the standard).
4. Jury instructions
We review a trial court's failure to give a requested jury instruction for
errors of law. State v. Reyes-Camarena, 330 Or 431, 441, 7 P3d 522 (2000). In such
review, we evaluate the evidence in the light most favorable to the establishment of the
facts necessary to require the instruction. Carter v. Mote, 285 Or 275, 279, 590 P2d 1214
(1979); see also Ossanna v. Nike, Inc., 365 Or 196, 199, 445 P3d 281 (2019) (applying
the standard).
We review a trial court's decision to give a particular instruction primarily
to determine whether the instruction, when read together with the other instructions
given, completely and accurately stated the law applicable to the case and, if not, whether
any error in giving the instruction was prejudicial to the party opposing the instruction.
See, e.g., Wallach v. Allstate Ins. Co., 344 Or 314, 318-22, 180 P3d 19 (2008) (applying
that standard); see also State v. Woodman, 341 Or 105, 118, 138 P3d 1 (2006) ("In
determining whether it was error to give a particular instruction, we read the instructions
as a whole to determine whether they state the law accurately); Estate of Schwarz v.
Philip Morris Inc., 348 Or 442, 454, 235 P3d 668, adh'd to on recons, 349 Or 521 (2010)
("For appellate courts reviewing claims of instructional error, the touchstones are legal
accuracy and clarity[.]").
We review the trial court's decision to resubmit a verdict to the jury for

23

clarification for an abuse of discretion. Biegler v. Kirby, 281 Or 423, 429, 574 P2d 1127
(1978) (where jury in personal injury action initially returned verdict for plaintiff but
assessed no general and special damages, trial court did not abuse discretion in
resubmitting the case to the jury for further redeliberation); see also Building Structures,
Inc. v. Young, 328 Or 100, 106, 968 P2d 1287 (1998) (where the verdict was insufficient,
the party's remedy for that defect was to have the verdict "resubmitted to the jury with
appropriate instruction or otherwise disposed of in the discretion of the court" (citation
and internal quotation marks omitted)).
5. Jury findings
a. General verdicts
"[N]o fact tried by a jury shall be otherwise re-examined in any court of this
state, unless the court can affirmatively say there is no evidence to support the verdict."
Or Const, Art VII (Amended), § 3. "We review the record in the light most favorable to
* * * the jury verdict, drawing all reasonable inferences in * * * favor [of the verdict]."
Henderson v. Nielsen, 127 Or App 109, 111, 871 P2d 495, rev den, 319 Or 149 (1994)
(citing Brown v. J.C. Penney Co., 297 Or 695, 688 P2d 811 (1984)).
b. Special verdicts
We review a trial court's decision to give or refuse a special finding for
abuse of discretion. See Hammagren v. Wald Construction, Inc., 274 Or 267, 270, 545
P2d 859 (1976); see also Shepherd v. Hub Lumber Co., 273 Or 331, 347-48, 541 P2d 439
(1975) ("[T]he giving or refusal of [ ] a request for a special finding is a matter within the
discretion of the trial judge."); ORCP 61 B.
6. Bifurcation
The trial court has broad discretion regarding whether to bifurcate under
ORCP 53. See Bremner v. Charles, 312 Or 274, 279, 821 P2d 1080 (1991), modified on
recons, 313 Or 339, 832 P2d 454 (1992), adh'd to as modified on recons, 315 Or 291,
844 P2d 204 (1993) ("Because a trial court's ruling on a motion for bifurcation of issues
concerns 'the administration of the business of the trial court,' the trial judge is granted
broad discretion in making such rulings.").
A trial court's decision to bifurcate a trial is reviewed for an abuse of
discretion. Taylor v. Ramsay-Gerding Construction Co., 233 Or App 272, 292, 226 P3d
45, adh’d to as modified on recons, 235 Or App 524, 234 P3d 129 (2010); Vander Veer v.
Toyota Motor Distributors, 282 Or 135, 144, 577 P2d 1343 (1978) (applying the
standard).
24

7. Closing arguments
We review a trial court's ruling on one party's objections to the statements
made in the other party's closing argument for an abuse of discretion. Cler v. Providence
Health System-Oregon, 349 Or 481, 487-88, 245 P3d 642 (2010).
E. Remedies
1. Monetary remedies
a. Additur and remittitur
The trial court has discretion to reduce jury awards of punitive damages under
ORS 31.730(3). Groth v. Hyundai Precision and Ind. Co., 209 Or App 781, 796, 149
P3d 333 (2006). We therefore review a trial court's decision to grant or deny a remittitur
for an abuse of discretion. See Oliver v. Burlington Northern, 271 Or 214, 215-16, 531
P2d 272 (1975) ("The only issues are the proper criteria to be applied by a trial judge in
determining whether a remittitur should be granted, whether the trial judge applied these
criteria, and whether the trial judge abused his discretion."). "Under that standard of
review, the court's duty is not to redecide the historical facts as decided by the jury, but to
decide where * * * the conduct at issue falls on the scale of conduct that does or might
warrant imposition of punitive damages." Wieber v. FedEx Ground Package System,
Inc., 231 Or App 469, 488, 220 P3d 68 (2009), rev den, 349 Or 664 (2011) (internal
quotation marks omitted).
b. Special and punitive damages
"[W]hen reviewing a punitive damages award for excessiveness, the
reviewing court must view the facts in the light most favorable to the jury's verdict if
there is evidence in the record to support them. In other words, the reviewing court must
resolve all disputes regarding facts and factual inferences in favor of the jury's verdict and
then determine, on the facts as the jury was entitled to find them, whether the award
violates the legal standard of gross excessiveness." Parrott v. Carr Chevrolet, Inc., 331
Or 537, 556-57, 17 P3d 473 (2001) (citations omitted). "Whether the award of punitive
damages violates that standard is a question of law." Wieber v. FedEx Ground Package
System, Inc., 231 Or App 469, 486, 220 P3d 68 (2009).
"[W]e hold that the legal standard to apply to post-verdict judicial review of
a jury's award of punitive damages is as follows: Was the award of punitive damages
within the range that a rational juror would be entitled to award in the light of the record
as a whole? The range that a rational juror is entitled to award depends, in turn, on the
statutory and common law factors that the jury is instructed and permitted to consider
when awarding punitive damages for a given claim." Oberg v. Honda Motor Co., 320 Or
544, 551, 888 P2d 8 (1995), cert den, 517 US 1219 (1996).
25

2. Equitable remedies
We no longer review judgment in all equitable proceedings de novo; de
novo review is now discretionary in most equity cases, and we will exercise our
discretion to do so "only in exceptional cases." ORAP 5.40(8)(c); see Hammond v.
Hammond, 246 Or App 775, 777, 268 P3d 691 (2011).
In the absence of de novo review, we review the trial court's legal
conclusions for errors of law and are bound by its factual findings if there is any evidence
to support them. Neff v. Sandtrax, Inc., 243 Or App 485, 487, 259 P3d 985, rev den, 350
Or 716 (2011); see also Eagles Five, LLC v. Lawton, 250 Or App 413, 415 n 2, 280 P3d
1017 (2012) (explaining that the 2009 amendments to ORS 19.415, Or Laws 2009, ch
231, §§ 2, 3, make de novo review discretionary in equity cases).
3. Other remedies
a. Contempt of court
ORS 33.055(11) provides, "In any proceeding for imposition of a remedial
sanction other than confinement, proof of contempt shall be by clear and convincing
evidence." "On appeal, however, we do not reweigh the evidence to determine anew
whether there is clear and convincing evidence of contempt." Keller and Holdner, 232
Or App 341, 344, 222 P3d 1111 (2009). Rather, a contempt proceeding is legal in nature,
and we review "the trial court's findings under the same standard that applies to our
review of jury verdicts, which is a review for any evidence to support the findings." Id.;
see also State ex rel S. M. v. A. S., 223 Or App 421, 425, 196 P3d 26 (2008) ("We review
a judgment in a [contempt] proceeding for remedial sanctions in the same manner as a
judgment in an action at law, examining whether any evidence in the record supports the
trial court's factual findings.").
b. Costs and disbursements
We review the trial court's decision whether to award a prevailing party
costs and disbursements for abuse of discretion. ORCP 68 B; Sherwood Park Business
Center, LLC v. Taggart, 267 Or App 217, 238, 341 P3d 96 (2014).
c. Attorney fees
"Whether a party is entitled to attorney fees presents a question of law, but
whether fees are reasonable is a factual determination that we review for abuse of
discretion." Makarios-Oregon, LLC v. Ross Dress-for-Less, Inc., 293 Or App 732, 739,
430 P3d 142, adh'd to as modified on recons, 295 Or App 449, 430 P3d 1125 (2018); see
26

also ORS 20.075(3) ("In any appeal from the award or denial of an attorney fee subject to
this section, the court reviewing the award may not modify * * * the decision of the court
as to the amount of the award, except upon a finding of an abuse of discretion.");
Espinoza v. Evergreen Helicopters, Inc., 359 Or 63, 117, 376 P3d 960 (2016) (a trial
court may abuse its discretion if a decision is based on "predicate legal conclusions that
are erroneous or predicate factual determinations that lack sufficient evidentiary
support").
F. Posttrial Matters
1. Motion for new trial
"When the trial court's order of a new trial is based on an interpretation of
the law, we review that order for errors of law. If the trial court made no predicate legal
error, then we review its decision for an abuse of discretion." Golik v. CBS Corp., 306 Or
App 202, 213, 472 P3d 778 (2020) (internal quotation marks omitted). With regard to
whether the ground for a new trial involved conduct or evidence that materially affected
the moving party's substantial rights, we will usually defer to a trial court's
determinations of prejudicial effect, again reviewing for an abuse of discretion. Id.
Because the trial court is the finder of fact at a hearing on a motion for a new trial, "we
defer to the court's explicit and implicit findings of fact if they are supported by evidence
in the record." Id.
2. Motion for judgment notwithstanding the verdict (JNOV)
We review the denial of a JNOV motion under the same standard of review
that we apply when the court has granted a JNOV. Golik v. CBS Corp., 306 Or App 202,
225, 472 P3d 778 (2020). In both instances, "we review the evidence in the light most
favorable to the party who prevailed before the jury." Bennett v. Farmers Ins. Co., 332
Or 138, 142, 26 P3d 785 (2001); see also Jacobs v. Tidewater Barge Lines, 277 Or 809,
811, 562 P2d 545 (1977) (same). "[O]ur review of the record is circumscribed by the
case actually presented to the jury through pleadings, evidence, and jury instructions."
Northwest Natural Gas Co. v. Chase Gardens, Inc., 333 Or 304, 310, 39 P3d 846 (2002).
We "must reinstate the jury verdict unless we can say affirmatively that there was no
evidence to support it." Bennett, 332 Or at 147-48.
3. Motion to amend
"We review a trial court's denial of a motion to amend after an ORCP 21 A
dismissal for abuse of discretion." Caldeen Construction v. Kemp, 248 Or App 82, 86,
273 P3d 174 (2012) (internal quotation marks omitted). A trial court's discretion to grant
or deny motions to amend a complaint after a motion to dismiss is not limitless; it is
bounded by the requirement that motions to amend should be liberally granted if
27

amendment would preclude the entry of a judgment. Id. (citing ORCP 25).
4. Motion to set aside judgement (ORCP 71 B)
We review the trial court's ultimate decision under ORCP 71 B(1) for abuse
of discretion. Johnson v. Sunriver Resort Limited Partnership, 252 Or App 299, 306, 287
P3d 1153 (2012), rev den, 353 Or 280 (2013). We are "bound by the court's factual
findings if they are supported by any evidence in the record." Id. at 301. However,
"whether certain conduct or inaction constitutes excusable neglect is a question of law,
and we review the trial court's answer to that question for legal error." Id. (internal
quotation marks omitted); see also Union Lumber Co. v. Miller, 360 Or 767, 778, 388
P3d 327 (2017) ("Conclusions that a trial court reaches under ORCP 71 B as to whether a
moving party's neglect, inadvertence, surprise, or mistake constitute cognizable grounds
for relief, are legal rulings that an appellate court reviews for errors of law.").
G. Declaratory Judgment Actions
Our standard of review for a declaratory judgment proceeding depends on
the underlying nature of the claim and issues presented on appeal:
"Declaratory judgment proceedings seeking the construction of a
contract are legal in nature, and the factual determinations of the trier of
fact are binding on appeal if there is evidence to support them. We review
the construction of a contract, including whether it is ambiguous, as a
matter of law. Where the construction of a contract may depend on
extrinsic evidence, we review the court's explicit and implicit findings of
fact for any evidence in the record to support them, and the legal
consequences of those facts for legal error."
Harris v. Warren Family Properties, LLC, 207 Or App 732, 737, 143 P3d 548 (2006)
(internal citations and quotation marks omitted). We review the record in the light most
favorable to the party that prevailed at trial. Id.
III. CIVIL – PROBATE (ORS chapters 111 to 123)
A. In General
Under ORS 19.415(3), unless we exercise our discretion to review the
matter de novo, we are bound by the trial court's findings of historical fact that are
supported by any evidence in the record; we review the court's dispositional conclusions
for errors of law. Hammond v. Hammond, 246 Or App 775, 777, 268 P3d 691 (2011)
(("[W]e no longer review judgments in all equitable proceedings de novo. Rather, de
novo review is now discretionary in most equitable cases, like this one, in which the
28

notice of appeal was filed after June 4, 2009.").
Absent de novo review, ORS 19.415(3)(b), we review the probate court's
decisions on requested equitable relief for abuse of discretion, its legal conclusions for
errors of law, and its factual findings for any evidence. Lynch v. Romano, 285 Or App
243, 244, 396 P3d 267, rev den, 361 Or 800 (2017). That is true even when the question
before us concerns an equitable doctrine. See Cumming v. Nipping, 310 Or App 780,
781, 489 P3d 119, rev den, 368 Or 787 (2021) (explaining that we conduct de novo
review of a decision concerning alleged unjust enrichment, an equitable doctrine, only as
provided in ORS 19.415(3)(b)).
B. Wills and Trusts
1. Statutory will formalities requirement
In determining whether a probate court erred in its determination whether a
writing that does not satisfy statutory will formalities, ORS 112.238, may nevertheless be
probated, "we review for legal error and are bound by the probate court's factual findings
if there is evidence to support them." Culver v. Deaver, 297 Or App 21, 22, 441 P3d 633,
634 (2019) (citing ORS 111.105(2)).
2. Removal of personal representative
The decision to remove a personal representative is a matter of discretion
for the probate court, ORS 113.195(4) ("the court may remove the personal
representative"). Thus, we review for an abuse of discretion. Warkentin v. Shirey, 308
Or App 1, 9, 480 P3d 289 (2020), adh'd to as modified on recons, 309 Or App 314, 481
P3d 444 (2021).
3. Testamentary capacity
Absent de novo review, "we are bound by the trial court's findings of
historical fact that are supported by any evidence in the record; we review the court's
dispositional conclusions for errors of law." Williamson v. Zielinski, 326 Or App 648,
649, ___ P3d ___ (2013).
4. Undue influence
Absent de novo review, "we are bound by the trial court's findings of
historical fact that are supported by any evidence in the record; we review the court's
dispositional conclusions for errors of law." Williamson v. Zielinski, 326 Or App 648,
649, ___ P3d ___ (2013).
29

5. Expenses and attorney fees
We review for abuse of discretion a probate court's determination of
attorney fees to be allowed out of the funds of an estate. Tilton v. Lee, 255 Or App 244,
246, 298 P3d 559, rev den, 353 Or 868 (2013).
If a petitioner did not have an objectively reasonable basis for pursuing
trust claims, a fee award under ORS 20.105(1) is mandatory. Lewis v. Worley, 318 Or
App 127, 134, 507 P3d 814 (2022). A claim lacks an objectively reasonable basis if it is
entirely devoid of legal or factual support; we review the trial court's ruling on that
question for legal error. Id.
6. Counterclaims
We review for legal error a probate court's determination whether the
probate code authorizes a personal representative to assert a counterclaim in a proceeding
for summary determination under ORS chapter 115. Flaig v. Emert, 260 Or App 652,
657, 320 P3d 586 (2014)
7. Equitable trusts
When a trust is an equitable obligation, which a plaintiff must prove
through clear and convincing evidence of the circumstances at the time of the
conveyance, such as with resulting trusts, we review the probate court's factual findings
to determine whether there is evidence that it could have found clear and convincing that
a grantor intended for a grantee to hold the property in trust. Hamlin v. Hamlin, 271 Or
App 647, 653-54, 352 P3d 737 (2015). We will not reweigh the evidence in reviewing
the probate court's conclusion that there is clear and convincing evidence. Id. at 654.
IV. CIVIL – INSURANCE (ORS chapters 731 to 755)
A. Policy Interpretation
A trial court's interpretation of an insurance policy is reviewed as a question
of law. Phillips v. State Farm Fire and Casualty Co., 302 Or App 500, 504, 461 P3d
1008 (2020). In interpreting an insurance policy, "the goal is to determine the intentions
of the parties. The parties' intentions are determined from the terms of the policy. We
interpret those terms "according to what we perceive to be the understanding of the
ordinary purchaser of insurance." Id. at 505 (internal citations and quotation marks
omitted).
B. Statutory Interpretation
30

When a question of statutory interpretation arises in an insurance-related
dispute, "we resolve [it] by applying familiar rules requiring us to determine the meaning
of the words of the statute most likely intended by the legislature that enacted it, taking
into account its text in context and the relevant legislative history." Spearman v.
Progressive Classic Ins. Co., 361 Or 584, 590, 396 P3d 885 (2017) (citing State v.
Gaines, 346 Or 160, 171-73, 206 P3d 1042 (2009)).
C. Summary Judgment
We review a trial court's decision on a motion for summary judgment for
legal error. Farmers Ins. Co. v. American Fire & Casualty, 117 Or App 347, 349, 844
P2d 235 (1992), rev den, 315 Or 643 (1993); see also Waxman v. Waxman & Associates,
Inc., 224 Or App 499, 503, 198 P3d 445 (2008) ("We review a grant of summary
judgment to determine whether any genuine issue of material fact exists and whether
defendant is entitled to judgment as a matter of law." (Internal quotation marks
omitted.)).
D. Legal Fees Incurred During Arbitration
An appellate court reviews the question of whether an insurer is entitled to
the protection of ORS 742.061(3), which pertains to attorney fees in cases submitted to
binding arbitration, as a legal matter. Congdon v. Berg, 256 Or App 73, 86, 299 P3d 588
(2013).
V. CIVIL – PROTECTIVE ORDERS (ORS chapters 107, 125)
A. General
Our standard of review for a sexual abuse protective order is the same as it
is for a Family Abuse Prevention Act restraining order or a stalking order. E. H. v.
Byrne, 311 Or App 415, 416, 487 P3d 869 (2021). That is, we are bound by the trial
court's express and implied factual findings if they are supported by any evidence in the
record, and we review the trial court's legal conclusions for errors of law. See H. L. P. v.
Jones, 309 Or App 108, 109, 481 P3d 415 (2021) (standard of review for stalking
protective order); J. V.-B. v. Burns, 284 Or App 366, 367, 392 P3d 386 (2017) (standard
of review for FAPA restraining orders).
B. Stalking Protective Order (SPO)
Absent de novo review, "[w]e review the trial court's factual findings for
any supporting evidence and its legal conclusions for legal error." C. L. C. v. Cordell,
318 Or App 654, 655, 508 P3d 73 (2022). "[W]e view the evidence and all reasonable
inferences that may be drawn from it in the light most favorable to the trial court's
31

disposition and assess whether, when so viewed, the record is legally sufficient to permit
that outcome." Id.
C. Elderly Persons and Persons with Disabilities Abuse Prevention Act (EPPDAPA)
We review an order issued under the Elderly Persons and Persons with
Disabilities Abuse Prevention Act (EPPDAPA) "by accepting the trial court's findings of
fact if they are supported by any evidence in the record. In the absence of explicit factual
findings, we presume that the court found facts consistent with its judgment in
petitioner's favor. We review the trial court's legal conclusions for errors of law." A. K.
F. v. Burdette, 310 Or App 49, 51, 484 P3d 362 (2021) (internal citations omitted).
D. Guardians (ORS 125.300 to 125.330)
Where a factual dispute exists, we accept the trial court's factual findings
where there is evidence in the record to support them. State v. P. M. S., 264 Or App 769,
771, 333 P3d 1170 (2014).
E. Attorney fees
In an appeal from the award of or denial of a request for attorney fees under
ORS 125.095 and ORS 125.098, we may not modify the decision of the probate court in
making or denying an award, or the decision of that court as to the amount of the award,
except upon a finding of an abuse of discretion. ORS 125.098(5).
VI. CIVIL – DOMESTIC RELATIONS (ORS chapters 106 to 110)
A. Jurisdiction and Venue
1. Jurisdiction
"Whether a court has subject matter jurisdiction over a particular
proceeding is a question of law, which we review for legal error." Menten and
Deatherage, 302 Or App 425, 428, 461 P3d 1075 (2020).
In Oregon, personal jurisdiction in general is governed by ORCP 4, with
ORCP 4 K governing certain domestic-relations actions. See Henry and Henry, 81 Or
App 426, 428, 725 P2d 943 (1986). Personal jurisdiction is a question of law that we
review for legal error. Adams and Adams, 173 Or App 242, 245, 21 P3d 171 (2001).
2. Venue
Generally, we review a ruling granting or denying a change of venue for an
abuse of discretion. Praegitzer Industries v. Rollins Burdick Hunter, 129 Or App 628,
32

633, 880 P2d 479 (1994).
B. Property Division
1. In general
Although we have discretion to review the property division in a domestic
relations case de novo, "[w]e exercise that discretion sparingly and only in exceptional
cases." Morgan and Morgan, 269 Or App 156, 159, 344 P3d 81, rev den, 357 Or 595
(2015); see also ORS 19.415(3)(b); ORAP 5.40(8)(c).
Unless the case is an exceptional one, we "review the trial court's
determination of a just and proper property division for an abuse of discretion. In doing
so, we are bound by the trial court's express and implicit factual findings if they are
supported by any evidence in the record." Morgan, 269 Or App at 161 (internal
quotation marks omitted). We will not disturb a trial court's "just and proper"
determination unless we conclude that "the trial court misapplied the statutory and
equitable considerations that ORS 107.105(1)(f) requires." Kunze and Kunze, 337 Or
122, 136, 92 P3d 100 (2004).
2. Settlement agreements
Under ORS 107.104, the terms of a marital settlement agreement "are to be
construed in the same fashion as other contractual terms." Moon v. Moon, 140 Or App
402, 407, 914 P2d 1133 (1996); see Anderson v. Divito, 138 Or App 272, 277-78, 908
P2d 315 (1995) (summarizing pertinent principles of contractual construction).
C. Spousal Support
We review the court's ruling on spousal support for an abuse of discretion.
Morgan and Morgan, 269 Or App 156, 157, 344 P3d 81, rev den, 357 Or 595 (2015); see
also ORS 107.105(1)(d) (a court may provide awards of spousal support in "an amount of
money for a period of time as may be just and equitable"). In reviewing that
determination, we are bound by the trial court's findings of historical fact that are
supported by any evidence in the record, and we will disturb the trial court's
determination of what constitutes a "just and equitable" amount only if the court
"misapplied the statutory and equitable considerations required by ORS 107.105." Berg
and Berg, 250 Or App 1, 2, 279 P3d 286 (2012).
D. Adoption in Domestic Relations Proceedings
When an adoption proceeding necessarily considers the termination of a
parent's rights, even outside the dependency context, we are required to review the record
33

of an adoption proceeding de novo. See J. W. V. v. J. L. W., 324 Or App 393, 395, 525
P3d 1237 (2023). Although de novo review is otherwise discretionary in appeals from
judgments in equitable proceedings, in an adoption, if the "court is asked to terminate
every right and interest of the natural parent," then the "adoption proceeding is, at least in
part, a proceeding for the termination of parental rights." Id. (internal quotation marks
and citation omitted).
E. Custody in Domestic Relations Proceedings
1. In general
We have the discretion to review the court's award of custody de novo, but
we conduct de novo review only in exceptional cases. See ORS 19.415(3)(b); ORAP
5.40(8)(c); Nice v. Townley, 248 Or App 616, 618, 274 P3d 227 (2012) (citing Turner
and Muller, 237 Or App 192, 196, 238 P3d 1003 (2010), rev den, 350 Or 231 (2011).
"'[I]f an appellant seeks to have us exercise our discretion to review de novo, the
appellant must include a concise statement explaining the reasons why we should do so in
its statement of the case in the opening brief.'" Muller, 237 Or App at 196 (quoting DHS
v. Three Affiliated Tribes of Fort Berthold, 236 Or App 535, 540, 238 P3d 40 (2010)).
Absent de novo review, we review for legal error, "stat[ing] the facts
consistently with those found by the trial court to the extent that there is evidence to
support them." Nice, 248 Or App at 618.
2. Modification of custody
Unless we exercise our discretion to review de novo, which we will
exercise it "only in exceptional cases," ORAP 5.40(8)(c), we review a trial court's best
interest determination in a child custody modification proceeding for abuse of discretion.
Sjomeling v. Lasser, 251 Or App 172, 187, 285 P3d 1116, rev den, 353 Or 103 (2012).
Under that standard, we will uphold "the trial court's decision unless it exercises its
discretion in a manner that is unjustified by, and clearly against, reason and evidence."
Stancliff and Stancliff, 320 Or App 369, 371, 513 P3d 20 (2022) (internal quotation
marks omitted).
F. Parenting Time
"Absent de novo review, we review a trial court's decision relating to
parenting time first for legal error to determine whether the trial court applied the correct
legal standard in making the challenged best interests determination." Davison and
Schafer, 308 Or App 513, 518, 479 P3d 1108 (2021) (internal quotation marks omitted).
And "[w]e review the court's best-interests determination itself for an abuse of discretion,
and we will reverse only if the trial court's discretionary determination was not a legally
34

permissible one." Id. (internal quotation marks omitted); see ORS 107.102; ORS
107.174.
G. Child Support
1. In general
Absent de novo review, we review the court's determination of a parent's
child support obligation for "errors of law." Garcia-Ascencio v. Gonzalez, 321 Or App
751, 752, 517 P3d 332 (2022). "We 'state the facts consistently with those found by the
trial court to the extent that there is evidence to support them.'" Id.
2. Modification of child support
Unless we exercise de novo review, we are bound by the trial court's
findings of historical fact as long as they are supported by any evidence in the record, and
we review the trial court's legal conclusions for legal error. Bock and Bock, 249 Or App
241, 242, 275 P3d 1006 (2012). We review the trial court's interpretation of the child
support guidelines for legal error. Malpass and Malpass, 255 Or App 233, 234, 296 P3d
653 (2013); see id. 237 n 6 (explaining guidelines).
H. Child's Name Change in Domestic Relations Proceedings
The party requesting a name change for a child bears the burden of showing
that the change of name is in the child's best interest. Stoecklin v. A. L. C., 265 Or App
662, 665, 337 P3d 164 (2014). Unless we exercise de novo review, we review a trial
court's best-interest determination for abuse of discretion and will reverse only if a trial
court's discretionary determination is not a legally permissible one. Id. We are bound by
the trial court's factual findings if there is any evidence to support them. Id. at 663.
I. Attorney Fees
We generally review a trial court's discretionary decision to award attorney
fees for abuse of discretion. Callen and Callen, 307 Or App 714, 718, 479 P3d 313
(2020). "However, the proper exercise of discretion may be predicated on the trial court's
determinations of questions of law or fact--and those determinations, in turn, may
implicate independent standards of review." Id. (internal quotation marks omitted).
VII. JUVENILE – DEPENDENCY (ORS chapter 419B)
A. Jurisdiction and Venue
1. Jurisdiction
We have discretion to review a juvenile dependency proceeding de
35

novo in exceptional cases. See Dept. of Human Services v. R. H., 320 Or App 383, 385,
512 P3d 1279 (2022) (citing ORS 19.415(3)(b); ORAP 5.40(8)(c)).
In the absence of a de novo review, in reviewing a juvenile court's
determination of jurisdiction in child protection proceedings, we:
"(1) assume the correctness of the juvenile court's explicit findings of
historical fact if these findings are supported by any evidence in the record;
(2) further assume that, if the juvenile court did not explicitly resolve a
disputed issue of material fact and it could have reached the disposition that
it reached only if it resolved that issue in one way, the court implicitly
resolved the issue consistently with that disposition; and (3) assess whether
the combination of (1) and (2), along with nonspeculative inferences, was
legally sufficient to permit the trial court to determine that ORS
419B.100(1)(c) was satisfied."
Dept. of Human Services v. N. P., 257 Or App 633, 639, 307 P3d 444 (2013).
2. Venue
We review the juvenile court's determination of proper venue for legal
error. See Dept. of Human Services v. R. M. S., 280 Or App 807, 383 P3d 417 (2016)
(applying standard).
B. Indian Child Welfare Act (ICWA) (ORS 419B.600 to 419B.665)
Generally, we review the juvenile court's legal conclusions for errors of law
and are bound by its findings of historical fact if there is any evidence in the record to
support them. Dept. of Human Services v. J.G., 260 Or App 500, 504, 317 P3d 936
(2014).
"In juvenile proceedings that do not involve the termination of parental
rights, it is within this court's discretion to review the record de novo. ORS 19.415(3)."
Dept. of Human Services v. S. R. H., 278 Or App 427, 431, 381 P3d 1059, rev den, 360
Or 422 (2016). In the absence of de novo review, "in reviewing the juvenile court's
judgments, we view the evidence, as supplemented and buttressed by permissible
derivative inferences, in the light most favorable to the juvenile court's disposition and
assess whether, when so viewed, the record was legally sufficient to permit that
outcome." Id. (internal quotation marks and brackets omitted).
In a juvenile case involving a question regarding the applicability of ICWA,
"whether a person is a member of a tribe, or eligible for membership in a tribe, is a
36

question of fact." Dept. of Human Services v. H. C. W., 311 Or App 102, 105, 489 P3d
139 (2021). Whether the facts about a child's membership or eligibility for membership
ultimately mean that a child is an Indian child under the ICWA is a legal question for the
court to be determined by reference to the terms of the statute. Id. at 110.
C. Termination of Parental Rights (ORS 419B.500 to ORS 419B.504)
We review a juvenile court's judgment terminating a parent's rights de
novo. ORS 419A.200(6); ORS 19.415(3)(a). "[W]hen we review de novo, we are not
performing our more typical appellate-court function of assessing whether the evidence
before a trial court was legally sufficient to support its ruling. Rather, we are deciding for
ourselves whether the case made by the party with the burden of persuasion persuades us
that that party has proven its case." Dept. of Human Services v. L. M. B., 321 Or App 50,
52, 515 P3d 927 (2022). When the factual basis for the termination of parental rights is
challenged on appeal, we review the record to determine whether that factual basis,
"unless admitted, [is] established by clear and convincing evidence[.]" ORS
419B.521(1). But see ORS 419B.521(4)(a) ("[T]he termination of parental rights to an
Indian child must be supported by evidence beyond a reasonable doubt.").
Given that the standard of proof is the clear-and-convincing-evidence
standard, "we must be persuaded by the evidence that it is highly probable that
termination" of the parent's parental rights is in the child's best interest in order to sustain
the juvenile court's judgment. Dept. of Human Services v. T. L. M. H., 294 Or App 749,
750, 432 8 P3d 1186, (2018), rev den, 365 Or 556 (2019) (citing Dept. of Human
Services v. M. P.-P., 272 Or App 502, 503, 356 P3d 1135 (2015)). To be clear and
convincing, the evidence must make "the existence of a fact highly probable or be of
extraordinary persuasiveness." M. P.-P., 272 Or App at 503 (internal quotation marks
omitted).
D. Other Juvenile Dependency Proceedings
1. Protective custody (ORS 419B.150 to 419B.175)
In exceptional juvenile dependency cases, we have discretion to review the
record de novo. See ORS 19.415(3)(b); ORAP 5.40(8)(c). In the absence of de novo
review, "we review the evidentiary record to determine whether any evidence, and the
inferences that reasonably can be drawn from the evidence, supports the juvenile court's
findings." Dept. of Human Services v. M. H., 256 Or App 306, 327, 300 P3d 1262, rev
den, 354 Or 61 (2013).
2. Permanent guardianship (ORS 419B.365)
In exceptional cases, we have discretion to review a juvenile court's
37

establishment of a permanent guardianship de novo. See ORS 19.415(3)(b); ORAP
5.40(8)(c). In the absence of de novo review, we review the juvenile court's legal
conclusions for errors of law but are bound by its findings of historical fact if there is any
evidence in the record to support them. Dept. of Human Services v. S. N., 250 Or App
708, 709, 282 P3d 901, rev den, 352 Or 564 (2012)
3. Change in Permanency Plan (ORS 419B.470 to 419B.476)
In juvenile proceedings that do not involve the termination of parental
rights, there is a presumption against granting de novo review, and we do so only in
exceptional cases. Dept. of Human Services v. N. S., 246 Or App 341, 344, 265 P3d 792
(2011), rev den, 351 Or 586 (2012); ORAP 5.40(8)(c); see ORS 19.415(3) ("Upon an
appeal in an equitable action or proceeding other than an appeal from a judgment in a
proceeding for the termination of parental rights, the Court of Appeals, acting in its sole
discretion, may try the cause anew upon the record or make one or more factual findings
anew upon the record.").
Without de novo review, "we review the juvenile court's legal conclusions
for errors of law but are bound by its findings of historical fact if there is any evidence in
the record to support them." N. S., 246 Or App at 344. "Where findings on disputed
issues of fact are not made but there is evidence supporting more than one possible
factual conclusion, we presume that the juvenile court decided the facts consistently with
its ultimate legal conclusion." Id. at 345. "Ultimately, we review the facts found by the
juvenile court to determine whether they are supported by any evidence and then to
determine if, as a matter of law, those facts provide a basis for the juvenile court's change
of the permanency plan from reunification to guardianship under ORS 419B.476." Id.
a. Compelling reason determinations
"Whether the juvenile court applied the correct legal standard in making its
'compelling reason' determination presents a question of law that we review for legal
error." Dept. of Human Services v. S. S., 283 Or App 136, 146, 388 P3d 1178 (2016)
(citation omitted).
b. Reasonable efforts and sufficient progress determinations
"The juvenile court's determinations whether DHS's efforts were reasonable
and the parent's progress was sufficient are legal conclusions that we review for errors of
law." Dept. of Human Services v. G. N., 263 Or App 287, 294, 328 P3d 728, rev den, 356
Or 638 (2014).
VIII. JUVENILE – DELINQUENCY (ORS chapter 419C)
38

Procedures and practices applicable to appeals from juvenile court
judgments and orders in juvenile-delinquency cases are governed primarily by ORS
419A.200, ORS 419A.205, and ORS 419A.208. However, many of the provisions of
ORS chapter 19, which govern appeals generally, apply to appeals in juvenile court cases.
We have discretion to review delinquency matters de novo. ORS
19.415(3)(b). We "will exercise [our] discretion to try the cause anew on the record or to
make one or more factual findings anew on the record only in exceptional cases." ORAP
5.40(8)(c).
When we do not exercise our discretion to review de novo, "we review the
juvenile court's legal conclusions for errors of law, and we are bound by the court's
findings of fact so long as there is evidence in the record to support them." State v. J. J.M., 282 Or App 459, 461, 387 P3d 426 (2016) (internal quotation marks omitted). We
review a juvenile court's construction and application of governing statutes for errors of
law. See, e.g., State ex rel Juv. Dept. v. Strothers, 195 Or App 372, 374, 97 P3d 1276
(2004).
We review most procedural rulings (such as a request for a continuance) for
abuse of discretion. See, e.g., State ex rel Juv. Dept. v. Garcia, 180 Or App 279, 44 P3d
591 (2002) (the juvenile court erred in denying the youth's request for the court to set
over the commitment hearing).
When the juvenile court's discretionary decision was based on a substantive
legal conclusion, we review that legal conclusion for errors of law. State ex rel Juv.
Dept. v. Kopp, 180 Or App 566, 579-80, 43 P3d 1197 (2002). Whether a juvenile court's
decision was within the limits of its legal discretion is a question of law that we review
for errors of law. Id.
The Oregon Supreme Court has discretion to limit its review of a Court of
Appeals' decision to questions of law. ORS 19.415(4).
A. Delinquency Adjudications
On review of a juvenile court's determination that a youth is within the
court's jurisdiction for committing conduct that, if committed by an adult, would
constitute an offense, the reviewing court, "'acting in its sole discretion, may try the cause
anew upon the record or make one or more factual findings anew upon the record.'" State
v. J. L. C., 249 Or App 559, 561, 277 P3d 625 (2012) (quoting ORS 19.415(3)(b)).
Otherwise, "we review the juvenile court's legal conclusions for errors of law, but we are
bound by its findings of historical fact unless there is no evidence to support those
findings." Id. We review questions of statutory interpretation as questions of law. State
39

ex rel Juv. Dept. v. Fitch, 192 Or App 56, 60, 84 P3d 190, rev den, 337 Or 282 (2004).
Where a youth challenges the sufficiency of the evidence underlying the
juvenile court's adjudication of the youth as delinquent, "our task is to determine whether,
viewing the evidence in the light most favorable to the state, a rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt." State v. J. C.
L., 261 Or App 692, 700, 325 P3d 740 (2014).
B. Waiving Juvenile Offenders to Adult Court
ORS 419C.349 provides the grounds for waiving a juvenile offender to
adult court, or, if youth is under 15 years of age, ORS 419C.352 provides the grounds for
that waiver. We review questions of statutory interpretation as questions of law. See
generally Perez v. Cain, 367 Or 96, 110, 473 P3d 540 (2020) (applying standard).
C. Diversion
"We review a trial court's determination of a defendant's eligibility for
diversion for errors of law." State v. Tuter, 259 Or App 338, 339, 314 P3d 285 (2013).
D. Dispositions and Requirement of Findings
"We are bound by the juvenile court's findings of fact so long as the record
contains evidence supporting them, and we review the court's legal conclusions for errors
of law. In reviewing questions of the sufficiency of evidence, we must determine
whether a rational trier of fact, drawing reasonable inferences, could have found that the
state proved the elements of the charged offense beyond a reasonable doubt." State v. F.
R.-S, 294 Or App 656, 657, 432 P3d 1149 (2018) (citation and internal quotation marks
omitted).
IX. CRIMINAL – GENERAL
A. General Standards of Review
Generally, we review preliminary findings of fact by the trial court for
whether any evidence in the record supports them, but we review ultimate legal
conclusions for errors of law. State v. Cazares-Mendez, 350 Or 491, 510, 256 P3d 104
(2011).
1. Questions of law
When we consider whether a trial court's legal ruling was permissible, we
make that call without "deference" to the trial court's views and apply either an "abuse of
40

discretion" or a "legal error" standard of review. State v. Ramoz, 367 Or 670, 703, 483
P3d 615 (2021). "We apply an abuse of discretion standard when application of the
appropriate legal principles would permit more than one legally correct outcome, but,
when there is only one legally correct outcome, an appellate court must determine
whether the trial court erred as a matter of law." Id. (internal quotation marks and
brackets omitted).
In a bench trial, an argument that the trial court applied an incorrect legal
standard "is akin to an assertion that a trial court delivered an incorrect jury instruction";
accordingly, we review to determine whether the court instructed itself incorrectly as to
the law, and, if so, whether the erroneous self-instruction was harmless. State v. ZamoraSkaar, 308 Or App 337, 353, 480 P3d 1034 (2020).
2. Questions of fact
On review of a trial court's determination of a preliminary question of fact
under OEC 104(1), "we view the record in the manner most consistent with that ruling
and draw all reasonable inferences and credibility choices that the court could have made
in support of its ruling." State v. Wilson, 323 Or 498, 510-11, 918 P2d 826 (1996).
Where the trial court does not make explicit factual findings, and the evidence would
permit the facts to be decided more than one way, we presume that the trial court found
the facts in a manner consistent with its ultimate ruling. State v. Carlson, 311 Or 201,
214, 808 P2d 1002 (1991). "Unless the evidence in a case is such that the trial court as
finder of fact could decide a particular question in only one way, we are bound by the
trial court's factual findings, including a finding that a party's evidence is not sufficiently
persuasive." Prime Properties, Inc. v. Leahy, 234 Or App 439, 449, 228 P3d 617 (2010)
(quoting State v. Stevens, 311 Or 119, 127, 806 P2d 92, 98 (1991) (internal quotation
marks omitted)).
3. Mixed questions of law and fact
In reviewing mixed questions of law and fact, we generally engage in two
distinct inquiries. First, we consider whether the trial court applied the correct legal
standard. Second, if the court employed the correct legal standard, we consider whether
it erred in the related factual determination. We will affirm that factual determination if it
is supported by any evidence in the record. State v. Jackson, 172 Or App 414, 421, 19
P3d 925 (2001) (citing Ball v. Gladden, 250 Or 485, 443 P2d 621 (1968)).
4. Harmless error review
Oregon's constitutional test for affirmance despite error consists of a single
inquiry: Is there little likelihood that the particular error affected the verdict? The
41

correct focus of the inquiry regarding affirmance despite error is on the possible influence
of the error on the verdict rendered, not whether this court, sitting as a factfinder, would
regard the evidence of guilt as substantial and compelling. State v. Davis, 336 Or 19, 32,
77 P3d 1111 (2003). Rather, when we review the record, we do so in light of the error at
issue. If the particular issue to which the error pertains has no relationship to the
factfinder's determination of its verdict, then there is little likelihood that the error
affected the verdict. However, that is not a finding about how the court views the weight
of the evidence of the defendant's guilt. It is a legal conclusion about the likely effect of
the error on the verdict. Id.
Whether an error is harmless is a question of law. State v. Ramoz, 367 Or
670, 703, 483 P3d 615 (2021). "In determining whether an error is harmless, this court
analyzes whether there was 'little likelihood' that the error affected the verdict." State v.
Ramoz, 367 Or 670, 704, 483 P3d 615 (2021).
a. Harmlessness of erroneous admission or exclusion of evidence
A trial court's error in admitting evidence is harmless if there is "little
likelihood that the error affected the verdict." State v. Davis, 336 Or 19, 32, 77 P3d 1111
(2003). To determine "whether erroneously admitted or excluded evidence affected the
verdict, we consider the nature of the evidence in the context of the trial as a whole."
State v. Simon, 294 Or App 840, 849, 433 P3d 385 (2018), rev den, 365 Or 502 (2019)
(citing Davis, 336 Or at 33-34). In doing that, we "review all portions of the record, not
just the evidence most favorable to the state." Id. If we conclude that a trial court's error
was harmless, we must affirm the conviction. Davis, 336 Or at 32.
b. Harmlessness of erroneous jury instruction
A trial court's instructional error is harmless if there is "little likelihood that
the error affected the verdict." State v. McKinney, 369 Or 325, 334, 505 P3d 946 (2022)
(quoting State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003)). To make that
determination, we consider the instructions "as a whole and in the context of the evidence
and record at trial, including the parties' theories of the case with respect to the various
charges and defenses at issue." State v. Owen, 369 Or 288, 323, 505 P3d 953 (2022)
(quoting State v. Payne, 366 Or 588, 609, 468 P3d 445 (2020)). An instructional error is
prejudicial if the jury instruction, or its absence, "probably created an erroneous
impression of the law in the minds of the jury members and if that erroneous impression
may have affected the outcome of the case." McKinney, 369 Or at 335 (internal quotation
marks omitted).
5. Structural error review
42

"Some federal constitutional violations qualify as 'structural' errors, which
is to say that the error is a 'structural defect affecting the framework within which the trial
proceeds, rather than simply an error in the trial process itself.'" State v. Ramos, 367 Or
292, 300, 478 P3d 515, 522 (2020) (quoting Arizona v. Fulminante, 499 US 279, 310,
111 S Ct 1246, 113 L Ed 2d 302 (1991)). A structural error is a constitutional violation
of the type after which "'a criminal trial cannot reliably serve its function as a vehicle for
determination of guilt or innocence, and no criminal punishment may be regarded as
fundamentally fair.'" Id. at 319 (quoting Rose v. Clark, 478 US 570, 577-78, 106 S Ct
3101, 92 L Ed 2d 460 (1986)). That is because the error "casts so much doubt on the
fairness of the trial process that, as a matter of law, the error can never be considered
harmless." Id. at 315-16 (quoting Satterwhite v. Texas, 486 US 249, 256, 108 S Ct 1792,
100 L Ed 2d 284 (1988) (internal quotation marks and brackets omitted)).
6. Plain error review
ORAP 5.45(1) provides that "[n]o matter claimed as error will be
considered on appeal unless the claim of error was preserved in the lower court and is
assigned as error in the opening brief in accordance with this rule, provided that the
appellate court may, in its discretion, consider a plain error." To review for plain error,
several requirements must be met: The error must be (1) an error "of law"; (2) that is
"apparent," meaning the legal point is obvious and not reasonably in dispute; and (3)
appears "on the face of the record." State v. Reynolds, 250 Or App 516, 559-30, 280 P3d
1046, rev den, 352 Or 666 (2012). In other words, we need not go outside the record or
choose between competing inferences to find it, and the facts that comprise the error are
irrefutable. Id. at 520.
Even where those conditions are satisfied, we must determine whether to
exercise our discretion to reach the error and correct it. Id. Among the considerations
relevant to that determination are
"the competing interests of the parties; the nature of the case; the
gravity of the error; the ends of justice in the particular case; how the error
came to the court's attention; and whether the policies behind the general
rule requiring preservation of error have been served in the case in another
way * * *."
Id. at 521 (quoting Ailes v. Portland Meadows, Inc., 312 Or 376, 382 n 6, 823 P2d 956
(1991) (internal quotation marks omitted)). See also State v. Spainhower, 251 Or App
25, 26 n 1, 283 P3d 361 (2012) (declining to exercise discretion to review for plain error
because defendant could have raised the issue to the trial court).

43

7. Abuse of discretion review
"Discretion" refers to the authority of a trial court to choose among several
legally correct outcomes. State v. Rogers, 330 Or 282, 312, 4 P3d 1261 (2000). "If the
trial court's decision was within the range of legally correct discretionary choices and
produced a permissible, legally correct outcome, the trial court did not abuse its
discretion." Id. "Where, however, a trial court's purported exercise of discretion flows
from a mistaken legal premise, its decision does not fall within the range of legally
correct choices and does not produce a permissible, legally correct outcome." State v.
Romero, 236 Or App 640, 643-44, 237 P3d 894 (2010); see also State v. Gollas-Gomez,
292 Or App 285, 287–88, 423 P3d 162 (2018) (same).
B. Interpretation and Construction
1. Statutory construction
"We review for legal error whether the trial court properly construed a
statute and applied a correct legal theory of criminal liability." State v. Chandler, 293 Or
App 705, 707, 430 P3d 186 (2018) (citing State v. Barboe, 253 Or App 367, 375, 290
P3d 833 (2012), rev den, 353 Or 714 (2013)).
2. Agency interpretation of statutory terms
"[O]ur standard of review of an agency's interpretation and application of a
statute depends on the nature of the term or phrase at issue. We review an agency's
interpretation and application of a nondelegative term for legal error under ORS
183.482(8)(a) without deference to the agency's construction. By contrast, we review an
agency's interpretation and application of a delegative term with deference under ORS
183.482(8)(b). That is, we review to determine whether the agency's exercise of
discretion is outside the range of discretion delegated to the agency by law, or otherwise
contrary to constitutions and statutes or inconsistent with agency rules, formally stated
positions, or past practices." Vaughn v. Marion County, 305 Or App 1, 7 n 3, 469 P3d
231, 235 (2020) (internal citations, brackets, and quotation marks omitted). We review
the interpretation of statutory terms for substantial evidence only if the terms are "exact,"
meaning the terms impart relatively precise meaning. Brundridge v. Board of Parole,
192 Or App 648, 652, 87 P3d 703, rev den, 337 Or 327 (2004).
Considerations that are helpful in determining whether a given statutory
term expresses an incomplete legislative meaning and, thus, is delegative, include: "(1)
whether the court has concluded that the term, or one like it, is delegative in another
context; (2) whether the term is defined by statute or, on the other hand, susceptible to
many different interpretations; (3) whether the term is one that invites a value or policy
judgment; and (4) whether other, related provisions suggest a legislative intent that the
44

term be considered a delegation." Penn v. Board of Parole, 365 Or 607, 628, 451 P3d
589 (2019); see also OR-OSHA v. CBI Services, Inc., 356 Or 577, 585, 590, 341 P3d 701
(2014) (explaining difference between delegative and nondelagative terms, and factors
used to make that determination).
3. Interpretation of administrative rules
We defer to the promulgating agency's interpretation of its administrative
rules. State v. Craigen, 300 Or App 451, 454, 454 P3d 7 (2019), rev den, 366 Or 292
(2020). "In the absence of an interpretation by the promulgating agency that would be
entitled to deference[,] * * * we construe an administrative rule by utilizing the same
analytical framework that applies to the construction of statutes." Id. (internal quotation
marks and citation omitted). We examine the text of the rules in context in order to
discern and give effect to the intent of the body that approved them. Hostetter v. Board
of Parole and Post-Prison Supervision, 255 Or App 328, 335, 296 P3d 664, rev den, 353
Or 747 (2013).
4. Other matters of interpretation and construction
Whether a statute is facially invalid because it restricts speech or assembly
is a question of law that we review for legal error. Couey v. Clarno, 305 Or App 29, 33,
469 P3d 790 (2020), rev den, 367 Or 496 (2021); see also Or Const, Art I, §§ 8 & 26.
C. Pretrial Matters
1. State pretrial appeals
ORS 138.045(1)(d) provides for interlocutory appeal of a pretrial order
suppressing evidence and ORS 138.045(1)(e) provides for interlocutory appeal of a
pretrial order "for the return or restoration of things seized." See State v. Jackson, 368 Or
705, 712, 498 P3d 788, 793 (2021). Some evidentiary determinations are reviewed for
errors of law, while others are reviewed for abuse of discretion. State v. Iseli, 366 Or
151, 161, 458 P3d 653 (2020). When a question involves application of principles that
can lead to "only one legally correct outcome," the appellate court must determine
whether the trial court erred as a matter of law. Id. By contrast, if application of the
appropriate legal principles would permit more than one legally correct outcome, then the
appellate court reviews for abuse of discretion. Id.
2. Suppressing evidence
a. In general
We review a trial court's ruling on a motion to suppress for errors of law.
State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993). We are bound by the trial court's
45

factual findings if there is constitutionally adequate evidence to support them. State v.
Edwards, 319 Or App 60, 62, 509 P3d 177 (2022), rev den, 370 Or 212 (2022) (citing
Ehly, 317 Or at 75). If the trial court did not make express findings of fact on all
pertinent issues, we "presume that the facts were decided in a manner consistent with the
court's ultimate conclusion," but only if the evidence allows for application of that
presumption. Ehly, 317 Or at 75.
b. Suppression of confessions and admissions
Under Article I, section 12, of the Oregon Constitution, individuals have a
right against compelled self-incrimination in criminal prosecutions, including the right to
remain silent. State v. Schrepfer, 288 Or App 429, 435, 406 P3d 1098 (2017). We
review the denial of a motion to suppress confessions or admissions for errors of law.
State v. Tellez-Suarez, 312 Or App 531, 534, 493 P3d 28, rev den, 368 Or 788 (2021).
We defer to the factual findings of the trial court--including as to what transpired during a
custodial interrogation and what a defendant did or did not say. State v. Avila-Nava, 356
Or 600, 609, 341 P3d 714 (2014). If the trial court did not make express findings of fact
on all pertinent issues, we presume that the facts were decided in a manner consistent
with the court's ultimate conclusion, but only if the evidence allows for application of that
presumption. Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968). However, we
assess anew whether those facts suffice to meet constitutional standards. State v. James,
339 Or 476, 481, 123 P3d 251 (2005). See also State v. Davis, 350 Or 440, 459, 256 P3d
1075 (2011); State v. Castillo, 295 Or App 121, 127-28, 433 P3d 467 (2018), rev den,
364 Or 749 (2019).
(1) Compelling circumstances
We review for legal error a trial court's determination as to whether a
defendant was in "compelling circumstances," so as to require the provision of Miranda
warnings, accepting the trial court's findings of historical fact, provided that there is
evidence in the record to support them. State v. Courville, 276 Or App 672, 673, 368 P3d
838 (2016). If the trial court did not make express findings of fact on all pertinent issues,
we "presume that the facts were decided in a manner consistent with the court's ultimate
conclusion," but only if the evidence allows for application of that presumption. Id.
(2) Invocation of right to silence
We review for legal error if defendant's statement amounted to an
unequivocal invocation of their right to remain silent, an equivocal invocation, or no
invocation. State v. Castillo, 295 Or App 121, 128-29, 433 P3d 467 (2018), rev den, 364
Or 749 (2019).
46

(3) Suppression of statements made during investigation
We review a challenge to the admissibility of a defendant's statements
during custodial interrogation as an issue of law. State v. James, 339 Or 476, 481, 123
P3d 251 (2005). The question of what transpired during a custodial interrogation,
however, is an issue of fact for the trial court and the facts found are usually dispositive
of the legal inquiry. Id. We are bound by the trial court's findings of historical fact if
evidence in the record supports them, although we assess anew whether the facts suffice
to meet constitutional standards. Id. If the trial court did not make express findings of
fact on all pertinent issues, we presume that the facts were decided in a manner consistent
with the court's ultimate conclusion, but only if the evidence allows for application of that
presumption. State v. Caprar, 214 Or App 434, 439, 166 P3d 567 (2007), rev den, 345
Or 317 (2008).
c. Suppression of video or audio evidence
We review a trial court's ruling on a motion to suppress for errors of law,
and we are bound by the trial court's findings of fact, provided they are supported by
constitutionally sufficient evidence. State v. Hayes, 272 Or App 1, 3, 353 P3d 1237, rev
den, 358 Or 145 (2015). "If the trial court did not make findings on particular issues and
there is conflicting evidence in the record, 'we will presume that the facts were decided in
a manner consistent with the court's ultimate conclusion.'" Id. (quoting State v. Ehly, 317
Or 66, 75, 854 P2d 421 (1993)) (reviewing denial of defendant's motion to suppress
video evidence).
d. Voluntariness of consent to search
The determination about whether a consent to search is voluntary is a legal issue that we
review independently. State v. Venturi, 166 Or App 46, 50, 998 P2d 748, rev den, 330 Or
375 (2000). However, we are bound by the trial court's findings of historical fact if there
is evidence in the record to support them. Id. If the trial court did not make express
findings of fact on all pertinent issues, we presume that the facts were decided in a
manner consistent with the court's ultimate conclusion, but only if the evidence allows for
application of that presumption. State v. McCray, 304 Or App 279, 284, 466 P3d 1042
(2020).
e. Suppression of evidence obtained by otherwise illegal search or seizure
"When reviewing a denial of a motion to suppress, we are bound by the
facts found by the trial court that are supported by evidence in the record." State v.
Gerety, 286 Or App 175, 179, 399 P3d 1049, rev den, 362 Or 39 (2017). If the trial court
47

did not make express findings of fact on all pertinent issues, we presume that the facts
were decided in a manner consistent with the court's ultimate conclusion, but only if the
evidence allows for application of that presumption. State v. Young, 268 Or App 688,
694, 343 P3d 277 (2015). Whether those facts describe circumstances that justify a
warrantless search or seizure is a question of law. State v. Portulano, 320 Or App 335,
338, 514 P3d 93 (2022).
3. Probable cause—criminal charges
In a cause for malicious prosecution, whether a prosecutor had probable
cause is a question of law for the court to decide if the facts and the inferences from the
facts are undisputed. Merrill v. A. R. G., 286 Or App 487, 494, 398 P3d 954 (2017)
(citing Varner v. Hoffer, 267 Or 175, 178-79, 515 P2d 920 (1973). "If the facts or
inferences are in dispute the jury must decide the facts and the court must instruct the jury
what facts constitute probable cause." Id. at 494-95. Thus, we review the trial court's
probable-cause determination for legal error. Id. at 495.
In cases where a defendant alleges that there was no probable cause to
support their arrest, we review whether a warrant affidavit established probable cause for
legal error. State v. Webber, 281 Or App 342, 346, 383 P3d 951 (2016). A police officer
may also arrest a person without a warrant if the officer has probable cause to believe that
the person has committed a felony. State v. Vasquez-Villagomez, 346 Or 12, 23, 203 P3d
193 (2009) (citing ORS 133.310(1)(a)). Regardless, whether probable cause exists to
support an arrest is a question of law, not fact. Id.
4. Probable cause—search warrants
When a trial or appellate court reviews a challenge to the sufficiency of an
affidavit supporting a magistrate's issuance of a warrant, the question before the
reviewing court is a legal one. A reviewing court asks whether, based on the facts shown
by the affidavit, a neutral and detached magistrate could conclude (1) that there is reason
to believe that the facts stated are true; and (2) that the facts and circumstances disclosed
by the affidavit are sufficient to establish probable cause to justify the search requested.
State v. Castilleja, 345 Or 255, 264, 192 P3d 1283, adh’d to on recons, 345 Or 473, 198
P3d 937 (2008). When determining whether the issuing magistrate could have concluded
that the affidavit established probable cause, we are in the same position as was the trial
court to evaluate "the sufficiency of the facts alleged in the affidavit, the reasonableness
of any inferences involved in resolving the legal question presented by the probable cause
determination, and, ultimately, the existence of probable cause to support the warrant."
Id. at 265-66. We are not bound by nor deferential to the trial court's findings or
conclusions. Id. at 266; see also, e.g., State v. Marsing, 244 Or App 556, 559-61, 260
P3d 739 (2011) (applying standard); State v. Chase, 219 Or App 387, 391-94, 182 P3d
274 (2008) (same).
48

"When evaluating the sufficiency of a search warrant affidavit, our task is
to determine whether the affidavit alleged sufficient facts to permit a neutral and
detached magistrate to determine that seizable evidence probably would be found at the
place to be searched. That standard requires an affidavit to do more than allege facts that
support a mere suspicion that evidence will be found; even a well-warranted suspicion
does not suffice. Rather, the standard of probability requires the conclusion that it is
more likely than not that the objects of the search will be found at the specified location."
State v. Williams, 270 Or App 721, 725, 349 P3d 616 (2015) (internal citations and
quotation marks omitted); see also Castilleja, 345 Or at 264; State v. Goodman, 328 Or
318, 325, 975 P2d 458 (1999).
a. Abandonment of property
Whether a person's statements and conduct unequivocally demonstrate that
the person has relinquished all constitutionally protected interests in property involves
both factual and legal questions, which we review in the same manner as we review other
search or seizure questions under Article I, section 9. State v. Cook, 332 Or 601, 607, 34
P3d 156 (2001). Thus, we defer to the trial court's findings of historical fact if evidence
supports them but determine as a matter of law whether those facts are sufficient to
constitute abandonment. Id. If the trial court did not make express findings of fact on all
pertinent issues, we "presume that the facts were decided in a manner consistent with the
court's ultimate conclusion," but only if the evidence allows for application of that
presumption. State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993). The state, as the
proponent, bears the burden of proving by a preponderance of the evidence that a
defendant has abandoned her constitutionally protected interests in the property. State v.
Bunch, 305 Or App 61, 68, 468 P3d 973 (2020).
b. Consent to search
In reviewing the voluntariness of a defendant's consent to search, we will
not disturb the trial court's findings of historical fact if they are supported by the
evidence; this court is not, however, bound by the trial court's ultimate holding as to
voluntariness, but "assesses anew whether the facts suffice to meet constitutional
standards." State v. Bea, 318 Or 220, 230, 864 P2d 854 (1993). If the trial court did not
make express findings of fact on all pertinent issues, we presume that the facts were
decided in a manner consistent with the court's ultimate conclusion, but only if the
evidence allows for application of that presumption. State v. McCray, 304 Or App 279,
284, 466 P3d 1042 (2020).
c. Traffic stop
49

Under Article I, section 9, of the Oregon Constitution, before a police
officer may stop a citizen, for example, for a traffic violation, the officer must have
probable cause to believe that a violation occurred. An officer has probable cause when
the officer subjectively believes that an offense occurred and when the officer's subjective
belief is objectively reasonable. State v. Ankeny, 306 Or App 300, 302, 474 P3d 406
(2020). To satisfy the objective component, the facts that the officer perceives to exist
must establish the elements of an offense, even if not the offense that the officer believed
the defendant committed. Id. at 302-03. Whether the facts establish probable cause to
stop someone is a question of law that we review for legal error. Id.
5. Grand jury proceedings
Oregon appellate courts do not review sufficiency of evidence at grand jury
proceedings. State v. Belleque, 313 Or App 339, 347, 494 P3d 1004, rev den, 368 Or 597
(2021).
Notwithstanding the Fourteenth Amendment Due Process Clause, a delay
in prosecution due to resubmission of the charges to a grand jury is permissible if it is in
the interest of justice; we review such a decision for abuse of discretion. State v. Stokes,
350 Or 44, 52, 248 P3d 953, cert den, 565 US 920 (2011).
6. Guilty pleas
Oregon appellate courts have "no authority to review the validity of the
defendant's plea of guilty or no contest, or a conviction based on the defendant's plea of
guilty or no contest." ORS 138.105(5). Exceptions include a trial court's "adverse
determination of a pretrial motion reserved in a conditional plea of guilty or no contest
under ORS 135.335." ORS 138.105(5)(a). Appellate courts also have authority to
review "whether the trial court erred by not merging determinations of guilt of two or
more offenses, unless the entry of separate convictions results from an agreement
between the state and the defendant." ORS 138.105(5)(b). See State v. Colgrove, 370 Or
474, 481-497, 521 P3d 456 (2022) (construing ORS 138.105(5)).
a. Withdrawal
Appellate courts generally do not have authority to review a trial court's
denial of a defendant's motion to withdraw a plea of no contest or guilty. See generally
State v. Clevenger, 297 Or 234, 683 P2d 1360 (1984); see also State v. Clements, 265 Or
App 9, 23, 333 P3d 1177 (2014), rev den, 356 Or 689 (2015).
b. Plea agreements
50

"Unless otherwise provided," pursuant to ORS 138.105(5), "we have no
authority to review on appeal challenges seeking to invalidate convictions based on
pleas." State v. Merrill, 311 Or App 487, 491, 492 P3d 722, adh'd to as modified on
recons, 314 Or App 460, 495 P3d 219 (2021), rev den, 370 Or 789 (2023).
In cases where a defendant challenges a court's departure from a plea
agreement at sentencing, we review the claim of sentencing error for errors of law. State
v. Johnson, 288 Or App 220, 224, 406 P3d 139 (2017). A trial court's participation in
plea negotiations is governed by statute. Id. (citing ORS 135.432). If the parties have
reached a tentative plea agreement with the expectation of a reduction in charge or a
sentencing concession, the trial court may allow them to share that agreement with the
court before the defendant enters a negotiated plea. Id. The court may then indicate
whether it concurs in the proposed disposition. Id. The trial court's participation in those
discussions does not bind it to the terms of the resulting plea agreement, and the court
may independently decide whether to impose the negotiated sentence. Id. If, however, a
trial court concurs in the proposed disposition, then later decides to depart from the
agreed-upon sentence, the court must notify the defendant of that decision and allow the
defendant a reasonable period of time in which to either affirm or withdraw a plea of
guilty or no contest. Id.
7. Competency of defendant
In exercising its ultimate decision-making authority over fitness
proceedings, the trial court is the trier of fact, charged with weighing the medical and all
other relevant evidence, and then coming to a decision. State v. Simon, 294 Or App 840,
867, 433 P3d 385 (2018), rev den, 365 Or 502 (2019). Our role in reviewing the trial
court's decision is not to reweigh evidence or assess whether the evidence supports
factual findings different from those made by the trial court. Id. As in other contexts
where the factfinding is entrusted to the trial court, we review only to determine if the
record and all reasonable inferences that could be drawn from the evidence, viewed in the
light most favorable to the trial court's decision, supports the court's findings. Id. In
short, we review to determine whether, "viewed in the light most favorable to the trial
court's resolution of the issue, the record supports the trial court's competency
determination." Id.
8. Double jeopardy
"We review the trial court's denial of defendant's motion to dismiss on
double jeopardy grounds for errors of law, deferring to its factual findings that are
supported by the record." State v. Shaw, 317 Or App 746, 747, 507 P3d 280 (2022).

51

9. Continuances
We review a trial court's grant or denial of a motion for continuance for
abuse of discretion. State v. Hoffman, 321 Or App 330, 335, 515 P3d 912, rev den, 370
Or 602 (2022) (grant); State v. Thomas, 266 Or App 642, 643, 338 P3d 762 (2014)
(denial).
10. Issues concerning counsel
a. Invocation of right to counsel
We review legal conclusions regarding the invocation of the right to
counsel for legal error. State v. James, 339 Or 476, 481, 123 P3d 251 (2005). We defer
to the factual findings of the trial court--including as to what transpired during a custodial
interrogation and what a defendant did or did not say. State v. Avila-Nava, 356 Or 600,
609, 341 P3d 714 (2014). However, we assess anew whether those facts suffice to meet
constitutional standards. James, 339 Or at 481.
b. Waiver of counsel
Whether a defendant validly waived the right to counsel is a question of
law that we review in light of the circumstances particular to each case. State v. Erb, 256
Or App 416, 420, 300 P3d 270 (2013).
c. Withdrawal and substitution of counsel
We review a trial court's decision to grant or deny a motion for withdrawal
of counsel for an abuse of discretion. If a trial court grants a motion to withdraw and
does not appoint substitute counsel, thus requiring the criminal defendant to proceed pro
se, we review for error of law whether the defendant has knowingly and intentionally
waived his or her right to counsel. State v. Langley, 351 Or 652, 666, 273 P3d 901
(2012).
11. Speedy trial
We review the grant or denial of a motion to dismiss on speedy trial
grounds for legal error, accepting the trial court's findings of historical fact, including
those concerning the length and reasons for the delay, if there is evidence in the record to
support them. State v. Johnson, 342 Or 596, 608, 157 P3d 198 (2007), cert den, 552 US
1113 (2008); State v. Delatorre, 316 Or App 559, 561, 502 P3d 767 (2021), rev

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/court_rules%3Aor%3Aa8c5dc0ed3154870. Public record. Not legal advice.