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State v. Davis

Court of Appeals of Oregon

February 22, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
DELANO D. DAVIS, aka Terry Bernard Blake, Defendant-Appellant.

          Argued and submitted February 6, 2017.

         Multnomah County Circuit Court 140331249 Kelly Skye, Judge.

          George W. Kelly argued the cause and fled the brief for appellant.

          Jennifer S. Lloyd, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael S. Shin, Assistant Attorney General.

          Before DeVore, Presiding Judge, and Garrett, Judge, and Aoyagi, Judge.[*]

         Case Summary:

         Defendant appeals a judgment convicting him of unlawful possession of a short-barreled rife. Defendant challenges the denial of his motion for a new trial under ORCP 64 B based on newly discovered evidence, irregularity in the proceeding, and misconduct by the prevailing party.

         Held:

         The trial court did not abuse its discretion in denying defendant's motion.

         Affirmed.

         [290 Or.App. 445] AOYAGI, J.

         Defendant appeals a judgment convicting him of unlawful possession of a short-barreled rifle. In his first assignment of error, defendant challenges the trial court's refusal to give a "less satisfactory evidence" jury instruction. We reject that argument without written discussion. In his second assignment of error, defendant challenges the denial of his motion for a new trial based on newly discovered evidence, irregularity in the proceeding, or misconduct by the prevailing party. For the reasons that follow, we also reject that argument. Accordingly, we affirm.

         BACKGROUND

         Defendant was charged with unlawful possession of a short-barreled rifle, ORS 166.272; felon in possession of a firearm, ORS 166.270; and unlawful use of a weapon, ORS 166.220. All three charges included the additional element of "with a firearm, " ORS 161.610(2). The second charge was dismissed, and the jury acquitted defendant on the third charge. Defendant was convicted only on the first charge. Because our analysis requires us to evaluate whether defendant was prejudiced by the absence of certain ...


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