A Book from the Library of Defense

Oregon Appellate Court, April 21, 2021

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by: Rankin Johnson • April 22, 2021 • no comments


Summarized by Rankin Johnson, OCDLA

EVIDENCE - Prejudicial, confusing, or misleading evidence

Trial court did not abuse discretion by excluding part of CARES interview, offered by defendant, as confusing. Affirmed.

In one interview, the victim described physical abuse but denied sexual abuse. In a later interview, she described sexual abuse. In sex-abuse trial, defendant sought to offer the entire first interview, to show the victim's demeanor when being truthful. The court excluded it as confusing, because the first interview was about events not at issue. In affirming, the Court of Appeals found no error and also held that any error was harmless.

State v. Jasperse 310 Or App 703 (April 21, 2021) (Tookey) (Multnomah County, von Ter Stegge)

MENS REA - Intoxication and knowledge

Trial court plainly erred by failing to instruct on mental state for rape. Reversed.

In considering whether to review the unpreserved error, the court observed that defendant had said he was drunk and did not know what he was doing, and thus his mental state was at issue.

State v. Hooper 310 Or App 715 (April 21, 2021) (Tookey) (Linn County, McHill)


Sexual intent is not an element of unlawful sexual penetration. Affirmed.

Defendant, a day-care worker, applied diaper cream to the three-year-old victim's vagina. The trial court found defendant's conduct 'suspicious,' but held that sexual intent had not been proved.

State v. Gilbreath 310 Or App 724 (April 21, 2021) (Tookey) (Washington County, Erwin)

THEFT - Value

In determining whether defendant stole property valued at more than $10,000, replacement value was not an acceptable measure because the state did not prove that market value was reasonably ascertainable. Reversed.

State v. Slater 310 Or App 746 (April 21, 2021) (Shorr) (Douglas County, Marshall)

EVIDENCE - Grooming

Trial court erred in admitting scientific evidence, in the form of police-officer testimony, about grooming, without laying a scientific foundation. Reversed and remanded.

The court held that grooming evidence was relevant to show that defendant's kind conduct toward the victim could have a "dark purpose." The court also held that the defense could not offer evidence of the defendant's sexual propriety toward specific people, but only evidence of sexual propriety in general.

State v. Etzel 310 Or App 761 (April 21, 2021) (Aoyagi) (Linn County, Murphy)

EVIDENCE - Grooming

Grooming evidence is admissible as scientific evidence. Affirmed.

In explaining its ruling, the Court of Appeals noted that the purpose for which the evidence was admitted was not clear from the record, but it was probably to explain defendant's conduct, not to show that the victim had been groomed or to support an inference that, because defendant was a groomer, he was also a sexual abuser.

State v. Henley 310 Or App 813 (April 21, 2021) (Aoyagi) (Malheur County, Baxter)