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Oregon Appellate Court, March 11, 2020

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by: Rankin Johnson • March 21, 2020 • no comments


Summarized by Rankin Johnson, OCDLA

EVIDENCE - 403 balancing

Defendant's communications with sex-offense victim were admissible to show sexual interest in victim. Affirmed.

Defendant was accused of sex offenses against three different girls, all younger than 14. The state sought to offer evidence of defendant's Facebook communications with one of the victims, evidence of his communications with others that suggested he had sex with children in the Philippines, and evidence of the hidden cameras. The court admitted some of that evidence and excluded some. Although the trial court did not expressly conduct 403 balancing, that requirement was raised in pre-trial pleadings and the colloquy demonstrated that the court adequately considered the issue.

Before trial, defendant pleaded guilty to attempting to use a child in a sexually explicit display and invasion of privacy, based on evidence that he had placed a camera in a bathroom used by one of the victims. During trial, one victim, C, testified that defendant had taken nude pictures of her. In response to a cross-examination question, C said that defendant had taken a picture of a mole in case it turned out to be cancer. The state also played a recording of an interview with defendant when he gave innocent explanations for the pictures. The state asked the court to admit evidence of the hidden camera to show defendant's sexual purpose, and the trial court agreed, as did the Court of Appeals.

During the defense case, the defense offered evidence that police had failed to investigate thoroughly. In response, the state offered evidence that there had been other victims captured by the hidden camera and had followed up with them. The court admitted the evidence, reasoning that the defendant had opened the door, and the Court of Appeals found no error.

State v. Rockett 302 Or App 655 (March 11, 2020) (Armstrong) (Washington County, Erwin)

EVIDENCE - Expert witnesses and cross-examination using 'reliable authorities.'

Prosecutor should not have been permitted to read from text on interviewing guidelines, because it was not shown to be a reliable authority. Reversed and remanded.

A defense expert witness testified about police interviews of the child victims. On cross-examination, the prosecutor relied upon a particular treatise, which the witness said was of poorer quality than prior editions and not consistent with current research. The prosecutor asked whether the treatise contained particular language, which it did.

Because the defense witness did not agree that the treatise was a 'reliable authority,' and the state did not undertake to lay the foundation through its own witness, the trial court erred by permitting the state to use the treatise in cross-examination.

State v. James 302 Or App 717 (March 11, 2020) (Ortega) (Washington County, Wipper)

PROBATION - Conduct constituting violation

Probation court erred by revoking defendant for failure to complete family court, when defendant's family moved out of state and no longer participated. Reversed and remanded.

The Court of Appeals reasoned that the probation condition requiring defendant to complete family court could not plausibly be interpreted to require that he participate when conditions beyond his control prevent him. Because the court considered both permissible and impermissible reasons in its choice to revoke, a remand was appropriate.

State v. Adams 302 Or App 730 (March 11, 2020) (Ortega) (Klamath County, Adkisson)

SENTENCING - Long sentences for juvenile offenders

600 month sentence for murder committed when defendant was 16 violated Eighth Amendment without consideration of factors unique to juveniles. Reversed and remanded.

The sentencing court made specific findings supporting an upward departure, but did not consider how, or whether, defendant's youth was also a factor.

State v. Davila 302 Or App 742 (March 11, 2020) (Tookey) (Clackamas County, Miller)

CONTEMPT - Presence of the court

Rude gesture made by incarcerated inmate appearing in court by video was not in immediate view and presence of the court because the court did not personally see it. Reversed and remanded.

Because the court did not see the gesture, summary contempt was not available, but nonsummary punitive contempt was.

State v. Arnold 302 Or App 765 (March 11, 2020) (Shorr) (Umatilla County, Lieuallen)


Any error in admitting evidence of defendant's refusal to take a breath test was not plain. Affirmed.

State v. Smith 302 Or App 787 (March 11, 2020) (Powers) (Multnomah County, Wittmayer)

APPELLATE PROCEDURE - Matters that may be challenged on appeal

Trial court's 'allowance' of prosecutorial misconduct could only be considered by appellate court when framed as a 'ruling,' such as the failure to declare a mistrial on the court's own motion. Original opinion adhered to.

State v. McMurry 302 Or App 794 (March 11, 2020) (Per Curiam) (Washington County, Garcia)

CONTEMPT - Elements of punitive contempt

Conviction for punitive contempt requires proof that defendant knew of the order at issue. Reversed.

State v. Cavanaugh 302 Or App 800 (March 11, 2020) (Per curiam) (Clackamas County, Lininger)