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Oregon Appellate Ct - Aug 24, 2016

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by: Sara Werboff • August 26, 2016 • no comments

CARES Video Admissible at Trial - 403 Balancing

The admission of the CARES interviews of two children at defendant's trial did not violate ORS 136.420 (requiring live testimony in court) because the children testified at trial and were subject to cross-examination. Defendant also argued that the trial court did not conduct OEC 403 balancing because it did not follow the four steps set forth in Mayfield - 1) assessing the proponent's need for the evidence, 2) assessing how prejudicial the evidence is, 3) balancing the proponent's need for the evidence against the countervailing danger of unfair prejudice, and 4) making a ruling as to how much of the evidence is admissible. The court holds that the trial court did conduct OEC 403 balancing by considering and denying defendant's motion which set forth the factors, and further that the trial court did not abuse its discretion in admitting the videotaped interview. Importantly, although the court holds that the trial court's balancing was sufficient in this case, the court also admonishes trial courts that although the Mayfield 403 balancing factors are "a matter of substance not form" that substance is "best expressed in the form set out in Mayfield."

State v. Conrad, 280 Or App 325 (2016) (Ortega, P.J.)


Sentencing - Upholding Mandatory Minimum Sentence for Juvenile

The court holds that it is not required to vacate and remand a mandatory minimum sentence when there was no "affirmative indication that the [trial court] misunderstood the relevant factors it could consider" in assessing whether a mandatory minimum sentence violated Article I, section 16. Defendant argued that the trial court failed to consider defendant's youth when it imposed a Measure 11 sentence, but the court rejects that argument and holds that it will "not treat the [trial court's] silence as an indication that it failed to make necessary factual findings" "in the absence of an indication that the [trial court] misapprehended its authority."

The court also rejects defendant's facial Eighth Amendment challenge to a mandatory minimum sentence imposed on a juvenile offender. Defendant argued that under the reasoning of recent United States Supreme Court cases that require sentencing courts to take the offender's age into account, the mandatory sentence at issue here, ORS 137.707(2), also does not allow the sentencing court to consider the offender's age or age-related characteristics and is therefore facially unconstitutional. The court holds that ORS 137.707(2) is not facially unconstitutional because it does not mandate a life sentence. The court interprets the the United States Supreme Court's decisions in Graham' and Miller to be limited to those particular sentences.

State v. Conrad, 280 Or App 325 (2016) (Ortega, P.J.)


Character Evidence - Exclusion of Character Evidence Concerning Defendant's Sexual Propriety was Not Harmless Error

In a second-degree sexual abuse prosecution, it was error for the trial court to exclude a character witness's testimony that defendant was "appropriate around women" and that error was not harmless. Defendant and the victim, the girlfriend of defendant's friend, both drank until they were very intoxicated. Defendant was put to bed, and for reasons that are unclear, the victim also ended up in defendant's bed. During the night, defendant and the victim had sexual contact. Defendant asserted at trial that he did not remember anything from that night and the victim may have given consent. In support of that defense, defendant sought to introduce testimony as to defendant's propriety around women from a female friend who had spent time with defendant while both were intoxicated.

The court holds that the character evidence was admissible under OEC 404(2)(a) as a pertinent trait of defendant's character in the form of an opinion. Further, the error in excluding the evidence is not harmless because it related to a central issue in the case, was not duplicative of any other evidence, and could have supported a finding that defendant would not have had sex with the victim if she did not want to. Additionally, because defendant had no memory of the night, the character evidence "could have substituted for his inability to recollect and called into question [the victim's] version of events."

State v. Basua, 280 Or App 339 (2016) (Ortega, P.J.)


Post-Conviction - Trial Counsel's Failure to Request Jury Concurrence Instruction Grounds for PCR

Trial counsel's failure to request a jury concurrence instruction (Boots instruction) in a multiple count rape case was deficient performance and petitioner was prejudiced as a result. Petitioner was charged with four counts of first-degree rape involving the same victim. The counts also involved the same date range. During the underlying trial, victim testified to four discrete instances of rape. The state did not elect which counts corresponded to the victim's testimony and trial counsel did not request a jury concurrence instruction to inform the jury that at least 10 jurors must concur on a common nucleus of fact for each conviction. The jury acquitted petitioner of two of the rape counts.

The court holds that trial counsel failed to exercise reasonable professional skill and judgment by not requesting a jury concurrence instruction because without either the state's election or the instruction, there was no assurance that the jury would understand that it was required to find a connection between certain incidents and certain counts. The court further holds that trial counsel's deficient performance prejudiced petitioner. The failure to request a concurrence instruction created an impermissible risk that some jurors were persuaded by evidence as to one of the alleged incidents but not the other or vice versa. The jury's decision to acquit petitioner of two counts weighed in favor of finding prejudice because it showed that the jury did not fully credit all of the evidence against defendant. The court could not infer that 10 jurors believed the same two rapes occurred.

Wilson v. Premo, 280 Or App 372 (2016) (Garrett, J.)


Court-Appointed Attorney Fees - Preservation - Per Curiam

The trial court erred in imposing court-appointed attorney fees when the record was silent as to defendant's ability to pay. In this case, the trial court did not announce during sentencing that it would impose attorney fees and the order appeared for the first time in the judgment, accordingly, preservation was not required.

State v. Walker, 280 Or App 388 (2016) (per curiam)


Civil Commitment - Insufficient Evidence that Appellant Could Not Meet Basic Needs - Per Curiam

The state concedes that the evidence did not support a determination that appellant was unable to meet her basic needs in a way that would result in an imminent, non-speculative threat to her survival.

State v. S.M., 280 Or App 390 (per curiam)


Civil Commitment - Trial Court's Failure to Advise of Rights - Per Curiam

The trial court's failure to advise appellant of her rights under ORS 426.001(1) was plain error. The court exercises its discretion to correct the error after considering the nature of the civil commitment proceedings, the gravity of the violation, the ends of justice, and the lack of harmless error.

State v. T.L.H., 280 Or App 392 (2016) (per curiam)