Oregon Supreme Court, June 6, 2019
Summarized by Rankin Johnson, OCDLA
RESTITUTION — Civil defenses to restitution
Civil defense of comparative fault was not available on the facts of this case. Affirmed.
Defendant, who was driving while intoxicated, struck and injured the victim, who had walked onto the road in a dark area not marked for pedestrian crossing. Defendant was convicted of DUII and assault in the third degree. The court imposed a restitution award for the victim's medical expenses. Defendant argued that the victim's comparative fault should reduce the restitution award. The Supreme Court held that, because assault in the third degree was 'wanton' as that term was used at common law, the defense of comparative fault was not available.
In dissent, Duncan, joined by Balmer, disagreed that the defendant's behavior was 'wanton.'
State v. Gutierrez-Medina 365 Or 59 (June 6, 2019) (Flynn, Duncan dissenting) (Marion County, Abar)
VOUCHING - Use of the term 'victim.'
Use of the word 'victim' by state's witnesses was impermissible vouching. Reversed.
Defendant was indicted for unlawful sexual penetration against a single victim. He had been a youth pastor in the mid-1990s, and, at trial, the state planned to call multiple other accusers. Defendant was not indicted for crimes against them because the statute of limitations had run.
The court held that the use of the term 'victim' might be improper vouching, depending on context. The Supreme Court declined to hold that the prosecutor could not use the term 'victim,' because defendant below did not distinguish between proper and improper uses of that term. The Supreme Court held that the state's witnesses could not use the word 'victim' when "the factual question of an accuser's victimhood turn[ed] on the credibility of that accuser's claims."
State v. Sperou 365 Or 121 (June 6, 2019) (Garrett) (Multnomah County, Albrecht)