Oregon Appellate Ct - May 20, 2015

by: Abassos and Kit Taylor • May 20, 2015 • no comments

Attorney Fees - The Court Must Determine Ability to Pay

Before imposing attorney fees, a judge must determine whether the defendant has the ability to pay such fees. Here, the judge neither engaged in a colloquy with the defendant nor put facts on the record to support ability to pay. Thus, it was a plain error. The court decides to correct the error because defendant received prison time (as opposed to probation) and the record contained no evidence of another source of income or "that he has or will have the capacity to pay the fees." In contrast, the court recently chose not to correct the same error in State v Baco because the defendant received probation (and therefore was not prevented from working) and the defendant agreed to attorney fees on another case being sentenced at the same time. State v Hunt, 271 Or App 347 (2015).

Sex abuse – Defense Counsel can Cross-Examine Complainant on Contextual Facts Relevant to its Case when Opposing Counsel “Opens the Door” to Such Testimony.

Contextual facts relevant to the defense theory are admissible when opposing counsel “opens the door” to such evidence through its questioning of complainant.

Here, the state questioned complainant under direct examination about his past relationship with defendant, during which complainant testified to sexual contacts he had with defendant beyond those with which defendant was charged. When defense counsel sought to cross-examine complainant as to whether he had engaged in consensual sex with defendant, the trial court barred the testimony allowing questioning only as to whether complainant lied about his age. However, the testimony was material to the defense because it could have (though was unlikely to given testimony already given) overcome actual consent because complainant was over the age of 16, and therefore could have supported defense’s theory that defendant was reasonably mistaken about complainant’s age with respect to the second and third degree sexual abuse charges. Additionally, the testimony could have overcome forcible compulsion with respect to the first degree sodomy and sexual abuse charges. Furthermore, even if the testimony would not alone disprove the elements of the charged sexual contacts, an admission from the complainant on the voluntariness of other sexual contacts with defendant “related materially to defendant’s position that [complainant] had consented in fact to the charged contacts, as part of an ongoing voluntary relationship, and fabricated his accusations only after that “relationship broke apart.” State v Cervantes, 271 Or App 234 (2015).