Oregon Appellate Ct - April 1, 2015

by: Frangieringer and Abassos • April 1, 2015 • no comments

Bias – Evidence of Applying for a U Visa is Relevant Impeachment Evidence Evidence of an application for a U visa based on allegations that a defendant sexually abused a complainant is relevant to show bias. Here, the complainant’s mother applied for a U visa based on the complainant’s allegations that the Defendant had sexually abused her. The trial court excluded evidence of the visa. The Defendant was not required to show that the complainant “knew or believed that her mother would submit a U visa application if [complainant] accused the defendant of sexual abuse.” Rather, the defense demonstrated the relevance of the application by:

• submitting evidence that the complainant’s mother had submitted a U visa based on the allegations;
• that the complainant knew about her mother’s immigration status;
• and that alleging sexual abuse could help her mother obtain a U visa.

With this evidence, a jury could have reasonable inferred that the complainant had a personal interest in helping her mother obtain a U Visa. Thus, the Defendant’s impeachment evidence was relevant and should not have been excluded. State v. Del Real-Galvez, 270 Or App 224 (2015).

Hearsay – Under OEC(18a)(b), if the Declarant Testifies, the Statement is Coming In Under OEC 803(18a)(b) (availability of declarant immaterial) , so long as a witness testifies and is subject to cross-examination, their unavailability is immaterial. Here, the complainant stated in an interview that the Defendant subjected her to “digital penetrations and genital contacts.” At trial, the complainant testified that she “could not remember any of those penetrations or contacts save one.” Because OEC 803(18a)(b) states in the conjunctive that a statement from a hearsay declarant is admissible when the declarant 1) “testifies at the proceeding and is subject to cross-examination or 2) is unavailable as witness . . .” it was immaterial that she was unavailable under the second requirement because she testified and was subject to cross. State v. Bailey, 270 OR App 146 (2015)

Disorderly Conduct – Asking for the Time Is Not Disorderly Conduct 2 Disorderly conduct 2 requires evidence of either physical force or that a defendant’s conduct “was immediately likely to produce the use of physical force by another person.” Here, the Defendant asked several people in a park for the time. At one point he gave a witness a look that was “not good at all.” Because the Defendant never attempted to touch anyone in the park and his conduct was not likely to produce a physical response by someone else, there was insufficient evidence to convict the Defendant of Disorderly Conduct 2. The Defendant’s MJOA should have been granted. State v. Kreft, 270 Or App 150 (2015)

Vouching – Admission of Testimony That Goes to Defense Theory is Harmless Error Vouching is harmless where the statement adds to a defendant’s theory. Here, the Defendant’s theory was that three officers colluded to fabricate a story that the Defendant was intoxicated and belligerent. During one of the officer’s testimony, he stated that he trusted the officer who initiated the contact with the Defendant. In the context of the Defendant’s theory, “the testimony of one possibly lying officer that he trusted another possibly lying officer would not buoy the credibility of the officers’ story.” Rather, the officer’s testimony was exactly “the point that defendant tried to make to the jury,” that the officer would accept the conclusions of another without evaluating the situation for himself. Thus, any vouching was harmless. State v. Thomas, 270 Or App 195 (2015)

Use of Child in Sexually Explicit Display – Permit Means to Make Possible, Not Authority To Prohibit A person commits the crime of attempted use of a child in a display of sexually explicit conduct when a defendant takes a “substantial step toward the criminal objective of allowing or making it possible that a child would be used in a sexually explicit display.” It does not have to be conduct that the Defendant had the authority to prohibit. Here, the defendant had a romantic relationship with a 13 year old child, “and in the context of that relationship, asked the child to take and send to the [defendant] a sexually explicit photograph.” Because a jury could have reasonably inferred that this was a substantial step in having a child used in a sexually explicit display, made possible by the defendant, the trial court was correct to deny the MJOA. State v. Hunt, 270 OR App 206 (2015).

Vouching – Courts Only Have Duty to Strike for “True” Vouching Stating that someone is reciting the facts to the best of their knowledge is not vouching. Here, an officer testified that in a pre-trial interview the complainant recited her version of the facts to the best of her ability. Because this was not “true” vouching, i.e. vouching on the credibility of a witness that serves to undermine or bolster the veracity of the witness, it was not error for the judge to not strike the evidence sua sponte. State v. Hunt, 270 OR App