Oregon Appellate Ct - April 1, 2015

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

Bias – Evidence of a U Visa Application is Relevant Impeachment Evidence

Evidence of an application for a U visa (an immigration visa based on being the victim of a crime) 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 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 reasonably 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).

Asking for the Time Is Not Disorderly Conduct

Disorderly conduct 2 requires either physical force or conduct that is “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 and his conduct was not likely to produce an immediate physical response, there was insufficient evidence of Disorderly Conduct 2. The Defendant’s MJOA should have been granted. State v. Kreft, 270 Or App 150 (2015)

Vouching – Admission of Vouching That Goes to Defense Theory is Harmless Error

The appellate court will not address the question of whether a statement is vouching where the statement is consistent with the 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, the court finds that "any error 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 – “True” Vouching

Stating that someone is reciting the facts to the best of their knowledge is not "true vouching". The distinction between true vouching and implicit vouching is relevant where the defendant does not object at trial. 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. directly commenting on the credibility of a witness, the appellate court will not address the potential issue as plain error. State v. Hunt, 270 OR App

Hearsay – Under OEC(18a)(b), Unavailability is Immaterial if the Declarant Testifies

Under OEC 803(18a)(b), so long as a witness testifies and is subject to cross-examination, the unavailability of the witness is immaterial. Here, the complainant testified at trial that she was able to remember almost nothing about the incidents. So the defense argued that she was unavailable for cross. Because OEC 803(18a)(b) says that a statement from a hearsay declarant is admissible when the declarant either 1) “testifies at the proceeding and is subject to cross-examination or 2) is unavailable as witness . . .” it was immaterial that the witness was unavailable because she testified and was subject to cross. State v. Bailey, 270 OR App 146 (2015)