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 - OEC 412 - Evidence of Prior Consent is Admissible When the State Opens the Door By Bringing in Prior Sexual Contacts
The state opens the door to cross-examination that would otherwise be barred under OEC 412 when it elicits testimony on direct of prior sexual contacts between defendant and the complainant. Here, defense counsel sought to ask complainant about his relationship with defendant to support “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.” The state argued on appeal that the only point of the line of defense questions at issue was to elicit a 412-barred inference that there was prior consensual sex, therefore the current incident was consensual. The court finds that complainant’s testimony under direct examination about his prior sexual relationship with defendant opened the door to such an inference: "The state’s invocation of OEC 412 in this posture is, respectfully, ironic". State v Cervantes, 271 Or App 234 (2015).
OEC 801(4)(a)(B) - Witness’ Prior Testimony Can Only be Admitted to Rebut Opposing Side’s Assertions When The Statements Were Made Before There Was a Motive to Fabricate.
Prior witness statements are not admissible at trial as “prior consistent statements” under OEC 801(4)(a)(B) to rebut a charge of recent fabrication, when the prior statements were made at a time when a motive to fabricate already existed.
Here, during a second trial following a mistrial, defendant asserted a charge that complainant had motive to fabricate being sexually abused, in an effort to secure favorable immigration status based on being a victim of sexual abuse; complainant had admitted she was aware of the eligibility criteria at the time she made the initial sex abuse accusations against defendant. In response, the state tried to bolster complainant’s credibility by rebutting defendant’s assertion with testimony from the earlier mistrial and the grand jury. The testimony included details about the abuse that complainant did not assert at the second trial. However, because the prior testimony was made when there was already a motive for complainant to fabricate her story, the prior statements were not permissible to rebut defendant’s “motive to fabricate” assertion. Furthermore, the state sought to admit prior statements generally; not with sufficient particularity. State v Bautista, 271 Or App 247 (2015).
