Oregon Appellate Ct - Aug 24, 2016
by: Sara Werboff • August 26, 2016 • no comments
Character Evidence - Exclusion of Character Evidence Concerning Defendant's Sexual Propriety was Not Harmless Error
In a second-degree sexual abuse prosecution, it was error for the trial court to exclude a character witness's testimony that defendant was "appropriate around women" and that error was not harmless. Defendant and the victim, the girlfriend of defendant's friend, both drank until they were very intoxicated. Defendant was put to bed, and for reasons that are unclear, the victim also ended up in defendant's bed. During the night, defendant and the victim had sexual contact. Defendant asserted at trial that he did not remember anything from that night and the victim may have given consent. In support of that defense, defendant sought to introduce testimony from a female friend who had spent time with defendant while both were intoxicated as to defendant's propriety around women.
The court holds that the character evidence was admissible under OEC 404(2)(a) as a pertinent trait of defendant's character in the form of an opinion. Further, the error in excluding the evidence is not harmless because it related to a central issue in the case, was not duplicative of any other evidence, and could have supported a finding that defendant would not have had sex with the victim if she did not want to because a sexually appropriate person would not do that. Additionally, because defendant's had no memory of the night, the character evidence "could have substituted for his inability to recollect and call into question [the victim's] version of events."
State v. Basua, 280 Or App 339 (2016) (Ortega, P.J.)
Post-Conviction - Trial Counsel's Failure to Request Jury Concurrence Instruction Grounds for PCR
Wilson v. Premo, 280 Or App 372 (2016) (Garrett, J.)
Court-Appointed Attorney Fees - Preservation - Per Curiam
The trial court erred in imposing court-appointed attorney fees when the record was silent as to defendant's ability to pay. In this case, the trial court did not announce during sentencing that it would impose attorney fees, and the order appeared for the first time in the judgment, accordingly, preservation was not required.
State v. Walker, 280 Or App 388 (2016) (per curiam)
Civil Commitment - Insufficient Evidence that Appellant Could Not Meet Basic Needs - Per Curiam
The state concedes that the evidence did not support a determination that appellant was unable to meet her basic needs in a way that would result in an imminent, non-speculative threat to her survival.
State v. S.M., 280 Or App 390 (per curiam)
Civil Commitment - Trial Court's Failure to Advise of Rights - Per Curiam
The trial court's failure to advise appellant of her rights under ORS 426.001(1) was plain error. The court exercises its discretion to correct the error after considering the nature of the civil commitment proceedings, the gravity of the violation, the ends of justice, and the lack of harmless error.
State v. T.L.H., 280 Or App 392 (2016) (per curiam)
