State v. Slight ( 2019 )

237
Argued and submitted October 9, affirmed December 11, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
DANIEL MARTIN SLIGHT,
Defendant-Appellant.
Marion County Circuit Court
17CR67722, 17CR07625;
A166774 (Control), A166776
456 P3d 366
In this consolidated criminal appeal, defendant appeals from two judgments
of conviction for one count of sexual abuse in the first degree and two counts
of encouraging child sexual abuse in the first degree. Defendant executed con-
ditional guilty pleas reserving his right of review of specific adverse pretrial
rulings, including his motion in opposition to the denial of pretrial release. On
appeal, the parties first dispute whether the pretrial release issue is moot in
light of defendant’s subsequent conviction. Second, the parties dispute whether
the evidence was sufficient to support the trial court’s denial of pretrial release.
Held: Even though defendant is no longer confined pursuant to the pretrial deten-
tion ruling, a ruling in defendant’s favor on appeal would give him the right
to withdraw his pleas; thus, the Court of Appeals determined that the pretrial
release issue was not moot. Additionally, in examining the interplay between
pretrial release statutes, the Court of Appeals determined that the primary and
secondary release criteria as set forth in ORS 135.230 concern the form of release
only, and do not govern on whether release can be denied at all. Whether pre-
trial release can be denied in cases involving violent felonies is governed by ORS
135.240, which requires that a denial be based on clear and convincing evidence
of a danger of physical injury or sexual victimization to the victim or members
of the public by the defendant while on release. In finding clear and convincing
evidence, the trial court relied, in part, on statements by the prosecutor at the
release hearing. The Court of Appeals held that was error, as an attorney’s uni-
lateral assertions are not evidence. Nevertheless, even when excising the prose-
cutor’s statements, the Court of Appeals determined that the evidence was suffi-
cient to deny pretrial release.
Affirmed.
Sean E. Armstrong, Judge.
Jason E. Thompson argued the cause for appellant. Also
on the brief was Ferder Casebeer French & Thompson, LLP.
Leigh A. Salmon, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
238 State v. Slight
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
General.
Before Shorr, Presiding Judge, and James, Judge, and
Landau, Senior Judge.
JAMES, J.
Affirmed.
Cite as 301 Or App 237 (2019) 239
JAMES, J.
In this consolidated criminal appeal, defendant
appeals from a judgment of conviction in Marion County
Case No. 17CR07625 of one count of sexual abuse in the
first degree, and one count of sodomy in the first degree.
In Marion County Case No. 17CR67722, defendant appeals
from an amended judgment convicting him of two counts of
encouraging child sexual abuse in the first degree. The court
entered both judgments following defendant’s entry of two
conditional guilty pleas pursuant to ORS 135.335(3), which
provides a mechanism for a defendant to reserve “in writ-
ing, the right, on appeal from the judgment, to a review of
an adverse determination of any specified pretrial motion.”
We affirm.
The underlying facts of this case are minimally
relevant to our analysis and we recount them briefly.
Defendant’s nine-year-old daughter accused defendant of
repeatedly sexually abusing her over a period of time. On
February 27, 2017, the Marion County grand jury indicted
defendant in Marion County Case No. 17CR07625 for five
counts of sexual abuse in the first degree, two counts of sod-
omy in the first degree, and two counts of attempted sodomy
in the first degree.
Defendant requested a pretrial release hearing, ask-
ing the court to order a security release and set bail at an
amount that his parents would “more likely than not” post.
The state opposed the request, arguing that there was “a
danger of physical injury or sexual victimization to the
victim or members of the public by the defendant while
on release.” After an evidentiary hearing, the trial court
ordered defendant held without bail.
While that case was pending, on June 15, 2017,
Detective Staples, with the Salem Police Department,
applied for, and was granted, a search warrant, reportedly,
for defendant’s computer, which had been in the custody of
the McMinnville Police Department’s since 2011. An infor-
mant told Staples that she had dated defendant in 2011,
and that at some point in her relationship with him, he had
showed her child pornography on that computer. Staples
also indicated that he was “made aware of an investigation
240 State v. Slight
in 2011 with the McMinnville Police Department involving
[defendant] and [the informant].” Ultimately, according to
Staples, the McMinnville Police Department received the
laptop in question and had held it ever since. A forensic eval-
uation of that computer led to the filing of charges in Marion
County Case No. 17CR67722—three counts of encouraging
child sexual abuse in the first degree.
Defendant moved to controvert the affidavit in sup-
port of the search warrant. The court denied the motion.
On January 2, 2018, pursuant to ORS 135.335(3), in Case
No. 17CR07625, defendant entered conditional guilty pleas
to Counts 1 and 6. Similarly, that same day, in Case No.
17CR67722, defendant entered conditional no contest pleas
to Counts 1 and 2. This appeal followed, and the cases were
consolidated.
On appeal, defendant advances two assignments of
error, the first of which challenges the trial court’s denial of
his motion to controvert the search warrant of his computer.
We reject that assignment without discussion. In his second
assignment of error he challenges the denial of his motion
for pretrial release. The state responds that any pretrial
detention ruling is now moot, and therefore nonjusticiable,
in light of defendant’s subsequent conviction. Alternatively,
the state argues that even if defendant’s challenge to the
court’s ruling is justiciable, the trial court did not err
because, on this record, clear and convincing evidence estab-
lished that defendant presented “a danger of physical injury
or sexual victimization to the victim or members of the pub-
lic * * * while on release.” ORS 135.240(4)(a). Finally, the
state argues that even if there was not clear and convincing
evidence of a risk of physical injury or sexual victimization
under ORS 135.240(4), the trial court articulated a second
independent basis for its decision—the “primary release”
criteria set forth in ORS 135.230(7). According to the state,
the primary release criteria permitted the trial court to
deny release based on its conclusion that “the method most
likely to ensure that [defendant] appears at trial and is not
a danger to the public is to have him remain in custody.”
Because defendant does not separately challenge the trial
court’s “primary release criteria” rationale, argues the state,
defendant cannot prevail on appeal.
Cite as 301 Or App 237 (2019) 241
Whether the statutory requirements existed to deny
pretrial release is a question of law, reviewed for errors of
law. Haynes v. Burks, 290 Or 75, 79 n 3, 619 P2d 632 (1980)
(The court must evaluate “the strength of the state’s proof
rather than the exercise of discretion. The law does not leave
a court discretion to release a defendant charged with mur-
der when the proof of guilt is ‘evident or the presumption
strong,’ nor to deny release when the proof, though sufficient
to go to trial, falls below this standard”) (internal citations
omitted). In making that legal assessment, as is customary,
we defer to the trial court’s factual findings where there is
sufficient evidence in the record to support them. State v.
Ehly, 317 Or 66, 75, 854 P2d 421 (1993).
At the outset, although preservation is not con-
tested in this case, we have an “independent obligation to
determine whether an argument advanced on appeal was
preserved at trial.” Vokoun v. City of Lake Oswego, 189 Or
App 499, 508, 76 P3d 677 (2003), rev den, 336 Or 406 (2004)
(citing State v. Wyatt, 331 Or 335, 344-46, 15 P3d 22 (2000)).
This obligation must be satisfied even when a failure to pre-
serve an argument has not been asserted by the opposing
party. Wyatt, 331 Or at 346-47.
ORS 135.335(3) governs conditional pleas:
“With the consent of the court and the state, a defen-
dant may enter a conditional plea of guilty or no contest
reserving, in writing, the right, on appeal from the judg-
ment, to a review of an adverse determination of any spec-
ified pretrial motion. A defendant who finally prevails on
appeal may withdraw the plea.”
Under the statute, for a conditional plea agreement to effec-
tively preserve an issue for appellate review, the plea agree-
ment must do two critical things: First, it must reserve the
“the right” to “review” in writing. Second, it must “specify”
the pretrial motion for which appellate review is sought.
We have interpreted “specify,” as used in ORS
135.335(3), to mean “to mention or name in a specific or
explicit manner.” City of Lake Oswego v. Albright, 222 Or
App 117, 119-20, 193 P3d 988 (2008). In Albright, we consid-
ered a conditional plea where the plea petition contained the
following language: “Stip facts w[ith] reservation of appeal
242 State v. Slight
rights[.]” Id. at 119. We held that language insufficient under
the statute, reasoning that
“[a]lthough defendant made a handwritten notation on his
plea petition, that notation does not specify in writing the
pretrial motion as the subject of the contemplated appeal,
as the statute requires. The statute means what it says.
The legislature’s intent to restrict the reviewability on
appeal to specified rulings in the event of a conditional plea
of guilty is apparent on the face of ORS 135.335(3), and we
are without authority to relieve defendant from the burden
of complying with what the legislature intended.”
Id. at 120.
Here, defendant’s plea petition reads, “This is a
conditional plea—see court record for specific conditions of
plea.” The parties are in agreement that the “court record”
referenced in the plea petition is the following portion of the
transcript:
“[DEFENSE COUNSEL]: And with that, also, Your
Honor, it is important that the record reflect that this is
a conditional plea. Both sides are well aware of the condi-
tions attached to this plea.
“The plea petitions themselves reference the nature of
the conditional plea in two places. The first paragraph, on
paragraph—on page 2 specifically states that these are
conditional pleas and that the specifics of those conditions
would be found in this record.
“And then they also—both of the petitions reference
in paragraph 11 walking back the blanket prohibition of
appeals to specifically exclude the terms of these condi-
tional pleas. So the—the plea petitions reflect this agree-
ment in two places, Your Honor. And if there’s any ambi-
guity about that from the State at this point, I’d like the
State to put that on the record. Otherwise, we’ll assume
the State has no objection to the nature—to the fact that
these are conditional pleas.
“THE COURT: Okay. Ms. Cadotte.
“[PROSECUTOR]: There’s no objection to that, Your
Honor.
“THE COURT: Okay.
Cite as 301 Or App 237 (2019) 243
“[DEFENSE COUNSEL]: And then those specific
objections—those specific conditions are these, Your Honor:
That [defendant] has the ability to appeal any and all pre-
trial motions made by Your Honor in this matter, includ-
ing, but not limited to the motion to suppress hearing, the
motion to controvert, and then any pretrial motions arising
from bail or release. I think we had at least—I want to say
at least three of those, Your Honor. Two initially and then
one just recently over my client’s—the death of my client’s
mother.
“All of those are envisioned as part of this conditional
plea, so that there’s no restrictions on those appeals. And
again, if the State has any issues with that, now would be
the time for them to bring that up.
“THE COURT: Okay.
“[PROSECUTOR]: And, Your Honor, the State has no
issues with that.”
We conclude that, in this case, defendant’s refer-
ence to the record in the plea petition satisfies the require-
ments of ORS 135.335(3) to specify the pretrial rulings
for which appellate rights are being reserved. While ideal
practice might advise that the pretrial motions being “spec-
ified” be included in the written plea petition, the struc-
ture of ORS 135.335(3) indicates that it is the reservation
of appellate rights that must be in writing, whereas the
specification of the pretrial motions need not always be set
forth in the written plea petition itself. The statute does
not require that the specification of which pretrial motions
are at issue occur in a particular form. Accordingly, that
can be accomplished by, for example, stating them in the
plea petition, by incorporation or reference to another doc-
ument in the record, or, as in this case, through citation to
a portion of the transcript where the specific pretrial rul-
ings were identified on the record. Here, as quoted above,
defense counsel listed specific pretrial motions for which
he was seeking reservation of appellate review. The record
clearly reflects that neither the state, nor the trial court,
were uncertain which “specified” pretrial motions were at
issue. Accordingly, the requirements of ORS 135.335(3) were
satisfied.
244 State v. Slight
Next, we consider whether defendant’s challenge
to the pretrial release decision is justiciable. The state
argues that any pretrial release decision by the trial court
is moot in light of defendant’s subsequent convictions. We
disagree.
A case is moot if the court’s decision in the matter
will not have “some practical effect on the rights of the par-
ties to the controversy.” Brumnett v. PSRB, 315 Or 402, 405,
848 P2d 1194 (1993) (internal citation omitted). However, we
have recognized that the statutory mechanism for entering
into a conditional plea invests the defendant with certain
rights, including the right to withdraw the plea if the defen-
dant is successful on appeal.
“ORS 135.335(3) provides that a defendant may enter a con-
ditional plea and reserve the right to appeal. More to the
point, it provides that, if a defendant prevails on appeal, he
or she may withdraw the plea.”
State v. Dinsmore, 182 Or App 505, 519, 49 P3d 830 (2002).
As the Oregon Supreme Court has noted,
“before 1999, a defendant who, for example, was unsuccess-
ful in pretrial efforts to suppress evidence was typically
required to enter a plea of not guilty and proceed to trial—
often a trial on stipulated facts—to preserve the ability to
contest the adverse pretrial ruling on that motion. [A con-
ditional plea] provides a statutory mechanism for a crimi-
nal defendant to later withdraw a guilty plea if that defen-
dant prevails in challenging the pretrial ruling reserved
for review. As the last sentence of that subsection states,
a defendant who is successful on appeal may withdraw his
or her plea and enter a new plea of guilty, not guilty, or
no contest. If a defendant withdraws the plea and enters
a plea of not guilty, then that defendant may proceed to
trial with the benefit of a successful challenge to an earlier
pretrial ruling.”
State v. McAnulty, 356 Or 432, 445, 338 P3d 653 (2014)
(internal citations omitted).
Accordingly, even though defendant is no longer
confined pursuant to the pretrial detention ruling, our deci-
sion on the legality of that ruling will have a practical effect
on defendant’s rights—if defendant prevails on appeal, he
Cite as 301 Or App 237 (2019) 245
will be invested with a right to withdraw his plea. The issue,
therefore, is not moot.
Having resolved those two preliminary questions,
we now turn to the merits of the trial court’s pretrial release
decision. On appeal, the parties dispute whether there was
sufficient evidence to support the trial court’s denial of pre-
trial release. But before we can evaluate the sufficiency of
evidence in this case, it is necessary to first examine the
statutory requirements governing pretrial release more
generally. In interpreting the statute, our goal is to ascer-
tain the intent of the legislature that enacted it, State v.
Gaines, 346 Or 160, 171, 206 P3d 1042 (2009), which we do
by examining the text and context of the provisions at issue,
looking to legislative history as necessary. State v. Klein, 352
Or 302, 309, 283 P3d 350 (2012). “In construing a statute,
this court is responsible for identifying the correct interpre-
tation, whether or not asserted by the parties.” Stull v. Hoke,
326 Or 72, 77, 948 P2d 722 (1997).
Oregon’s statutory scheme for pretrial release derives
from two constitutional provisions. The first, Article I, sec-
tion 14, of the Oregon Constitution, which dates from the
time of the adoption of the state constitution, provides that
“Offences [sic], except murder, and treason, shall be bailable
by sufficient sureties. Murder or treason shall not be bail-
able, when the proof is evident, or the presumption strong.”
As the Oregon Supreme Court has noted, that provision
established pretrial release as a right in Oregon, distinct
from the federal system.
“The concept of a right to bail, as set forth in Article I,
section 14, and in similar provisions in the constitutions of
other states, was foreign to the English court system, just
as it is foreign to the system of bail in the federal judicial
system under the Eighth Amendment [to the United States
Constitution].”
Priest v. Pearce, 314 Or 411, 417, 840 P2d 65 (1992) (empha-
sis in original; internal citation omitted).
In 1999, the citizens of Oregon adopted Article I,
section 43, of the Oregon Constitution, which added to the
constitutional scheme for pretrial release. In relevant part,
246 State v. Slight
Article I, section 43, provides that designated victims of
crime have
“[t]he right to have decisions by the court regarding the pre-
trial release of a criminal defendant based upon the prin-
ciple of reasonable protection of the victim and the public,
as well as the likelihood that the criminal defendant will
appear for trial. Murder, aggravated murder and treason
shall not be bailable when the proof is evident or the pre-
sumption strong that the person is guilty. Other violent fel-
onies shall not be bailable when a court has determined
there is probable cause to believe the criminal defendant
committed the crime, and the court finds, by clear and con-
vincing evidence, that there is danger of physical injury or
sexual victimization to the victim or members of the public
by the criminal defendant while on release.”
Or Const, Art I, § 43(1)(b).1
Oregon’s statutory scheme for pretrial release—
ORS 135.230 through 135.290—was created in furtherance
of those two constitutional provisions. We begin with some
key definitions. ORS 135.230(8) defines “release” as “tempo-
rary or partial freedom of a defendant from lawful custody
1
It is an unresolved question precisely how Article I, section 14, and Article I,
section 43, interact. To date, only one case has mentioned the overlap, and that
was the context of pretrial release when the defendant was charged with murder.
In Rico-Villalobos v. Giusto, 339 Or 197, 201 n 3, 118 P3d 246 (2005), the Oregon
Supreme Court noted:
“In the trial court, the state, rather than relying on the bail provision of
Article I, section 14, of the Oregon Constitution, cited Article I, section 43(b).
That provision, which was added to the constitution in 1999, provides, in
part: ‘Murder, aggravated murder and treason shall not be bailable when
the proof is evident or the presumption strong that the person is guilty.’ The
quoted sentence differs from the parallel sentence in Article I, section 14,
only in the addition of the crime of ‘aggravated murder’ to the list of poten-
tially nonbailable offenses and the addition of the words ‘that the person is
guilty’ at the end of the sentence. No party cited Article I, section 43(b), in
any brief in this court or suggested that the quoted sentence has any differ-
ent meaning than the parallel sentence in Article I, section 14. We decide
this case under ORS 135.240(2)(a) and Article I, section 14, because those
are the grounds upon which the parties briefed and argued the case in this
court, and we express no opinion as to whether Article I, section 43(b), states
a different standard for determining when bail may be denied.”
Here, as in Rico-Villalobos, neither party focuses on the differences between
the two constitutional provisions. Instead, both parties argue this case based on
statutory grounds. We therefore express no opinion as to whether the statutes at
issue in this case adequately reflect the constitutional requirements.
Cite as 301 Or App 237 (2019) 247
before judgment of conviction or after judgment of conviction
if defendant has appealed.”
There are three types of “release” available to a
magistrate making a release decision: personal recogni-
zance, security release, and conditional release. The first,
personal recognizance, is “the release of a defendant upon
the promise of the defendant to appear in court at all appro-
priate times.” ORS 135.230(6). Except for certain serious fel-
onies (discussed below), recognizance release is the default
presumptive form of release. See ORS 135.243(3) (“A per-
son in custody, otherwise having a right to release, shall
be released upon the personal recognizance unless * * *
[r]elease criteria show to the satisfaction of the magistrate
that such a release is unwarranted.”).
The second, security release, means “a release con-
ditioned on a promise to appear in court at all appropriate
times which is secured by cash, stocks, bonds or real prop-
erty.” ORS 135.230(12). The third, conditional release, is “a
nonsecurity release which imposes regulations on the activ-
ities and associations of the defendant.” ORS 135.230(2). A
defendant released on recognizance is not asked to post a
financial security amount, nor are there conditions placed
on the release. As is clear from the statute, the three types
of release are independent, with little overlap.
In choosing among those three types of release, the
releasing magistrate makes a “release decision.”
“ ‘Release decision’ means a determination by a magis-
trate, using primary and secondary release criteria, which
establishes the form of the release most likely to ensure the
safety of the public and the victim, the defendant’s court
appearance and that the defendant does not engage in
domestic violence while on release.”
ORS 135.230(10). Thus, a “release decision” is a decision as
to the “form of release,” not a decision as to whether release
shall be ordered in the first instance. Accordingly, the “pri-
mary release criteria” and “secondary release criteria” set
forth in ORS 135.240(7) and (11) respectively guide the
magistrate’s decision making as to what form of release—
recognizance, security, or conditional—is most appropriate,
and if conditional release, what conditions are best suited.
248 State v. Slight
The determination of whether a defendant is releas-
able at all—in essence, when release in any form can be
denied—is governed by ORS 135.240, which provides, as
relevant to this case:
“(4)(a) Except as otherwise provided in subsection (5) of
this section, when the defendant is charged with a violent
felony, release shall be denied if the court finds:
“(A) Except when the defendant is charged by indict-
ment, that there is probable cause to believe that the defen-
dant committed the crime; and
“(B) By clear and convincing evidence, that there is
a danger of physical injury or sexual victimization to the
victim or members of the public by the defendant while on
release.
“(b) If the defendant wants to have a hearing on the
issue of release, the defendant must request the hearing at
the time of arraignment in circuit court. If the defendant
requests a release hearing, the court must hold the hearing
within five days of the request.
“(c) At the release hearing, unless the state stipulates
to the setting of security or release, the court shall make
the inquiry set forth in paragraph (a) of this subsection. The
state has the burden of producing evidence at the release
hearing subject to ORS 40.015(4) [(Rule 101. Applicability
of Oregon Evidence Code)].
“(d) The defendant may be represented by counsel and
may present evidence on any relevant issue. However, the
hearing may not be used for purposes of discovery.
“(e) If the court determines that the defendant is eli-
gible for release in accordance with this subsection, the
court shall set security or other appropriate conditions of
release.”
ORS 135.240 creates a mechanism by which release
for a certain category of charged crimes, specifically for this
case, “violent felonies,” defined as “a felony offense in which
there was an actual or threatened serious physical injury
to the victim, or a felony sexual offense,” ORS 135.240(6),
can be denied based upon an evidentiary determination.
That determination can occur entirely on paper, or, at a
defendant’s request, can occur following a hearing. At that
Cite as 301 Or App 237 (2019) 249
hearing, the “state has the burden of producing evidence”
and the defendant has a corollary right to “present evi-
dence.” Whether or not a hearing is held, a denial of release
requires the magistrate to make two necessary determina-
tions. First, the court must find that there exists “probable
cause to believe that the defendant committed the crime.”
That prong is met if defendant was charged by indictment.
Second, the court must conclude that “clear and convincing
evidence,” either in the record, or from evidence presented
by the litigants at the hearing, establishes that “there is
a danger of physical injury or sexual victimization to the
victim or members of the public by the defendant while on
release.”
Absent that finding, the magistrate is without
authority to deny release and must make a “release deci-
sion” pursuant to ORS 135.230(10) choosing among the
types of release. However, for violent felonies, recognizance
release is not permitted. ORS 135.240(4)(e) provides that
the magistrate may only “set security or other appropriate
conditions of release.” In deciding between security release
and conditional release, or in crafting the conditions of
release, the magistrate is bound by ORS 135.245(3), which
states:
“If the magistrate, having given priority to the primary
release criteria, decides to release a defendant or to set
security, the magistrate shall impose the least onerous con-
dition reasonably likely to ensure the safety of the public
and the victim and the person’s later appearance and, if the
person is charged with an offense involving domestic vio-
lence, ensure that the person does not engage in domestic
violence while on release.”
Having discussed the statutory requirements for
pretrial release, we now turn to their application in this
case. According to the state, the record before the magis-
trate showed the following:
• Defendant had previous convictions for “domestic
violence harassment” involving the victim’s mother,
as well as a conviction for reckless endangerment
concerning the minor victim that involved him
breaking “a window to get in.”
250 State v. Slight
• The victim’s mother reported that she and defen-
dant had “a lengthy history of violence,” and that
defendant had violated no contact orders “multiple
times,” including a “violation of a restraining order
constituting domestic violence.”
• The details of the abuse underlying the charges, as
related by the prosecutor. According to the state,
“[t]hat evidence—the nature of the abuse, its occur-
rence over an extended period of time, and defen-
dant’s attempts to prevent the victim from disclosing
the abuse—demonstrate that he is a sophisticated
predator who is adept at manipulation.”
• Defendant’s criminal history.
In assessing whether the state presented clear and
convincing evidence of a danger of physical injury or sexual
victimization to the victim or members of the public by the
defendant while on release, we must first ascertain what
part of the state’s presentation was actually evidence.
ORS 135.240(4)(c) provides that, in considering
whether clear and convincing evidence exists to deny
release, “[t]he state has the burden of producing evidence at
the release hearing subject to [OEC 101(4)].” OEC 101(4)(h),
in turn, limits the applicability of the Oregon Evidence Code
in “[p]roceedings under ORS chapter 135 relating to condi-
tional release, security release, release on personal recog-
nizance, or preliminary hearings, subject to ORS 135.173.”
Specifically, for release hearings, OEC 101(4) excludes
“ORS 40.010 [OEC 100] to [OEC 412] and [OEC 601] to
[OEC 1008].”
Despite the fact that significant portions of the evi-
dence code have been excluded from applicability to a release
hearing, the legislature has clearly mandated that such
decisions be based on evidence. Importantly, one statutory
provision regarding evidence not exempted from release
hearings is ORS 41.010, which defines judicial evidence as
“the means, sanctioned by law, of ascertaining in a judicial
proceeding the truth respecting a question of fact. Proof
is the effect of evidence, the establishment of the fact by
evidence.”
Cite as 301 Or App 237 (2019) 251
The issue of exactly what was, and was not, evi-
dence in the release hearing was explicitly confronted by
the trial court in this case.
“THE COURT: Well, if—the State has to establish
by clear and convincing evidence that there is a danger
of physical injury or sexual victimization to the victim or
members of the public. What is the evidence as to that spe-
cific point that I get to consider?
“[PROSECUTOR]: You can consider the fact that he
was indicted on these current charges. The probable cause,
I gave you a brief—
“THE COURT: That goes to subparagraph (a) of (4)(a),
though.
“* * * * *
“THE COURT: Right. So what I’m having trouble
with is paragraph (4)(a) says, ‘Except when the defendant
is charged by indictment that there is probable cause to
believe that the defendant committed the crime.’
“So he’s been charged by indictment, so we’re past (a).
“[PROSECUTOR]: Uh-huh.
“THE COURT: There is an indictment, so there’s
probable cause.
“And then (b) says, ‘By clear and convincing evidence
that there is a danger of physical injury or sexual victim-
ization to the victim or members of the public.’
“So I’ve heard from the victim’s mother about her
concerns. What other evidence is before me that I get to
consider?
“[PROSECUTOR]: I think you can take into account
not just the indictment, but also the underlying facts. I
think you can take into account, and I would submit—
“THE COURT: Okay. But I don’t know what those
are because I think all you told me was that he had been
accused and that there were physical findings by Liberty
House or a doctor. I don’t know what those findings are—
“[PROSECUTOR]: It was a—
“THE COURT: —so how do I get to consider them?
252 State v. Slight
“[PROSECUTOR]: The nine-year-old disclosed when
she came home from a visitation that she did not want to
get in the shower. She was experiencing some discomfort in
regards to her genital regions. There were red, itchiness. It
hurt her to urinate.
“When her mother was asking why, that’s when the vic-
tim disclosed that there had been abuse. She didn’t disclose
all of the abuse at that time to her mother because they
contacted outside sources to get her seen.
“She was seen at Liberty House. When a child is seen
at Liberty House, their parents are not allowed to be in the
room. They’re not even allowed to view that assessment or
that interview. That’s when the additional information and
disclosures came out in regards to the multiple times that
the defendant would come into her bed at night. She would
wake up to him in bed naked. He would rub his genitals
against her, which she calls her front private parts, and
would put them in her back private parts, and it really hurt
her. She told him to stop—to stop and to halt. And some-
times he would stop and go away.
“But these were—and what’s important to know is that
these are charged as separate criminal episodes. This isn’t
just one night where she’s saying something happened.
This was over a prolonged period of time, which I think you
can take that into account, Your Honor.
“And the manipulation that went into it, where he told
her, ‘You cannot tell anybody or you won’t be able to do some
things you want to do or see some people you want to see.’
“* * * * *
“[DEFENSE COUNSEL]: When the State stands
before you and talks about facts, there are no facts yet.
That is the province of either the—a bench trial or a jury
trial to determine whether these things actually happened
or they’re just allegations that are being made.
“We anticipate being able to demonstrate not only to
this Court, but to the trier of fact, that past allegations
have been thoroughly investigated and debunked. So to be
relying on things of that nature I think is just inappropri-
ate at this point.”
Although that colloquy involved representations by
the prosecutor, we have repeatedly held that an attorney’s
Cite as 301 Or App 237 (2019) 253
arguments are not evidence. State v. Green, 140 Or App 308,
317 n 11, 915 P2d 460 (1996) (internal citations omitted).
Further, we have excluded statements by counsel as qual-
ifying as judicial evidence. See State v. Dugan, 177 Or App
545, 550, 34 P3d 726 (2001) (noting that attorney arguments
are not “evidence” and citing ORS 41.010); State v. Wallace,
170 Or 60, 73, 131 P2d 222 (1942) (“[T]he statement of the
District Attorney * * * was not evidence * * *.”). As we held in
State v. Ordonez-Villanueva:
“Thus, it is incumbent on the state in this case to prove by
a means sanctioned by law that the witness is unavailable.
The question is whether an assertion by counsel is a sanc-
tioned means, i.e. evidence, by which unavailability may be
proven. Black’s Law Dictionary 656 (4th ed 1968) defines
evidence as:
“ ‘Any species of proof, or probative matter, legally pre-
sented at the trial of an issue, by the act of the parties
and through the medium of witnesses, records, docu-
ments, concrete objects, etc., for the purpose of induc-
ing belief in the minds of the court or jury as to their
contention.’
“As shown by that definition, a unilateral assertion of coun-
sel is not evidence, because it is not a medium through
which a party can present proof of a fact.”
138 Or App 236, 244, 908 P2d 333 (1995), rev den, 322 Or
644 (1996) (emphasis added).
We note that we have held, in the context of sentenc-
ing proceedings—another proceeding to which the rules of
evidence are largely inapplicable—that certain statements
by counsel can take on an evidentiary value. In State v.
Balkin, we held:
“In determining whether aggravation factors supported a
departure sentence, the trial court could consider any rele-
vant evidence that it found to be trustworthy and reliable.
ORS 137.090(2). Defendant suggests that the prosecutor’s
statements were unreliable. The presentence investigation
report contains information identical to much of what the
prosecutor told the court. Further, the record indicates
that the court found the evidence given by the prosecutor
to be trustworthy and reliable. We find no error.”
134 Or App 240, 242, 895 P2d 311, rev den, 321 Or 397 (1995).
254 State v. Slight
However, Ordonez-Villanueva and Balkin are not in
conflict. In Ordonez-Villanueva, we noted that “unilateral
assertion[s] of counsel [are] not evidence.” 138 Or App at
244. In Balkin, we did not hold to the contrary, but simply
noted that in the circumstances of that case, and under the
statutory sentencing scheme at issue, the trial court was
authorized to find statements by counsel that were “identi-
cal to much” of the information already contained in other
evidence beyond the statements of counsel—specifically,
presentence reports—reliable. Balkin, 134 Or App at 242.
In this case, the prosecutor’s representation about
the case did not occur at sentencing—after the case had pro-
ceeded through full discovery and an adjudication of guilt—
but rather, at a release hearing, at which point discovery
often has not yet occurred, and the facts of a case have not
yet been vetted by the crucible of the adversary process.
Such statements are the quintessential unilateral assertion
of counsel that are not evidence, and cannot be considered
in assessing whether clear and convincing evidence exists.
Accordingly, we do not consider them.
However, even without the prosecutor’s statements,
the record contains clear and convincing evidence that
there was “a danger of physical injury or sexual victimiza-
tion to the victim or members of the public by the defen-
dant while on release.” First, we note that defendant had a
lengthy criminal history. The specifics of defendant’s crim-
inal history were discussed at length at the hearing, and
were uncontested by either party, although they debated
the value of that history in predicting defendant’s risk on
release. While that history was entirely misdemeanors,
some was directly related to crimes perpetrated against the
family of the victim in this case. Against that background,
the victim’s mother offered a written statement, which was
read into the record by the state at the hearing. That was
evidence. In that statement, the victim’s mother states, in
part:
“Your Honor, I’m asking that [defendant] continue to
be held on no bail. There is a lengthy history of violence
between [defendant] and myself. The State of Oregon has
placed a no contact on us a few times many years ago. He
Cite as 301 Or App 237 (2019) 255
violated the no contacts multiple times. I do not feel I can
feel safe or that my family will be safe if [defendant] is
allowed bail and released.
“[Defendant] knows our address, he knows where [the vic-
tim] attends school, and he knows where my family lives.
[Defendant] has disregard[ed] no contacts in the past and I
do not feel as though he would abide by them now.”
The victim’s mother’s statement offered at the
release hearing speaks directly to the statutory issue: Does
the defendant pose a danger of physical injury or sexual
victimization to the victim or members of the public by the
defendant while on release? Her statement does not relate a
generalized fear but states her concern for further violence
grounded on past behavior. Her statement, coupled with
defendant’s criminal history, shows a pattern of behavior
that defendant has disregarded court orders against this
same victim’s family in the past and has engaged in crimi-
nal behavior against this same victim’s family. Those facts,
together, create clear and convincing evidence that defen-
dant posed a danger of physical injury or sexual victimiza-
tion to the victim or members of the public while on release.
Accordingly, the magistrate did not err in denying pretrial
release.
Affirmed.