State v. Serrano (A174829) ( 2023 )

475
Argued and submitted January 24, 2022, reversed and remanded
March 8, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
JORGE ULISES SERRANO,
Defendant-Appellant.
Marion County Circuit Court
19CR75854; A174829
526 P3d 773
Defendant appeals a judgment of conviction after a bench trial for two counts
of using a child in a display of sexually explicit conduct and two counts of second-
degree encouraging child sexual abuse, asserting in a single assignment of error
that the trial court erred in denying his motion to suppress evidence obtained
in the execution of a search warrant for his cell phone. Held: As held this day in
State v. Serrano (A173250), 324 Or App 453, 527 P3d 54 (2023), the court erred in
denying defendant’s motion to suppress evidence from the same search warrant,
because some of the evidence presented was derived from an investigation that
had its source in material incidentally uncovered from a search of defendant’s cell
phone that was beyond the scope of the warrant’s authorization for the search.
Reversed and remanded.
Thomas M. Hart, Judge.
Sara A. Werboff, Deputy Public Defender, argued the cause
for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Peenesh Shah, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Tookey, Presiding Judge, and Lagesen, Chief Judge,
and Aoyagi, Judge.*
TOOKEY, P. J.
Reversed and remanded.
______________
* Lagesen, C. J., vice Sercombe, S. J.
476 State v. Serrano (A174829)
TOOKEY, P. J.
Defendant appeals a judgment of conviction after
a bench trial for two counts of using a child in a display
of sexually explicit conduct, ORS 163.670, and two counts
of second-degree encouraging child sexual abuse, ORS
163.686. In his single assignment of error, he contends that
the trial court erred in denying his motion to suppress evi-
dence obtained in the execution of a search warrant for his
cell phone. We agree, and we reverse and remand.
The charges arose out of defendant’s alleged conduct
in repeatedly requesting, over a period of years, that the vic-
tim, a minor, send him pictures of her naked breasts. The
victim complied with those requests by sending defendant
pictures of her naked breasts, which defendant posted on a
pornography website. Defendant assigns error to the trial
court’s denial of his motion to suppress evidence obtained
through the execution of a search warrant for his cell phone.
We have held today, in a companion case involving
different charges against defendant, that the trial court
erred in denying defendant’s motion to suppress evidence
obtained from the same search warrant. State v. Serrano
(A173250), 324 Or App 453, 527 P3d 54 (2023). We reach
the same conclusion here. Some of the evidence presented
in this case was derived from an investigation that had its
source in material incidentally uncovered from a search
of defendant’s cell phone that was beyond the scope of the
warrant’s authorization for the search. We held in Serrano
(A173250), that under the Supreme Court’s opinion in State
v. Mansor, 363 Or 185, 212, 421 P3d 323 (2018), police could
not use that unauthorized material as a basis for a further
investigation. Thus, evidence derived from the investigation
that had a basis in the unauthorized material, including a
subsequent search warrant for the contents of defendant’s
cell phone, was not admissible.
Evidential error is not presumed to be prejudicial.
OEC 103(1). A trial court’s erroneous evidentiary ruling
does not require reversal if there is substantial and con-
vincing evidence of guilt and little likelihood that the error
affected the verdict. State v. Davis, 336 Or 19, 30, 77 P3d
1111 (2003). The state contends that any error in denying
Cite as 324 Or App 475 (2023) 477
defendant’s motion to suppress in this case is harmless and
does not require reversal, because there was other evidence
that did not derive from the search of defendant’s cell phone
that also supports defendant’s conviction. And, unlike in the
companion case, here the victim’s identity was determined
from sources other than defendant’s cell phone. However,
images from defendant’s cell phone that were uncovered as a
result of the execution of the search warrant were presented
at defendant’s trial, and the prosecutor highlighted them in
closing argument as evidence that defendant knowingly had
control or possession of the images that formed the basis
for the convictions. For that reason, we cannot say that the
erroneously admitted evidence had little likelihood of affect-
ing the court’s verdict.
Reversed and remanded.