DocketNumber: 201210732; A152504
Citation Numbers: 269 Or. App. 844, 346 P.3d 601
Judges: Flynn, Lagesen, Muniz, Sen
Filed Date: 3/18/2015
Status: Precedential
Modified Date: 9/9/2022
Defendant appeals from a judgment entered after a jury convicted him of two counts of first-degree sodomy, ORS 163.405, and two counts of first-degree sexual abuse, ORS 163.427. Before trial, defendant moved to exclude a videotaped interview of the child victim conducted at the Kids’ FIRST Center after the victim disclosed the abuse. Defendant argued that both ORS 136.420 and OEC 403 precluded the trial court from admitting the videotaped interview into evidence. The trial court denied the motion, reasoning that ORS 136.420 permitted the introduction of the videotape when the child victim would be testifying at trial and subject to cross-examination, and that the videotape was not unfairly prejudicial so as to require exclusion under OEC 403. On appeal, defendant assigns error to those rulings, as well as to the trial court’s decision to send the videotape into the jury room during deliberations. We affirm.
We review for legal error the trial court’s determination that ORS 136.420 did not require the exclusion of the videotaped interview. See State v. Gaines, 346 Or 160, 171-72, 183, 206 P3d 1042 (2009); PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993). That statute provides:
“In a criminal action, the testimony of a witness shall be given orally in the presence of the court and jury, except:
“(1) In the case of a witness whose testimony is taken by deposition by order of the court in pursuance of the consent of the parties, as provided in ORS 136.080 to 136.100;[1 ] or
“(2) As provided in ORS 131.045.[2 ]”
ORS 136.420.
We need not resolve the parties’ dispute over the word “testimony” in ORS 136.420. Even assuming that the victim’s statements on the videotape qualify as “testimony” within the meaning of ORS 136.420, that statute, as interpreted by both the Supreme Court and our court, did not bar the admission of those out-of-court statements under the circumstances present here. Both we and the Supreme Court long have interpreted ORS 136.420 (and its predecessors)
So interpreted, the statute permits the introduction into evidence of out-of-court statements — even if such statements could be considered “testimony” within the meaning of ORS 136.420 — under the same circumstances in which Article I, section 11, permits the introduction into evidence of out-of-court statements. See Crawley, 242 Or at 603-06
Here, case law makes clear that the admission of the videotape comported with defendant’s confrontation rights under Article I, section 11. That is because the victim testified at trial and was subject to cross-examination, and we have held that Article I, section 11, does not prohibit the introduction of a witness’s otherwise admissible out-of-court statements where the witness testifies at trial and is subject to cross-examination. See State v. Barkley, 315 Or 420, 431, 846 P2d 390, cert den, 510 US 837 (1993) (Article I, section 11, not violated by admission into evidence of videotaped interview of child sex abuse victim where victim testified under oath at trial and the defendant had the opportunity to cross-examine her about statements made on videotape and
Defendant next assigns error to the trial court’s determination that OEC 403
Finally, defendant assigns error to the trial court’s decision to send the videotape into the jury room during deliberations, arguing that OEC 403 barred the court from doing so. Even if that argument is adequately preserved
Affirmed.
ORS 136.080 to 136.100 relate to the grant of a trial postponement that is contingent on “consent that the deposition of a witness may be taken and read on the trial of the case,” ORS 136.080, and, when that occurs, “the deposition shall be taken and filed in court and may be read on the trial of the case in like manner and with like effect and subject to the same objections as in civil cases,” ORS 136.100.
ORS 131.045 specifies the circumstances under which a person may make a “personal appearance” before a court in a criminal proceeding by “simultaneous electronic transmission.”
ORS 136.420 has been a part of Oregon law, in more or less the same form as today, since 1864. Originally enacted as section 213 of Chapter XXII of the Criminal Code of the General Laws of Oregon, it subsequently was codified at ORS 136.530. General Laws of Oregon, Crim Code, ch XXII, § 213, p 478 (Deady 1845-1864); former ORS 136.530 (1953). It was renumbered to ORS 136.420 in 2009.
That clause confers upon a criminal defendant “the right * * * to meet the witnesses face to face.” Or Const, Art I, § 11.
We note that, to the extent that Echeverría concluded that the admission of the out-of-court statements at issue comported with the Confrontation Clause of the Sixth Amendment to the United States Constitution, that conclusion has been called into question by the United States Supreme Court’s decision in Crawford v. Washington, 541 US 36, 124 S Ct 1354, 158 L Ed 2d 177 (2004).
The admission of the videotape under these circumstances also comported with defendant’s confrontation rights under the Sixth Amendment. See Crawford, 541 US at 59 n 9 (“[W]e reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.”).
In his brief on appeal, defendant acknowledges that ORS 136.420 has long been understood as a “legislative embodiment” of Article I, section 11. Consistent with that interpretation, defendant asks this court to construe ORS 136.420 coextensively with Article I, section 11 — and, in part, the Sixth Amendment — for purposes of defining “testimony,” but nonetheless appears to suggest that the statute should be accorded a different meaning than the constitutional provisions for purposes of determining whether the admission of such testimony violated the statute. Defendant does not articulate a basis for that conflicting treatment, and he has not developed an argument as to why, notwithstanding the longstanding authority treating ORS 136.420 as having the same scope as the confrontation right in Article I, section 11, we should nonetheless interpret it to have a different scope under the circumstances present here.
OEC 403 states:
“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence.”