265 P.3d 58
Or. Ct. App.2011Background
- Benson harassed Ferrell at Home Depot by obscene comments and sticking his tongue in her ear during assistance with purchase.
- Ferrell reported the incident; police interviewed Benson and he admitted to the obscene jokes and the tongue-in-ear act.
- At trial, defense argued Benson lacked intent to harass, suggesting he was trying to be funny; Benson did not testify.
- After resting, the court conducted a jury-present colloquy confirming Benson's right to testify or remain silent and his informed, voluntary non-testimony.
- Jury was instructed that a defendant may not have his decision to not testify be considered as evidence of guilt.
- Benson was convicted of harassment under ORS 166.065 (2007); conviction was appealed on several grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the colloquy violated OEC 513(2) by eliciting Benson's silence in presence of the jury | Benson | Benson | Yes; plain error under OEC 513(2) |
Key Cases Cited
- State v. Brown, 310 Or. 347 (Or. 1990) (plain error analysis framework)
- State v. Godines, 236 Or. App. 404 (Or. App. 2010) (OEC 513(2) scope in jury trials)
- State v. Gornick, 340 Or. 160 (Or. 2006) (face-of-record plain error element)
- State v. Mains, 295 Or. 640 (Or. 1983) (juror influence by trial judge)
- State v. Medina, 39 Or. App. 467 (Or. App. 1979) (juror perception of judge's attitude)
- Bahmatov, 244 Or. App. 50 (Or. App. 2011) (weight of evidence and harmless error analysis)
- State v. Lovern, 234 Or. App. 502 (Or. App. 2010) (plausible competing inferences requirement)
- Ailes v. Portland Meadows, Inc., 312 Or. 376 (Or. 1991) (discretion to correct unpreserved error)