447 P.3d 23
Or. Ct. App.2019Background
- Victim M (12) lived part-time in defendant's home; she secretly recorded an in-person conversation with defendant on an iPhone that had no active phone service and provided it to her mother.
- Recording captured defendant making sexual propositions and suggesting he expected sexual favors in exchange for money/privileges; mother reported and police investigated.
- Defendant was charged with five counts of first-degree sexual abuse and one count of attempted first-degree sexual abuse; jury convicted on all counts.
- State moved to admit M’s surreptitious recording; trial court admitted it under ORS 165.540(3) (the homeowner’s exception). Defendant appealed admissibility under ORS 165.540 and ORS 41.910.
- Defendant also appealed admission of Detective Yerrick’s testimony about child suggestibility and common offender-victim relationships; trial court overruled Brown/O’Key-style foundation objections and admitted the testimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of surreptitious in-home face-to-face recording under ORS 165.540(3) | Homeowner's exception applies because defendant was a telephone subscriber whose family member recorded a conversation in his home; the exception covers subscribers (and their family) who obtain communications in the home even if the subscribed service wasn’t used | "Subscriber" limits the exception to use of the subscribed telephone/radio service; because M’s iPhone had no service, the exception does not apply and the recording was unlawfully obtained and inadmissible | Court interpreted "subscribers" as persons who subscribe to telecommunication or radio services; ORS 165.540(3) applies to subscribers (and their family members) who obtain communications in the subscriber’s home regardless whether the subscribed service was used; recording admissible |
| Admissibility of detective testimony about suggestibility and offender-victim familiarity | Testimony was grounded in detective’s training and experience; presented as lay-experience evidence, not scientific expert testimony requiring Brown/O’Key foundation | Testimony was social-science-style generalizations (about suggestibility and grooming patterns) and therefore constituted scientific expert evidence requiring a foundation under Brown/O’Key (and Henley/Plueard) | Court held the testimony was experiential, not presented as scientific expertise; unlike Henley/Plueard, witness lacked specialized academic credentials and did not present definitions or research-based principles, so no Brown/O’Key exclusion required |
Key Cases Cited
- State v. Klein, 352 Or. 302 (recognizing ORS 165.540 prohibition on intercepting private conversations)
- State v. Rainey, 294 Or. App. 284 (discussing legislative history and homeowner's exception in ORS 165.540)
- State v. Henley, 363 Or. 284 (expert testimony about grooming can be scientific evidence requiring evidentiary foundation)
- State v. Plueard, 296 Or. App. 580 (applied Henley to exclude grooming testimony presented as scientific)
- State v. Brown, 297 Or. 404 (establishing foundational requirements for scientific expert evidence)
- State v. O'Key, 321 Or. 285 (addressing admissibility and foundation for expert testimony)
- State v. Gaines, 346 Or. 160 (statutory interpretation principles and use of legislative history)
- Crystal Communications, Inc. v. Dept. of Rev., 353 Or. 300 (statutory construction — give effect to all provisions)