346 P.3d 601
Or. Ct. App.2015Background
- Defendant convicted by jury 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 forensic interview of the child victim conducted at a Kids’ FIRST Center after the disclosure of abuse.
- Defendant argued ORS 136.420 (requiring testimony be given orally in court) and OEC 403 (exclude evidence if unfairly prejudicial) barred admission of the videotape.
- Trial court admitted the videotape, reasoning ORS 136.420 permits such evidence when the declarant testifies at trial and is subject to cross-examination, and the tape was not unfairly prejudicial under OEC 403.
- Trial court also allowed the jury to take the videotape into the jury room during deliberations; defendant objected.
- Defendant appealed those evidentiary rulings; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS 136.420 barred admission of the out-of-court videotaped interview | State: ORS 136.420 does not bar admission because the victim testified at trial and was subject to cross-examination | Defendant: The victim’s statements on the videotape are "testimony" and must be given orally in court; statute therefore excludes the tape | Court: Affirmed admission — ORS 136.420 construed coextensively with Article I, § 11; where witness testifies and is cross-examined, prior out-of-court statements may be admitted |
| Whether the videotape was inadmissible under OEC 403 | State: Probative value not substantially outweighed by unfair prejudice | Defendant: Tape is unfairly prejudicial and should be excluded under OEC 403 | Court: No abuse of discretion; probative value not substantially outweighed by prejudice |
| Whether sending the videotape into jury room violated OEC 403 or other rules | State: Permissible; jury may access videotape during deliberations | Defendant: Jury access to the videotape during deliberations was improper and prejudicial | Court: Rejected — issue foreclosed by precedent (State v. Disney); sending tape into jury room was permitted |
| Scope/meaning of "testimony" in ORS 136.420 vis-à-vis confrontation rights | State: Statute is coextensive with Article I, § 11 (and Sixth Amendment where applicable); prior statements admissible if witness testifies and is cross-examined | Defendant: Asks for a narrower statutory reading treating videotaped statements as barred | Court: Declined to reinterpret statute differently from constitutional confrontation right; applied established precedent treating ORS 136.420 as coextensive with Article I, § 11 |
Key Cases Cited
- State v. Copeland, 353 Or. 816 (interpreting ORS 136.420 as a statutory confrontation right coextensive with Article I, § 11)
- State v. Crawley, 242 Or. 601 (admission of prior testimony permissible where defendant had prior opportunity to confront and cross-examine)
- State v. Barkley, 315 Or. 420 (videotaped child interview admissible where victim testified at trial and was cross-examined)
- State v. Brumwell, 350 Or. 93 (standard for OEC 403 review; appellate review of trial court's discretionary balancing)
- State v. Disney, 260 Or. App. 685 (holding jury may access videotaped interview during deliberations)