450 P.3d 983
Or. Ct. App.2019Background
- Defendant (Zaldana‑Mendoza) was convicted of burglary, sexual abuse, and unlawful sexual penetration arising from an incident on June 1, 2015. He claimed the sexual contact was consensual.
- Before trial, defendant sought to testify that he and the alleged victim (A) had consensual sex on May 27, less than a week before the charged incident; OEC 412 (Oregon’s rape‑shield statute) generally bars such evidence but provides exceptions.
- The court held an in‑camera OEC 412 hearing, heard competing testimony, and excluded defendant’s proffered testimony because the judge found defendant not credible. The court did not reach whether any OEC 412 exception or constitutional right required admission.
- At trial, the excluded testimony was not presented; the jury acquitted on attempted rape but convicted on other counts. Defendant appealed, arguing the exclusion (as a credibility ruling) violated his Article I, §11 jury‑trial right and other constitutional rights.
- The Court of Appeals reversed and remanded, holding the court’s exclusion based solely on its credibility determination violated defendant’s right to have a jury decide factual issues under Article I, §11, and remanded for further OEC 412 proceedings to determine admissibility and whether a new trial is required.
Issues and Key Holdings
| Issue | State's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a trial court may exclude a defendant’s proffered evidence of an alleged victim’s past sexual conduct solely because the judge finds the defendant not credible under OEC 412(4)(b). | The court permissibly decided a preliminary factual question at the in‑camera OEC 412 hearing and may exclude evidence if the judge does not find the proffer believable. | Excluding evidence solely on the judge’s credibility determination violates the defendant’s Article I, §11 right to have a jury decide factual disputes and to present a complete defense. | Reversed: Article I, §11 prohibits excluding such evidence solely because the judge disbelieves it; credibility determinations that resolve conditional factual disputes are for the jury if the evidence is otherwise admissible. |
| Preservation: whether defendant preserved his jury‑trial constitutional claim. | Argued defendant did not explicitly raise the jury‑trial right below. | Defendant points to his written motion citing Article I, §11 and oral argument that credibility is for the jury. | Preserved: Court finds the record (written motion + oral argument) sufficient to preserve the jury‑trial claim. |
| Harmlessness / alternative affirmance: even if error, would the evidence still be inadmissible under OEC 412 exceptions or be harmless? | Even assuming defendant’s testimony true, it would not fit OEC 412(2)(b) exceptions and, alternatively, overwhelming evidence of guilt makes any error harmless. | Admission of the prior encounter could have materially affected credibility and context for intent/consent; error was not harmless. | Not resolved in state’s favor: court declines to affirm on alternative grounds because trial court never made the necessary findings or balancing; also cannot conclude exclusion was harmless. |
| Remedy / scope of remand | N/A | Defendant seeks reversal and reconsideration of admissibility; possibly new trial. | Reversed and remanded for the trial court to conduct proper OEC 412 proceedings (consider exceptions, constitutional claims, and discretionary balancing) and then decide whether a new trial is necessary or appropriate. |
Key Cases Cited
- United States v. Platero, 72 F.3d 806 (10th Cir. 1995) (pre‑1994 FRE 412 practice of judges excluding evidence based on judge’s disbelief violated jury‑trial and confrontation concerns; revised federal rule requires sufficiency for a jury finding)
- State v. Cervantes, 130 Or. App. 147 (Or. Ct. App. 1994) (interpreting OEC 412 text as previously authorizing judge to determine conditional facts at in‑camera hearings)
- State v. Carlson, 311 Or. 201 (Or. 1991) (distinguishing judge‑decided preliminary fact issues under OEC 104(1) from conditional‑relevancy issues under OEC 104(2))
- State v. Davis, 350 Or. 440 (Or. 2011) (examining Oregon constitutional text and history to construe jury‑trial protections)
- State v. Baughman, 361 Or. 386 (Or. 2017) (remand for trial court to perform correct discretionary balancing under evidence rules and to determine whether a new trial is appropriate)
- State v. Muyingo, 171 Or. App. 218 (Or. Ct. App. 2000) (describing the three‑step OEC 412 admissibility inquiry)