747 P.2d 387 | Or. Ct. App. | 1987
Respondent on appeal petitions for reconsideration of our opinion, 85 Or App 169, 735 P2d 1281 (1987), which reversed a jury verdict in his favor and remanded for a new trial. We grant reconsideration, withdraw our former opinion and affirm.
This is a filiation proceeding brought by the state. The child’s mother was married at the time of the child’s birth, although she was not cohabiting with her husband, Beeson. In response to the filiation petition, the alleged father (respondent) filed affirmative defenses, including an allegation that Beeson was presumed to be the father under ORS 109.070.
Trial was before a different judge. Before trial, the state filed a motion in limine to exclude evidence of the Beeson relationship, again on the grounds that the couple was not cohabiting and that blood tests excluded Beeson. The motion was denied.
The state did not object to the evidence of Hedgepeth’s relationship with mother, but instead called him as its witness. In its case-in-chief, the state also questioned mother about her marriage. After the jury verdict, and despite
On reconsideration, we agree with respondent that the state’s tactical decision constituted a waiver of any claim of error about the pretrial denials. Generally, a decision on a pretrial motion to exclude evidence should be left to the discretion of the trial judge. State v. Foster, 296 Or 174, 183, 674 P2d 587 (1983). Despite the state’s claim to the contrary, the record does not show that it made any effort to preserve its position that the denial was an abuse of discretion by raising the matter during trial. It did not choose to wait until respondent presented the evidence and then object; rather, it chose to make the relationships an issue. No party can simultaneously object to evidence and offer the same evidence.
In its response to the petition for reconsideration,
“apparent aversion to recognizing the conclusive impact of blood test exclusion evidence.
“* * * * *
“If, in a preliminary hearing, the petitioner can establish by blood test evidence that meets the test of ORS 109.250 to 109.262 that a given individual is not the father of the subject child, the respondent should be precluded, upon sufficient motion, from introducing evidence of a sexual relationship between that man and the mother, or suggesting that such a relationship existed.”
By that, the state asks us to determine a case other
In its original brief, the state also assigned error to the admission of testimony by respondent that mother had sexual relationships with other men. We held that admission of that evidence, in conjunction with the evidence about Beeson and Hedgepeth, was reversible error. We noted, however, that just one of the pieces of evidence might not have been so prejudicial as to require a new trial. The alleged father’s testimony, standing alone, does not require reversal.
Petition for reconsideration granted; former opinion withdrawn; affirmed.
ORS 109.070 regulates proof of paternity of a child conceived during marriage.
The state does not assign as error the denial of the motion in the light of the summary judgment.
The state filed the response at our request.
The state urges us to determine that ORS 109.258, which is designed to protect an incorrectly accused putative father, is a legislative conclusion that blood test evidence which excludes a man as the father is conclusive. The state did not make that argument to the trial court, nor did it do so in its opening brief before us. We will not consider it for the first time on reconsideration.