[DV_listserv] Case Law Updates--good news!

[Domestic Violence issues]

EVIDENCE-HEARSAY: Various statements by murder victim before her death were
admissible statements of state of mind and excited utterances
SENTENCING: Trial court lacked authority to impose "no contact" order as condition of
incarceration.
State v. Blaylock, 267 Or App __, __ P3d __ (December 10, 2014) (Deschutes)
(AIC Jennifer Lloyd). Defendant was charged with murdering his wife by strangulation; at trial,
he claimed that he had accidentally caused her death while defending himself from an attack by
her. To show that the victim was fearful of defendant during a period of time before her death,
the state offered testimony from some of the victim's friends about statements she made during
that time period. The statements reflected the victim's fear of defendant because of a
strangulation incident, referred to the fact that defendant had guns, and stated her fear that her
family would suffer if she reported the offense. Defendant objected to certain portions of those
statements on relevance, hearsay, and "propensity" grounds, as described below. The trial court
(Judge A. Michael Adler) admitted the proffered statements on various bases, and the jury found
him guilty. At sentencing, the court ordered that defendant have no contact with two specific
individuals and members of their families, apparently during the period of his incarceration.
Held: Remanded for entry of a corrected judgment omitting the challenged "no contact"
provision; otherwise affirmed (Hadlock, J.). [1] Defendant's hearsay challenge to the victim's
statement to a colleague, days before her death, that she "hope[d] he is not drunk when I get
home" fails; the statement was admissible under OEC 803(3) to prove her then existing state of
mind. The mere fact that the inference about her state of mind arose only if the jury believed the
truth of her statement did not preclude admission under OEC 803(3). [2] Defendant's objections
based on hearsay, relevance, and propensity to portions of the victim's statements to a friend, on
two occasions months before her death, about her fear of defendant, fail. [a] The statements
reflecting her fear were admissible under OEC 803(3), except to the extent that one of the
statements consisted of a description of a past event of strangulation, which falls outside the
scope of the rule. [b] Nevertheless, the trial court found that the statement about the prior act of
strangulation was an excited utterance under OEC 803(2), and the evidence supports the findings
underlying that conclusion. [c] And because the prior act of strangulation was relevant to
defendant's hostile motive toward the victim, it was properly admitted under OEC 401.
[3] Finally, even if some of the victim's statements to another colleague in the month before her
death referring to an act of strangulation, making reference to defendant's possession of guns,
and expressing fear, fell outside the scope of the state-of-mind exception-which was the sole
basis for the trial court's ruling admitting the evidence-any error admitting the statements was
harmless because the statements were cumulative to other, properly admitted evidence. [4] The
trial court lacked authority to order defendant to have "no contact" with third parties during
period of DOC custody. See State v. Langmayer, 239 Or App 500 (2010) (a court does not have authority to impose a condition of incarceration).
http://www.publications.ojd.state.or.us/docs/A150228.pdf

SEX CRIMES-FORCIBLE COMPULSION: To prove forcible compulsion, state need not
prove that the defendant applied force directly to the victim's body; evidence that
defendant used force to keep the victim from opening the door, and that force compelled
the victim to submit to sexual touching, was sufficient.
State v. Digesti, 267 Or App __, __ P3d __ (December 10, 2014) (Deschutes)

(AIC Jennifer Lloyd). Defendant forcibly touched the teenaged victim after cornering her in a
bathroom at her mother's house and using his foot to prevent her from opening the door. He was
charged with two counts of first-degree sexual abuse by means of forcible compulsion. At trial,
he moved for a judgment of acquittal on the forcible-compulsion element, arguing that his act of
forcefully keeping the door closed to prevent the victim from leaving the bathroom is not
"physical force" within the definition of forcible compulsion. The trial court (Judge Roger
DeHoog) denied the motion and the jury convicted defendant on both counts. On appeal,
defendant reasserted that claim, along with an unpreserved claim that the trial court committed
"plain error" by not giving a jury instruction that would have informed the jurors that they
needed to find that defendant acted "intentionally" with respect to the element of forcible
compulsion.
Held: Affirmed (Tookey, J.) [1] ORS 163.305(2)(a) contains no requirement that the
physical force applied by a defendant must be applied directly to the victim's body to constitute
forcible compulsion. Rather, the state must establish that the defendant "subjected" the victim to
physical force in a way that caused or compelled the victim to submit to the sexual contact, and a
jury reasonably could conclude that that occurred in this case. [2] Even if the trial court
committed plain error under State v. Nelson, 241 Or App 681 (2011), rev dismissed (2012),
by not instructing the jury that defendant had to act intentionally with respect to the forcible compulsion
element, the Court of Appeals declined to exercise its discretion to review the claim
because any error was harmless: there was little likelihood that the jury would have found that
defendant had engaged in the act of using the door to prevent the victim from leaving without
having the "conscious objective" to do so.
http://www.publications.ojd.state.or.us/docs/A152522.pdf

S.L.L. v. MacDonald
Date Filed: 12-17-2014
Case #: A149342
Schumann, S.J. for the Court; Lagesen, P.J.; & Duncan, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A149342.pdf
CIVIL STALKING PROTECTIVE ORDER: While a conditional threat alone is not sufficient to satisfy the immediacy element for granting a stalking protective order (SPO), the context of the threat and other evidence can sufficiently establish an immediate threat for a court to grant an SPO.
Respondent appealed the trial court's decision to grant petitioner's motion for permanent stalking protective order (SPO). In 2009, while petitioner and respondent were married, respondent choked and beat petitioner and was subsequently convicted of felony assault in Washington. A provision of respondent's sentence prohibited respondent from contacting petitioner. Petitioner moved to Multnomah county, and filed a motion for an SPO, alleging that respondent had contacted petitioner in violation of the Washington sentence provision. The trial court granted petitioner's motion. Respondent appealed, and the Court of Appeals reviews the trial court's decision for error on the issue of whether threatened harm was "imminent". The Court held that while a conditional threat (the threatened harm was conditioned on reporting the contact) alone is not sufficient to satisfy the immediacy element for granting a stalking protective order (SPO), the context of the threat and other evidence can sufficiently establish an immediate threat for a court to grant an SPO. Affirmed.
[Summarized by: Nathan Holden]


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