[DV_listserv] Legal Update

[Domestic Violence issues]

Martinez is a drug case but the issues on appeal (admissibility of text messages and Adoptive Admissions) are relevant in a lot of DV cases:

State v. Martinez, 275 Or App 451, __ P3d __ (2015) (Malheur) (AAG Rolf
Moan).

"That is, as the state correctly points out, defendant's failure at trial to distinguish "clearly admissible" text messages from others
within the same exhibit may present a problem for defendant under State v. Brown, 310 Or 347, 800 P2d 259 (1990),
where the Supreme Court explained that, " '[w]hen evidence is offered as a whole and an objection is made to the evidence
as a whole and is overruled, the trial court will ordinarily not be reversed on appeal if any portion of the offered evidence was properly admissible,
despite the fact that other portions would not have been admissible had proper objections been made to such portions of the offered evidence.' "
Id. at 359 (quoting Sproul v. Fossi, 274 Or 749, 755, 548 P2d 970 (1976)). Thus, for example, where a defendant makes a general objection to
the trial court's admission of an entire 9-1-1 recording without differentiating between admissible and objectionable statements, and where a portion of the
recording is admissible, the defendant's challenge will fail. See State v. Garcia, 206 Or App 745, 750, 138 P3d 927 (2006)
("[I]f any one of [the victim's] statements contained on the tape recording satisfies a hearsay exception, we will uphold
the trial court's ruling on the admissibility of the tape recording."); State v. Hasson, 153 Or App 527, 531, 958 P2d
183 (1998). The same rule applies to exhibits. See Brown v. J.C. Penney Co., 297 Or 695, 705, 688 P2d 811 (1984). Cite as 275 Or App 451 (2015) 461
Consequently, if any one of the text messages contained in each of the state's exhibits was properly admitted, we must
affirm the trial court's ruling on the admissibility of that entire exhibit.

We first consider Exhibit 51 (the text message conversation between defendant and Ibarra), which the trial court allowed
under the "adoptive admission" rule set out in OEC 801(4)(b)(B). Again, that rule provides that a statement
made by another person is not hearsay if the statement is offered against a party who has manifested an adoption of the statement
or a belief in its truth. In State v. Carlson, 311 Or 201, 808 P2d 1002 (1991), the leading Oregon case
on adoptive admissions, the Supreme Court explained as follows:
"A party adopts the proffered statement of another person when that party's words or conduct indicate that [he or she]
intended to adopt the statement. A party manifests a belief in the truth of another's statement when the party intends
to embrace the truth of the statement, i.e., intends to agree with or approve the contents of the statement.  A mere
listening presence does not indicate that a party has manifested an adoption of or a belief in the truth of another
person's statement." Id. at 207 (citations and internal quotation marks omitted;
emphases and brackets in original). The Supreme Court noted that "[m]anifestation of an adoption or belief in the
truth of a hearsay statement of another may occur 'expressly, impliedly, by conduct or, in a civil case, by silence.' " Id.
(quoting State v. Severson, 298 Or 652, 657, 696 P2d 521 (1985))."
http://www.publications.ojd.state.or.us/docs/A152946.pdf

Physical Injury case: (From Appellate Division's Legal Update):

Victim's testimony that she felt a "sting" when defendant slapped her
was insufficient to support a finding of "physical injury."
State v. Johnson, 275 Or App 468, __ P3d __ (2015) (per curiam) (Multnomah)
(AAG Rebecca Auten). As a result of a domestic dispute, defendant was charged with,
among other offenses, fourth-degree assault for slapping the victim, ORS 163.160. At
trial, the victim testified that she felt "a sting" when he slapped her. He moved for a
judgment of acquittal on that charge, but the trial court (Judge Karin Immergut) denied
the motion.
Held: Assault conviction reversed; remanded for resentencing; otherwise affirmed.
Physical injury means substantial pain or impairment of a physical condition. The
victim's testimony that she felt a "sting" is "insufficient to support a finding of
substantial pain. Moreover, there is no evidence that the victim suffered any impairment
of her physical condition as a result of defendant's slap."
http://www.publications.ojd.state.or.us/docs/A151101.pdf

NOTE: **Defendant was convicted of 17 charges, specifically,
five counts of assault in the fourth degree, ORS 163.160; six
counts of harassment, ORS 166.065; three counts of coercion,
ORS 163.275; and one count each of sexual abuse in
the second degree, ORS 163.425, menacing, ORS 163.190,
and strangulation, ORS 163.187. All but the Harassment charges were charged using the "constituting DV" language.




Erin S. Greenawald
Sr. Assistant Attorney General | DA/LE Assistance| Criminal Justice Division
Oregon Department of Justice
2250 McGilchrist Street SE, Suite 100, Salem OR 97302
Main: 503.378.6347 | Desk: 503.934.2024 | Fax: 503.373.1937

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