[DV_listserv] Legal Update

[Domestic Violence issues]

>From DOJ's Appellate Update:

EVIDENCE-IMPEACHMENT: In prosecution for domestic assault, the trial court
properly precluded defendant from impeaching the victim with evidence of a prior
allegedly false accusation against him.
State v. Taylor, 275 Or App 962, __ P3d __ (2015) (Washington) (AIC Jennifer
Lloyd). Based on an incident of domestic abuse, defendant was charged with fourth degree
assault. At trial, defendant sought to cross-examine the victim (his wife) with
information in a police officer's handwritten "application for 72-hour detention for
evaluation and treatment." That document indicated that the victim had accused
defendant of assaulting her and pushing her into a window, but that the responding
officers had seen a broken window but no evidence of any marks or injuries. The
application contained the officer's conclusion that "there was no fight." Following the
incident, no arrest was made and the victim was taken to a hospital for a mental-health
evaluation and treatment. Defendant claimed that he should be entitled to impeach the
victim with the prior accusation under State v. LeClair, 83 Or App 121 (1986), which
held that Art. I, § 11, allows a defendant to cross-examine a victim about other
accusations in three circumstances: (1) when the victim has recanted the accusations;
(2) when the defendant demonstrates to the court that those accusations were false; or
(3) there is some evidence that the victim has made prior accusations that were false,
unless the probative value of the impeachment is substantially outweighed by the risk of
prejudice, confusion, embarrassment or delay. Defendant did not argue that the victim
had recanted, but he argued that the officer's application was evidence that the prior
accusations were false. The trial court (Judge James Fun) concluded that, although the
application constituted some evidence that the accusation was false, the court was not
convinced that the accusation was false. The court then excluded the evidence after
weighing the probative value against the possible prejudice from the impeachment and
concluded that the evidence would "not be helpful to the jury" because it would "ask the
jury to decide the truth or falsity of the occurrence of the prior events" based on no
evidence other than the application. Defendant was convicted at trial, and appealed.

Held: Affirmed (Hadlock, J.). [1] Although the evidence does not fit the first or
second LeClair category-viz., that the victim recanted or that the defendant has proved
the falsity of the accusation-it does fit the third: the application by the officer
constituted some evidence that the victim had made a prior false accusation against
defendant. [2] In order to admit such evidence, the court must balance the probative
value against the risk of prejudice. The court did so here, and its evaluation was not an
abuse of discretion: it was entitled to exclude the evidence based on its conclusion that it
would create an "unhelpful trial within a trial." Moreover, because the prior incident
occurred out of state and the officer witnesses were not present at trial, and because
defendant was the only other witness to the events and could not be compelled to testify,
the court reasonably could conclude that the risk of prejudice would outweigh the
probative value of the impeachment evidence.
http://www.publications.ojd.state.or.us/docs/A154655.pdf

TAMPERING: Evidence did not support a reasonable inference that defendant
intended to induce a witness to withhold testimony at an official proceeding.
State v. Williams, 275 Or App 752, __ P3d __ (2015) (Clatsop) (AAIC Jamie
Contreras). Defendant was the director of the Commercial Fisherman's Festival (CFF) in
Astoria. During a dispute over pay, defendant resigned his position, withdrew money
from CFF's bank accounts, and took property that belonged to CFF and its sponsors. He
then talked about what he'd done on Facebook. Defendant and a member of the CFF
board, Elizabeth McMaster, started sniping at each other on Facebook. CFF eventually
complained to police about the thefts, and police obtained a warrant, with Elizabeth
McMaster's help in identifying items that defendant had stolen. They executed the
warrant for defendant's home and vehicles, taking numerous pieces of CFF property.
Two weeks later, defendant approached Elizabeth's husband Kenneth, who was also a
member of the CFF board. Defendant told Kenneth that the "sh*t talking" had to stop,
and "[i]f you don't stop the sh*t talking, if it doesn't stop, I will burn down your f*cking
house." Defendant was charged with witness tampering, ORS 162.285, based on that
statement, as well as theft. He moved for a judgment of acquittal on the tampering
charges, arguing that the state failed to prove that he intended to induce the McMasters
not to testify at an official proceeding. The trial court (Judge Philip Nelson) denied the
motion. The jury acquitted defendant of tampering with respect to Elizabeth, but found
him guilty of tampering with respect to Kenneth, as well as the thefts.

Held: Witness tampering count reversed; remanded for resentencing; otherwise
affirmed (Sercombe, P.J.). The trial court should have granted defendant's motion for
judgment of acquittal. [1] As pertinent here, a person tampers with a witness if he
knowingly attempts to induce a person from unlawfully withholding testimony in an
official proceeding. ORS 162.285(1)(a). The evidence must support an inference that the
defendant "specifically and reasonably believes that the victim will be called to testify at
an official proceeding." State v. Bailey, 346 Or 551, 565 (2009). [2] Here, the evidence
did not permit a rational trier of fact to infer that defendant intended to induce Kenneth to
withhold testimony in an official proceeding. Nothing in the evidence permitted an
inference that defendant believed that Kenneth had special knowledge about the thefts
that could lead him to be called as a witness, or that his threat was an attempt to induce
Kenneth not to testify in an official proceeding.
http://www.publications.ojd.state.or.us/docs/A154262.pdf


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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