[DV_listserv] Legal Updates

[Domestic Violence issues]

>From DOJ's Appellate Division's updates:

**This first case isn't DV-related but it's important in terms of how critical 403 balancing has become when arguing Other Acts motions in DV/SA cases. As you see from the "notes" section, DOJ plans to petition for review.

EVIDENCE-OEC 403: Because the record did not reflect that trial court had
engaged in OEC 403 balancing before admitting evidence, the case had to be
remanded.
State v. Anderson, 282 Or App 24, __ P3d __ (2016) (Lincoln) (AAG Shannon
Reel). Defendant stole an ATM card from a woman in whose home he was staying and
used it to withdraw funds from her bank account. He was charged with identity theft and
second-degree theft. At trial, the state introduced into evidence photographs and a video
of defendant using the ATM, in which he attempted to hide his face. The state also
introduced a video of him being booked at the police station, in order to show that he was
wearing the same or similar clothing as he wore in the ATM video. Defendant objected
to the admission of the booking video, contending that it was unduly prejudicial. The
trial court (Judge Thomas Branford) watched the video "to decide the balancing issues,"
overruled the objection, and admitted the evidence, saying "it's relevant." Defendant
was found guilty.
Held: Reversed and remanded (Flynn, J.). [1] Under OEC 403, relevant evidence
may be excluded if its "probative value is substantially outweighed by the danger of
unfair prejudice." [2] The trial court was required to demonstrate that it exercised its
discretion by balancing the probative value of the video against the danger of unfair
prejudice. See State v. Mayfield, 302 Or 631 (1987). [3] The record does not reflect that
the trial court had engaged in the required balancing where, in response to defendant's
objection, the court ruled that it was admitting the video because "it's relevant." The
court found that the record failed to reflect that the trial court had assessed the "quantum
of probative value" of the evidence or the extent to which the video might improperly
bias the jury. Thus, the trial court erred in admitting the evidence. [4] The error was not
harmless.
http://www.publications.ojd.state.or.us/docs/A155404.pdf

Notes: [a] Judge DeVore dissented. He would have found that the record sufficed
to show that the trial court implicitly exercised its discretion to determine that the
probative value outweighed its prejudice. The dissent contends that the majority ignored the context of the parties' arguments
regarding the relevance versus the prejudicial effect of the video, and also incorrectly discounts the trial
court's statement that it wanted to watch the video twice to help it "decide the balancing issues." [b] The state intends to
petition for review in this case.

CONTEMPT: Where trial court found that defendant had good-faith belief that
restraining order had been lifted, it erred by finding her in contempt for "willfully"
violating the order under ORS 33.015(2)(b).
State v. Nicholson, 282 Or App 51, __ P3d __ (2016) (Douglas) (AAG Robert
Wilsey). Defendant was charged with contempt, ORS 33.015(2)(b), for violating a
Family Abuse Protective Act (FAPA) restraining order. At trial, she argued that because
the protected party, her husband, had told her by phone that he was at the courthouse
having the order lifted, her subsequent contact with him was not a "willful" violation of
the order because she had a good-faith belief that the order had been lifted. In its findings
of fact, the trial court (Judge Frances Burge) expressly credited defendant's statement
that she believed what her husband had told her.
Held: Reversed (Haselton, S.J.). [1] A defendant who acts based on a good-faith
belief that a judicial order has been dismissed cannot be deemed to have "willfully"
violated that order, for purposes of ORS 33.015(2)(b). [2] Because the trial court
expressly had found that defendant had a good-faith belief the restraining order had been
lifted, the trial court erred by finding that she had "willfully" violated the order.
http://www.publications.ojd.state.or.us/docs/A158526.pdf

SENTENCING-CONDITIONS OF CONFINEMENT: Trial court lacked authority to
impose no-contact order as a condition of incarceration or post-prison supervision.
State v. Hall, 282 Or App 9, __ P3d __ (2016) (Clatsop) (AAG Keith Kutler).
Defendant assaulted the victim, his girlfriend. The sentencing court (Judge Cindee
Matyas) imposed a no-contact order as a condition of incarceration or post-prison
supervision; defendant did not object.

Held: Reversed and remanded for entry of a corrected judgment; otherwise
affirmed (Duncan, P.J.). The sentencing court plainly erred by imposing the no-contact
provision. See State v. Langmayer, 239 Or App 600, 601 (2010) (trial courts lack
authority to impose conditions of incarceration); State v. Reed, 235 Or App 470, 474
(2010) (trial courts lack authority to impose conditions of post-prison supervision).
http://www.publications.ojd.state.or.us/docs/A158198.pdf




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