[DV_listserv] Legal Updates

[Domestic Violence issues]

>From DOJ's Appellate Division:

EVIDENCE: Victim's out-of-court statements identifying defendant as the
perpetrator were admissible to impeach her testimony at trial, where she testified
that she made the statements but claimed they were lies, but they were not
admissible for substantive purposes.
State v. Burns, 287 Or App 459, __ P3d __ (2017) (per curiam) (Multnomah)
(AAIC Jamie Contreras). The victim called 911 to report that defendant, her husband, had
burglarized and damaged her house. She said the same thing to police when they arrived.
Defendant was charged with first-degree burglary and second-degree criminal mischief,
as well as witness tampering based on his calls to the victim from jail after he was
arrested. At trial, the victim recanted. In her testimony, she acknowledged that she had
made the statements in the 911 call identifying defendant, and that she had told an officer
that he was the perpetrator. But she claimed those statements were lies, and she blamed
defendant only because she was mad at him. The state offered the victim's out-of-court
statements as evidence, and defendant objected to their admission for their substantive
value, because they were hearsay, and therefore could be considered only as
impeachment. The trial court (Judge Edward Jones) disagreed, reasoning that the
statements were admissible for substantive purposes because the victim admitted that she
had made the out-of-court statements, and instructed the jury accordingly. The jury
found defendant guilty.
Held: Burglary and criminal mischief convictions reversed and remanded;
criminal mischief remanded for resentencing; otherwise affirmed. The victim's
statements were admissible only for impeachment, and not as substantive evidence; the
trial court erred in instructing the jury otherwise. But the error was harmless with respect
to the witness tampering charge.
http://www.publications.ojd.state.or.us/docs/A160727.pdf

Note: Had the victim admitted that she made the statements and said nothing
more, the statements would have been admissible for all purposes. But because
she further testified that her out-of-court statements were untrue, they were
inadmissible under OEC 801(4)(a), because they were not "given under oath
subject to the penalty of perjury at trial, hearing, or other proceeding[.]" OEC
801(4)(a).

CONTEMPT: In prosecution for contempt for violation of a restraining order,
evidence sufficed to prove that defendant "willfully" violated the order, despite his
claim that he thought he had permission to enter the victim's residence.
State v. Beleke, 287 Or App 417, __ P3d __ (2017) (Lane) (AAG Shannon Reel).
Defendant injured his wife during a domestic dispute, and she obtained a restraining
order which prohibited him from, among other things, entering or attempting to enter her
(their) residence. Defendant pleaded guilty to crimes against his wife and, at sentencing,
the trial court imposed special probation conditions requiring him to obey the restraining
order and to obtain prior written permission from his probation officer before going
within 1,000 feet of her residence. The court also specifically ordered defendant to
comply with the restraining order. After he was released from custody, he met with an
intake officer at the probation department who was not his probation officer and had no
information about his case. Defendant did not inform the officer about the restraining
order. The officer asked for defendant's address, and he gave the victim's address. The
officer asked if the victim lived there and defendant replied, "Well, no, I live there.
That's my house." The officer told him he had to stay at The Mission, which was his
only approved residence, unless the victim did not live at that address. That evening, the
police found defendant inside the victim's apartment, and he acknowledged that there
was a restraining order against him and that he knew it prohibited him from being in the
apartment. He was charged with contempt. At trial, he moved for a judgment of
acquittal, contending that the state failed to prove that he acted "willfully with bad intent"
because he believed that the probation officer had given him permission to be in the
apartment. The trial court (Judge Maurice Merten) denied the motion. On appeal,
defendant repeated his claims that the state failed to prove willfulness, because the
"various court orders and probation conditions and directives that defendant was under
were confusing and inconsistent, and led defendant into a trap despite his good faith
effort to comply" and that he had permission from the probation officer to be in the
apartment.
Held: Affirmed (Garrett, J). [1] To prove contempt, the state must establish the
existence of a valid court order, the defendant's knowledge of that order, and the
defendant's willful noncompliance with that order. The term "willfully" means
"intentionally and with knowledge that [the act or omission] was forbidden conduct."
[2] The evidence was sufficient to prove that defendant understood at the time of the
sentencing hearing that he remained bound by the restraining order "because he was
expressly told so." [3] His reliance on the probation officer's "permission" is also
unavailing because he failed to disclose the existence of the restraining order and lied
about whether the victim lived at the apartment. A rational trier of fact could infer that
defendant understood that he remained subject to the restraining order or, in the
alternative, that he had not obtained genuine "permission" to enter the a apartment.
http://www.publications.ojd.state.or.us/docs/A160038.pdf

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