[DV_listserv] Legal Update

[Domestic Violence issues]

>From DOJ's Appellate Update:

TRIAL: Trial court properly precluded defense counsel from arguing that the jury
should disregard the victim's testimony because it was motivated by her fear of
DHS "taking" her children, because that motivation was too speculative.
State v. Manning, 290 Or App 846, __ P3d __ (2018) (Deschutes) (AAG Lauren
Robertson). During a birthday party at their home, defendant threatened his then-wife
with a knife. One of the children at the party reported the incident to someone at school,
who in turn reported it to DHS. In response to a DHS "cross-report" to police, a deputy
visited the victim's home and she disclosed defendant's attack. Defendant was charged
with unlawful use of a weapon, menacing, and recklessly endangering another person. At
trial, the deputy explained that DHS is required to create a "cross-report" any time
"information is given to DHS regarding something that [is] potentially a crime." During
cross-examination of the deputy, defense counsel did not ask whether the deputy told the
victim about the existence of the DHS report or whether he told her that he was there
because of the "cross-report." Nor did defense counsel ask the victim whether she was
aware of the DHS report. But defense counsel asserted during closing argument that the
victim's testimony was fueled by her fear about DHS "taking" her children and, thus, she
was biased against defendant. The prosecutor objected to that argument because it was
based on facts not in evidence. Defense counsel argued that the conclusion was a
reasonable inference. The trial court (Judge Beth Bagley) sustained the prosecutor's
objection. A jury found defendant guilty. On appeal, defendant argued that the trial
court erred by infringing on his federal and state constitutional rights to make a closing
argument to the jury.

Held: Affirmed (Tookey, P.J.). [1] "A trial court has the authority to prevent the
parties from arguing about matters outside of the record or based upon impermissible
speculation. Evidence outside of the record may not be suggested to the jury by any
means, including through closing argument." [2] The trial court properly precluded
defendant's argument because it was based on impermissible speculation. Defendant
never sought to impeach the victim's credibility on the basis that she was biased due to
her fears of DHS. Defendant also did not develop any testimony that the victim had any
knowledge of the DHS report. As a result, defendant attempted to prove the victim's bias
circumstantially by relying entirely on the deputy's knowledge of the DHS report. But-
without any evidence of what the victim knew or otherwise perceived concerning the
DHS report-defendant's argument requires the "stacking of inferences to the point of
speculation." See also State v. Bivins, 191 Or App 460 (2004) (explaining when an
inference is reasonable).
http://cdm17027.contentdm.oclc.org/cdm/ref/collection/p17027coll5/id/14813


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 | Cell: 503.932.7482


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