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State v. McMullin

Court of Appeals of Oregon

March 18, 2015

STATE OF OREGON, Plaintiff-Respondent,
v.
KEITH ALLEN McMULLIN, Defendant-Appellant

Submitted December 15, 2014.

Clackamas County Circuit Court CR1200400. Jeffrey S. Jones, Judge.

Peter Gartlan, Chief Defender, and Lindsey K. Detweiler, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the brief for respondent.

Before Lagesen, Presiding Judge, and Flynn, Judge, and De Muniz, Senior Judge.

OPINION

Page 612

[269 Or.App. 860] LAGESEN, P. J.

Defendant appeals from a judgment entered after a jury convicted him of 10 counts of rape in the first degree, ORS 163.375, two counts of sodomy in the first degree, ORS 163.405, and 10 counts of sexual abuse in the first degree, ORS 163.427. On appeal, defendant assigns error to, among other things, the trial court's denial of his motion to exclude a videotaped interview of the child victim conducted at the Children's Center and its imposition of a sentence pursuant to Ballot Measure 73 (2010) on two of the counts against him. We affirm.

With respect to his first assignment of error, defendant contends that ORS 136.420[1] precluded the trial court from admitting the videotaped interview into evidence.[2] He asserts that, because the victim's statements on the videotape constitute the " testimony of a witness" within the meaning of ORS 136.420, the admission of the videotape violated the statute's directive that testimony " be given orally in the presence of the court and jury."

But, as we observed in State v. Rascon, 269 Or.App. 884, , 346 P.3d 601 (2015), ORS 136.420 has long been [269 Or.App. 861] interpreted as a statutory confrontation right that is " coextensive in scope" with Article I, section 11, of the Oregon Constitution.[3] Accordingly, ORS 136.420 is not violated by the introduction into evidence of out-of-court statements, so long as a defendant's state constitutional confrontation rights are met. Rascon, 269 Or.App. at . Here, it is undisputed that admission of the videotape satisfied Article I, section 11, because the victim testified at trial and was subject to cross-examination. We therefore reject defendant's first assignment of error.[4]

Page 613

Defendant's second and third assignments of error concern the constitutionality of Measure 73,[5] an initiative [269 Or.App. 862] petition that was passed by the voters in 2010, and created enhanced penalties for some repeat sex offenders and intoxicated drivers. Defendant was convicted of two counts of first-degree rape that occurred after the effective date of Measure 73, and, pursuant to section 2 of that measure, codified at ORS 137.690, he received a mandatory sentence of 300 months of incarceration to run concurrently on those two counts. Defendant challenges the application of Measure 73 to his case, contending that the measure was submitted to the voters for their approval in violation of the single-subject requirement of Article IV, section 1(2)(d), of the Oregon Constitution.[6] Specifically, defendant argues that Measure 73 runs afoul of Article IV, section 1(2)(d), because it impermissibly addresses two subjects: (1) the imposition of mandatory minimum sentences of 25 years for major felony sex crimes for second-time offenders, and (2) the creation of a new crime of felony DUII for third-time offenders, subject to a mandatory minimum term of incarceration of 90 days.

We rejected an identical challenge in State v. Mercer, 269 Or.App. 135, 140, 344 P.3d 109 (2015), in which we concluded that the unifying principle that connects the different provisions of Measure 73 is " enhanced punishments for offenders repeatedly convicted of specified crimes." (Internal quotation marks omitted.) See State ex rel Caleb v. Beesley, 326 Or. 83, 91, 949 P.2d 724 (1997) (measure embraces a single subject if the reviewing court can discern a " unifying principle logically connecting all provisions" in the measure). Because we have already held that Measure 73 was not adopted in violation of the single-subject requirement of Article IV, section 1(2)(d), we reject defendant's second and third assignments of error.

We reject defendant's remaining assignments of error without discussion.

Affirmed.


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