March 18, 2015
STATE OF OREGON, Plaintiff-Respondent,
STEVEN RYAN RASCON, Defendant-Appellant
Submitted November 25, 2014.
Lane County Circuit Court. 201210732. Jay A. McAlpin, Judge.
Peter Gartlan, Chief Defender, and Erica Herb, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Tiffany Keast, Assistant Attorney General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and Flynn, Judge, and De Muniz, Senior Judge.
[269 Or.App. 845] LAGESEN, P. J.
Defendant appeals from a judgment entered after a jury convicted him of two counts of first-degree sodomy, ORS 163.405, and two counts of first-degree sexual abuse, ORS 163.427. Before trial, defendant moved to exclude a videotaped interview of the child victim conducted at the Kids' FIRST Center after the victim disclosed the abuse. Defendant argued that both ORS 136.420 and OEC 403 precluded the trial court from admitting the videotaped interview into evidence. The trial court denied the motion, reasoning that ORS 136.420 permitted the introduction of the videotape when the child victim would be testifying at trial and subject to cross-examination, and that the videotape was not unfairly prejudicial so as to require exclusion under OEC 403. On appeal, defendant assigns error to those rulings, as well as to the trial court's decision to send the videotape into the jury room during deliberations. We affirm.
We review for legal error the trial court's determination that ORS 136.420 did not require the exclusion of the videotaped interview. See State v. Gaines, 346 Or. 160, 171-72, 183, 206 P.3d 1042 (2009); PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993). That statute provides:
" In a criminal action, the testimony of a witness shall be given orally in the presence of the court and jury, except:
" (1) In the case of a witness whose testimony is taken by deposition by order of the court in pursuance of the consent of the parties, as provided in ORS 136.080 to 136.100;  or
" (2) As provided in ORS 131.045."
[269 Or.App. 846] Defendant argues that the victim's statements on the videotape constitute the " testimony of a witness" within the meaning of that statute, and, as a result, the admission of the videotape violated the statute's directive that testimony " be given orally in the presence of the court and jury." In response, the state asserts that the victim's statements on the videotape do not qualify as " testimony" within the meaning of the statute, because they were not made under oath, and, as a result, the statute has no bearing on the admissibility of the videotaped interview.
We need not resolve the parties' dispute over the word " testimony" in ORS 136.420. Even assuming that the victim's statements on the videotape qualify as " testimony" within the meaning of ORS 136.420, that statute, as interpreted by both the Supreme Court and our court, did not bar the admission of those out-of-court statements under the circumstances present here. Both we and the Supreme Court long have interpreted ORS 136.420
(and its predecessors) as a statutory confrontation right that is coextensive in scope with the confrontation clause of Article I, section 11, of the Oregon Constitution. See State v. Copeland, 353 Or. 816, 838, 838 n 10, 306 P.3d 610 (2013); State v. Crawley, 242 Or. 601, 603-06, 410 P.2d 1012 (1966); State ex rel. Gladden v. Lonergan, 201 Or. 163, 178-79, 269 P.2d 491 (1954); State v. Walton, 53 Or. 557, 563-65, 99 P 431 (1909); State v. Echeverria, 51 Or.App. 513, 517, 626 P.2d 897, rev den, 291 Or. 118, 631 P.2d 341 (1981).
So interpreted, the statute permits the introduction into evidence of out-of-court statements--even if such statements could be considered " testimony" within the meaning of ORS 136.420--under the same circumstances in which Article I, section 11, permits the introduction into evidence of out-of-court statements. See Crawley, 242 Or. at 603-06 [269 Or.App. 847] (where witness had passed away between the preliminary hearing and the defendant's criminal trial, and the trial court admitted the witness's former testimony into evidence, the defendant's rights were not violated, under either Article I, section 11, or former ORS 136.530, because the defendant had been afforded a prior opportunity to confront and cross-examine the witness); Walton, 53 Or. at 563-65 (where the defendant was granted a new trial but one witness had since passed away and another was beyond the jurisdiction of the trial court, the use of testimony from the defendant's previous trial did not violate Article I, section 11, or a precursor statute to ORS 136.420; the defendant's constitutional and statutory rights were adequately protected by his opportunity to cross-examine the witnesses in the prior trial); Echeverria, 51 Or.App. at 515-17 (deceased crime victim's out-of-court statements to police identifying property that had been stolen had sufficient indicia of trustworthiness to permit admission into evidence, notwithstanding the defendant's constitutional and statutory rights to confront witnesses). Put another way, under that line of authority, the introduction into evidence of out-of-court statements does not violate ORS 136.420 if the defendant's state constitutional confrontation rights are met.
Here, case law makes clear that the admission of the videotape comported with defendant's confrontation rights under Article I, section 11. That is because the victim testified at trial and was subject to cross-examination, and we have held that Article I, section 11, does not prohibit the introduction of a witness's otherwise admissible out-of-court statements where the witness testifies at trial and is subject to cross-examination. See State v. Barkley, 315 Or. 420, 431, 846 P.2d 390, cert den, 510 U.S. 837, 114 S.Ct. 116, 126 L.Ed.2d 81 (1993) (Article I, section 11, not violated by admission into evidence of videotaped interview of child sex abuse victim where victim testified under oath at trial and the defendant had the opportunity to cross-examine her about statements made on videotape and [269 Or.App. 848] in court); State v. Rumary, 173 Or.App. 219, 223-24, 21 P.3d 166 (2001) (Article I, section 11, not violated by admission of witness's otherwise admissible out-of-court statements provided that witness testifies at trial and is subject to cross-examination). We therefore conclude that
the admission of the videotape comported with defendant's statutory confrontation rights under ORS 136.420, in the light of the longstanding precedent treating that right as coextensive with the confrontation right under Article I, section 11.
Defendant next assigns error to the trial court's determination that OEC 403 did not preclude the admission of the videotaped interview. We have reviewed the videotape and conclude that the trial court did not abuse its discretion in concluding that the probative value of the tape was not substantially outweighed by the danger of unfair prejudice or other considerations. See State v. Brumwell, 350 Or. 93, 107, 249 P.3d 965 (2011), cert den, U.S. __, 132 S.Ct. 1028, 181 L.Ed.2d 757 (2012).
Finally, defendant assigns error to the trial court's decision to send the videotape into the jury room during deliberations, arguing that OEC 403 barred the court from doing so. Even if that argument is adequately preserved [269 Or.App. 849] (below, defendant relied primarily on ORCP 59 C, not OEC 403, to support his contention that the videotape should not be sent into the jury room), it is foreclosed by our decision in State v. Disney, 260 Or.App. 685, 686, 320 P.3d 639 (2014), in which we summarily rejected an identical argument that the trial court erred under OEC 403 " by allowing the jury to access the videotaped interview [of the child victim] during its deliberations."