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 ...