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State v. Rainey

Court of Appeals of Oregon

October 3, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
ELIZABETH RYAN RAINEY, Defendant-Appellant.

          Argued and Submitted August 2, 2018

          Washington County Circuit Court D152828M; Eric Butterfeld, Judge.

          Sarah De La Cruz, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Ernest G. Lannet, Chief Defender, Offce of Public Defense Services.

          Michael Casper, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rebecca M. Auten, Assistant Attorney General.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and Landau, Senior Judge.

         Case Summary: Defendant appeals from a judgment of conviction for menacing, ORS 163.190. The evidence against her included a recording of threats she made to her neighbor during a conversation outside the neighbor's house, recorded on a cell phone located inside the neighbor's house. On appeal, defendant argues that the trial court erred in denying her motion to exclude the recording under ORS 165.540, which prohibits recording without consent, and that a statutory exception for recording conversations by persons "in their homes," ORS 165.540(3), applies only when conversations-not the recordings themselves- take place in the recorder's home. Held: The statutory exception to the prohibition against recording without consent applied when the act of recording occurred in the home. The trial court did not err in denying defendant's motion to exclude the recording of her conversation.

         Affirmed.

         [294 Or.App. 285] LANDAU, S.J.

         Defendant appeals a judgment of conviction for menacing. ORS 163.190. The evidence against her included a recording of threats that she made to her neighbor during a conversation outside the neighbor's house. The conversation was recorded on a cell phone from a window in the neighbor's house. Defendant moved to exclude the recording, arguing that the recording violated the statutory prohibition against obtaining conversations without the knowledge of all parties to the conversation. The trial court denied the motion. On appeal, defendant argues that the trial court erred in denying her motion to exclude the recording. The state argues that the trial court did not err, because the recording was subject to a statutory exception for obtaining conversations by certain persons "in their homes." ORS 165.540(3). Defendant replies that the exception applies only when conversations-not the recordings themselves-take place in the recorder's home. We agree with the state that the statutory exception to the prohibition against recording without consent applies when the act of recording occurs in the home, not when the conversation takes place there. Accordingly, the trial court did not err in denying defendant's motion, and we affirm.

         The relevant facts are not in dispute. Defendant lived next to Coleman and his stepsister, Quiros. Defendant and her neighbors had an ongoing dispute about the property line between their two homes. On one occasion, defendant and Coleman stood at the boundary between their homes and argued about the matter. Quiros, who was upstairs in a second-story bedroom at the time, heard "some commotion" coming from outside. She pointed her cell phone at the bedroom window and recorded the conversation between defendant and Coleman. During the conversation, defendant threatened to shoot Coleman. Neither defendant nor Coleman was aware that Quiros was recording the conversation.

         Defendant was charged with menacing, based on her threat to shoot Coleman. Before trial, defendant moved to exclude the recording of the conversation with Coleman. She argued that, because she had been unaware that Quiros [294 Or.App. 286] had recorded the conversation, the recording violated ORS 165.540(1), which prohibits "obtaining" the contents of a conversation without providing notice to all participants. And, because Quiros had recorded the conversation in violation of ORS 165.540(1), she argued, the recording was inadmissible under ORS 41.910(1), which provides that recordings made in violation of the law are not admissible evidence. The trial court questioned whether a face-to-face interaction qualified as the type of "conversation" that the statute protected. The state argued that, even if Quiros recorded a "conversation" within the meaning of ORS 165.540(1), the recording was lawful under an exception that applies when "subscribers or members of their family perform the acts prohibited" in that statute "in their homes." ORS 165.540(3). The trial court denied defendant's motion without explaining whether it did so because defendant's interaction with Coleman was not a "conversation" or because the recording of the interaction was permitted under the exception to the statutory prohibition.

         On appeal, defendant argues that her face-to-face interaction with Coleman amounted to a "conversation" within the meaning of ORS 165.540(1) and so could not lawfully be recorded without her knowledge. The state does not dispute that the interaction between defendant and Coleman was a "conversation" within the meaning of the statute. It argues instead that the recording was permissible under the "homeowner's exception" of ORS 165.540(3). In reply, defendant argues that "the homeowner's exception does not apply because the conversation occurred outside the home." According to defendant, the legislative history of what became ORS 165.540(3) reveals that the legislature intended the exception "to allow a subscriber to listen to or record communication that occurs on telephone lines within their own home." It follows, she argues, that the exception should also be limited to face-to-face conversations that occur in the home.

         The parties' arguments thus raise an issue of statutory construction: Does the exception in ORS 165.540(3) apply only when the recorded conversation occurs in the home or when the recording occurs in the home, regardless of where the conversation occurs? That issue we review as a [294 Or.App. 287] matter of law, in accordance with the interpretive principles set out in State v. Gaines,346 Or. 160, 169-72, 206 ...


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