Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Plueard

Court of Appeals of Oregon

May 22, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
JAMESON COLE PLUEARD, Defendant-Appellant.

          Washington County Circuit Court C142372CR; Suzanne Upton, Judge.

         On appellant's petition for reconsideration fled April 3, 2019, and respondent's response to petition for reconsideration fled April 10, 2019.Opinion fled March 20, 2019. 296 Or.App. 580 ___, P.3d ___.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Andrew D. Robinson, Deputy Public Defender, Offce of Public Defense Services, for petition.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jordan R. Silk, Assistant Attorney General, for response.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary: Defendant seeks reconsideration of the Court of Appeals opinion in State v. Plueard, 292 Or.App. 580, P.3d (2019), in which the court reversed and remanded based on a determination that the trial court erred when it admitted certain evidence about "grooming" and that the error was not harmless. Defendant asks the court to delete from the opinion footnote one, in which the court suggested that if the trial court determined on remand "that the evidence was, after all, admissible," a new trial would not be necessary. Id. at 582 n 1. Defendant contends that the footnote was overly directive. Held: The court allowed the petition for reconsideration and deleted footnote one from the opinion. The footnote was too limiting because it foreclosed the possibility that the trial court would determine that a new trial still is necessary, even if it ultimately determines on remand that the evidence at issue was admissible. It was also surplus age, as the court's use of the "[r]eversed and remanded" tag line was [297 Or.App. 593] sufficient to signal to the trial court that it would have authority to determine the necessary or appropriate proceedings on remand.

         Reconsideration allowed; former opinion modified and adhered to as modified.

         [297 Or.App. 594] HADLOCK, P. J.

         Defendant seeks reconsideration of our opinion in State v. Plueard, 296 Or.App. 580, P.3d(2019), in which we reversed and remanded based on our determination that the trial court erred when it admitted certain evidence about "grooming" and that the error was not harmless. In his petition for reconsideration, defendant asks us to delete footnote 1 from the opinion. That footnote states:

"When the Supreme Court remanded for further proceedings in [State v. Henley, 363 Or. 284, 422 P.3d 217 (2018)], it suggested that the parties might-on remand- develop 'the evidentiary record concerning admissibility' of the proffered grooming evidence and that the trial court could then determine, in the first instance, whether the state had established the scientific validity of that evidence. It appears that, under Henley, the trial court has that option in this case on remand. If it determines that the evidence was, after all, admissible, then no new trial will be necessary."

Plueard, 296 Or.App. at 582 n 1. Defendant challenges that footnote on several grounds. With the following exception, we reject those arguments without discussion.

         We grant reconsideration, however, to address one argument that defendant makes in his petition. Reduced to its essence, that argument is that we were overly directive in the last sentence of the quoted footnote. Defendant relies on State v. Baughman, 361 Or. 386, 411, 393 P.3d 1132 (2017), in which the Supreme Court reversed and remanded because the trial court had erred in determining the purpose for which certain other-acts evidence could be admitted, undermining the soundness of its balancing determining under OEC 403. The Supreme Court explained that, on remand, the state would "be entitled to make new arguments about the purposes, if any, for which [that] evidence is relevant," and the trial court could then conduct a new OEC 403 analysis. The court further explained that a new trial might be necessary, whether or not the trial court again ruled the evidence admissible, "to allow the parties to make new arguments, and the court to give new instructions, to the jury," given the possibility that the evidence would be admitted for [297 Or.App. 595] a different reason on remand than it was originally. 361 Or at 411. Because the trial court would be "in the best position to assess the need for a new trial after it * * * determined the purposes for which the challenged evidence [was] relevant," the Supreme Court "[left] it to the trial court to determine the nature of the proceedings that are necessary or appropriate on remand." Id.

         Defendant contends that, under Baughman, we erred by stating that "no new trial will be necessary" in this case if the trial court determines, on remand, that the grooming evidence was admissible. In response, the state asserts that it is much less likely here that a new trial will still be needed if, on remand, the state is able to lay an adequate foundation for the challenged grooming evidence because, unlike in Baughman, the purpose for which that evidence was offered will not have changed. The state acknowledges, however, "that the question whether a new trial is necessary will ultimately be one for the trial court to resolve after it reconsiders the foundational admissibility of the challenged evidence on remand." (Emphasis in state's brief.)

         The state may be correct that it is less likely here than in Baughman that the trial court will determine that a new trial still is necessary, even if it ultimately determines on remand that the evidence at issue (here, the grooming evidence) was admissible. Nonetheless, we agree with defendant that we should not have foreclosed that ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.