State v. Deck

• Decision Date: 15 April 1987
• Citation: 84 Or.App. 725,735 P.2d 637
• Parties: STATE of Oregon, Respondent, v. Clifford Phillip DECK, Appellant. B66-524; CA A36764. Court of Appeals of Oregon, In Banc. *
• Court: Oregon Court of Appeals

Page 637

735 P.2d 637

84 Or.App. 725

STATE of Oregon, Respondent, v. Clifford Phillip DECK, Appellant.

B66-524; CA A36764.

Court of Appeals of Oregon,

In Banc. ^*

Argued and Submitted Jan. 24, 1986.

Resubmitted In Banc March 12, 1987.

Decided April 15, 1987.

Robert C. Homan, Eugene, argued the cause and filed the brief for appellant.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

NEWMAN, Judge.

Defendant appeals his conviction for sexual abuse in the second degree, a Class A misdemeanor. ORS 163.415. ¹ He argues that the court erred in denying his motion for judgment of acquittal, in improperly instructing the jury and in admitting hearsay evidence at sentencing. We affirm the conviction but vacate the sentence and remand for resentencing.

On October 1, 1984, the victim's mother called the police and informed them that her daughter, age 13, had told her that she had been sexually abused by defendant on March 9, 1984. Defendant was arrested and charged with sexual abuse in the second degree. At trial, the victim testified that she had babysat for defendant and his wife on March 8, 1984. She had stayed overnight at their residence and had slept with their daughter that night. She testified that she was awakened during the middle of the night by someone with a hand on her breast. She stated that she had recognized the person as defendant, that he had asked her how the children behaved that evening and that he had then left the room. She further testified that she did not scream or cry and that she stayed the rest of the night.

Defendant testified that he and his wife went out that evening to celebrate his wife's birthday, that when they got home he went upstairs to check on the children, that he tucked the bedcovers around the victim and his daughter and that he did not touch the victim's breast.

After defendant was convicted, the court held a sentencing hearing. ORS 137.080. ² No report of a presentence investigation was ordered or offered. See ORS 137.090; ORS 137.530. At the hearing, the state called the victim as a witness in aggravation of the sentence. ³ The court also considered that the state had called the victim for that purpose. ⁴ The victim testified, over objection, that defendant's daughter had told her that she, too, had been abused by defendant. ⁵ The state urged the court to give defendant the maximum sentence of one year in jail. The court suspended imposition of sentence for three years and placed defendant on probation under specified conditions, including confinement in jail for 60 days.

In defendant's first two assignments, he asserts that the court's denial of his motion for judgment of acquittal and its jury instruction on inferences were erroneous. These assignments are not well taken and do not merit discussion.

Defendant's third assignment is that the court erred in allowing the victim, over his objection, to testify about his daughter's statements. He first argues that the testimony is inadmissible hearsay. The state responds that the rules of evidence governing hearsay do not apply to sentencing and that, therefore, the court properly admitted the testimony. It relies on OEC 101(4), which provides:

"Rules 100 to 412 and Rules 601 to 1008 of the Act [which include the rules concerning hearsay] do not apply in the following situations:

" * * *

(d) Sentencing, except as required by ORS 137.090."

ORS 137.090 provides:

"The circumstances which are alleged to justify aggravation or mitigation of the punishment shall be presented by the testimony of witnesses examined in open court, except that when a witness is so sick or infirm as to be unable to attend, his deposition may be taken out of court at such time and place, and before such person authorized to take depositions, as the court directs. The court may consider the report of presentence investigation conducted by probation officers pursuant to ORS 137.530 or any other person designated by the court."

To that argument, defendant replies:

"The only possible conclusion which can be reached by reading OEC 101(4)(d) together with ORS 137.090 is that the only admissible hearsay at sentencing is that contained in the presentence investigation. All other evidence in aggravation or mitigation must be presented by witnesses in open court and those witnesses must necessarily testify only to first-hand information."

The state does not argue that ORS 137.090 is inapplicable. It urges, however, that, although ORS 137.090 requires that evidence of aggravating circumstances not contained in the presentence report be presented by live witnesses examined in open court, it does not state that they may not give hearsay testimony.

The state's interpretation is based on the Legislative Commentary to OEC 101(4)(d):

"This paragraph exempts sentencing from the rules of evidence and directs attention instead to the statute that specifically governs sentencing procedure. ORS 137.090. Early case law based upon the statute would imply that the state can prove any aggravating circumstance by unsworn statements. Coffman v. Gladden, 229 Or 99, 366 P2d 171 (1961). This case was decided before the institution of presentence reports. Since then, ORS 137.090 has been interpreted as requiring the sentencing court to take the testimony of witnesses when considering any aggravating information that is not contained in the presentence report, if the defendant requests. State v. Collins, 43 Or App 265 (1979); State v. Brown, 44 Or.App. 597 (1980). A remaining issue is whether witnesses who are sworn are restricted to giving testimony subject to the rules of evidence. State v. McKinney, 7 Or App 248, 489 P2d 976 (1971). As an investigator can put hearsay evidence in a presentence report, State v. Scott, 237 Or 390, 390 P2d 328 (1964), it seems pointless to prevent a witness under oath from saying the same thing. However, it can be argued that a trained probation officer is able to eliminate untrustworthy hearsay and bring to the court's attention only hearsay that is reliable and valuable for its legitimate use. The Legislative Assembly considers judges capable of determining the reliability of hearsay evidence, and agrees that it is pointless to assign different values to the same hearsay depending upon the manner in which it is presented to the court." Commentary to Oregon Evidence Code 35 (Butterworth 1981). (Emphasis supplied.)

See also Kirkpatrick, Oregon Evidence 8 (1982). In State v. McClure, 298 Or. 336, 344, 692 P.2d 579 (1984), however, the court stated:

"It must be remembered that the commentary is not an official part of the Oregon Evidence Code and was not approved by the entire legislature. Of course it provides highly useful background regarding each rule and guidance to courts and attorneys in interpreting these rules, but the commentary is not controlling upon this or any other court."

In considering the different interpretations, we note that, under some circumstances, the court has allowed admission of hearsay evidence at sentencing, State v. Scott, 237 Or. 390, 390 P.2d 328 (1964) (arrest record contained in a presentence investigation report); Coffman v. Gladden, 229 Or. 99, 366 P.2d 171 (1961) (unsworn statements about defendant's prior criminal record); Barber v. Gladden, 228 Or. 140, 363 P.2d 771 (1961) (unsworn statement that defendant had threatened to kill his accomplices if they testified against him); Admire v. Gladden, 227 Or. 370, 375, 362 P.2d 380 (1961), cert. den., 368 U.S. 971, 82 S.Ct. 449, 7 L.Ed.2d 400 (1962) (psychiatric report containing "matters connected with the commission of [the crime charged]").

State v. Scott, supra, however, does not resolve the issue here, because ORS 137.090 specifically provides for the use of presentence investigation reports. Coffman, Barber and Admire are also not controlling. Each involved post-conviction challenges to sentencing proceedings. In Admire, the court did not discuss ORS 137.090. There, the defendant claimed that consideration of a psychiatric report denied him due process. In Barber, although the defendant argued that ORS 137.090 prohibited consideration of an unsworn statement made by the attorney for the defendant's accomplices that the defendant had threatened to kill them, the court affirmed, because the defendant failed to request a sentencing hearing and had not objected to the attorney's statement at the time it was made. Coffman also held that it was not error for the trial court to consider unsworn statements about the defendant's prior record when the defendant had neither requested a hearing nor objected to the statements. 229 Or. at 99, 366 P.2d 171. Here, the state does not contend that defendant failed to request a hearing or to object to the victim's testimony. See State v. Collins, 43 Or.App. 265, 602 P.2d 1081 (1979).

In State v. McKinney, 7 Or.App. 248, 489 P.2d 976 (1972), the defendant objected to the trial court's consideration of a police officer's hearsay testimony at the sentencing hearing that the defendant had sold drugs to juveniles. The testimony implicated the defendant in criminal activity for which the record did not disclose that he had ever been charged or tried. The defendant asserted that, because of that testimony, he received the maximum sentence. We stated, however, that "[a] reading of ORS 137.080 et seq., leaves open the question whether witnesses called at a sentence hearing are restricted to giving testimony subject to the rules of evidence." 7 Or.App. at 250, 489 P.2d 976. We implied that it was error to admit that evidence but stated that the testimony of the police officer was "merely cumulative and harmless under the circumstances," 7 Or.App. at 250, 489 P.2d 976, because the evidence was properly before the court in the presentence report and the police officer's testimony was...