State v. Rascon

ORS 136.420 and OEC 403 do not preclude admission of videotaped out-of-court statements or testimony where the declarant testifies and is subject to cross-examination, satisfying the requirements of Article I, section 11, of the Oregon Constitution.

Defendant was convicted of multiple counts of first-degree sodomy and first-degree sexual abuse under ORS 163.405 and 163.427, respectively. Defendant moved to exclude a videotaped interview of the child victim conducted at the Kids’ FIRST Center, arguing that ORS 136.420 and OEC 403 precluded admission. The trial court denied Defendant’s motion and permitted the videotape at trial, where the victim would testify and be subject to cross-examination, and allowed the videotape into the jury room during deliberations. On appeal, Defendant renewed his argument. The Court held that the statute permits out-of-court statements, even those considered testimony, as long as they do not violate Article I, section 11, of the Oregon Constitution; the statements did not violate that provision because the victim testified and was subject to cross-examination. Defendant also argued on appeal that OEC 403 precluded admission of the videotape and allowance of the tape in the jury room. The Court held the trial court did not abuse its discretion in allowing the videotape in both instances. Affirmed.