State v. Rainey

“The prohibitions in subsection (1)(a), (b), or (c) do not apply to subscribers or members of their family who perform the acts prohibited in subsection (1) of this section in their homes.” ORS 165.540(3).

Defendant appealed a judgment of conviction for menacing. Defendant assigned error to the trial courts admittance into evidence a video recording of her making threats to her neighbor. On appeal, Defendant argued that her face-to-face interaction with her neighbor amounted to a “conversation” within the meaning of ORS 164.540(1) and so it could not lawfully be recorded without her knowledge. In response, the State argued that the recording was permissible under the “homeowner’s exception” of ORS 165.540(3). In addition, Defendant argued that the “homeowner’s exception did not apply because the conversation occurred outside the home.” “The prohibitions in subsection (1)(a), (b), or (c) do not apply to subscribers or members of their family who perform the acts prohibited in subsection (1) of this section in their homes.” ORS 165.540(3). The Court of Appeals found that nothing in the wording of ORS 165.540(3) could be plausibly read to state an exception based on where the conversation itself takes place, and therefore, it held 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. Affirmed.