State v. Evensen

“The prohibitions in [ORS 165.540(1)(a)-(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 convicting him of first-degree sexual abuse and attempted first-degree sexual abuse. Defendant assigned error to the trial court’s decision to admit the testimony of a detective regarding the suggestibility of children and a secretly-recorded video of a conversation between Defendant and the alleged victim. On appeal, Defendant argued the detective’s testimony was scientifically based and required expert qualification, which the detective was not. Additionally, Defendant argued the recording was inadmissible under ORS 41.910, which prohibits the admission of recordings made secretly, meaning it was in violation of ORS 165.540(1)(c). In response, the State argued the recording fell under the “homeowner’s exception,” pursuant to ORS 165.540(3). “The prohibitions in [ORS 165.540(1)(a)-(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). Admitting the seeming arbitrariness of the statute, the Court held “subscribers” means any person who subscribes to a phone or radio service, including Defendant and because the recording was made by Defendant’s niece, it fell under the homeowner’s exception and was admissible.

Affirmed.