- Court: Oregon Court of Appeals
- Area(s) of Law: Appellate Procedure
- Date Filed: 07-31-2019
- Case #: A162537
- Judge(s)/Court Below: Hadlock, P.J. for the Court; DeHoog J.; & Aoyagi, J.
- Full Text Opinion
Defendant appealed from convictions of first-degree unlawful sexual penetration, attempted first-degree rape, misdemeanor fourth-degree assault, and felony fourth-degree assault constituting domestic violence. Defendant assigned error to both the trial court’s allowance of his counselor to testify about statements Defendant made in counseling and to the trial court's decision to not merge his convictions for misdemeanor fourth-degree assault and felony fourth-degree assault. On appeal, Defendant argued the testimony of his counselor on statements Defendant gave in counseling violated privacy privileges, making it a harmful error. Secondly, Defendant argued his own testimony could not be used in determining if the trial court committed a harmful error since it merely expanded on his counselor’s testimony. Lastly, Defendant argued because the elements of a misdemeanor fourth-degree assault charge are encompassed by felony fourth-degree assault, the two charges should be merged. In response, the State argued because both Defendant’s testimony and the statements he made in counseling were voluntary and constitutionally obtained, they may be used in determining if a harmful error occurred. The State agreed with Defendant’s argument for merging charges. In a harmless-error analysis, a defendant’s testimony may be considered if it was obtained voluntarily and in such a manner as to not violate “constitutional protections against compelled confessions.” State v. McGinnis, 335 Or 243, 252-53, 264 P3d 1123 (2003). The Court concluded, because Defendant voluntarily, in accordance with constitutional protections, disclosed the information in his counselor’s testimony to the court through other means, his own testimony could not be withheld from the harmful-error analysis. The Court ultimately held that allowing the counselor’s testimony was not a harmful error.
Reverse and remand to merge the charges, otherwise affirmed.