State v. Avdeyev

A witness may not call a complaint witness a victim because it “may undermine the presumption of defendant’s innocence because it assumes defendant’s guilt.” State v. Sperou, 365 Or 121, 133, 442 P3d 581 (2019). However, a prosecutor using the term “victim” in reference to a complaining witness is allowed only in appropriate contexts, or “the trial court has the discretion to fashion an appropriate remedy, ‘subject to the defendant’s right to a fair trial'” if the usage is improper. Id. at 136.

Defendant was convicted on 20 counts but only 2 were by unanimous verdict, and 18 were by nonunimaous verdict.  He appealed convictions on all counts. Due to the decision in Ramos v.  Louisiana, 590 US  ___,  140  S  Ct  1390, 206 L Ed 2d 583 (2020), the Court overturned the 18 nonunimaous counts, and only addressed the remaining two counts. On the other two counts Defendant assigned error to a denial of a pretrial motion that prevent the State from using the word “victim” in reference to witnesses that filed complaints against the Defendant. In the remaining two counts, the Defendant argued allowing the State and their witnesses to use the word “victim” it would subvert his the presumption of innocence and constitute improper vouching. The State contended that the usage of the term “victim” should be allowed because they are “seeking to prove that defendant victimized the complaining witnesses.” A witness may not call a complaint witness a victim because it “may undermine the presumption of defendant’s innocence because it assumes defendant’s guilt.” State v. Sperou, 365 Or 121, 133, 442 P3d 581 (2019). However, a prosecutor using the term “victim” in reference to a complaining witness is allowed only in appropriate context’s, or “the trial court has discretion to fashion an appropriate remedy, ‘subject to the defendant’s right to a fair trial’” if the usage is improper. Id. at 136. The Court found that the trial court erred by denying the pretrial motion and allowing witnesses to use the term “victim” but that the “the state may use the words ‘victim’ and ‘disclosure’ during opening and closing statements.” Additionally, the Court found that “the trial court’s error was not harmless based on the witness testimony.” In   case   numbers   15CR56120   and   15CR55011,  reversed and remanded.