State v. Brown

690 P.2d 1117, 70 Or. App. 707, 1984 Ore. App. LEXIS 4599

• Court: Court of Appeals of Oregon
• Decided: November 7, 1984
• Docket: 472720; CA A31578
• Status: Published

Opinion

PER CURIAM

Defendant was convicted of sexual abuse in the second degree. At trial, the state offered a concededly voluntary statement defendant made after his arrest describing the incident and a variety of unrelated sexual experiences and fantasies. Defendant, albeit inartfully, objected to admission of the whole statement, because the portions describing his deviant sexual experiences were irrelevant or more prejudicial than probative. The trial court refused to consider defendant’s argument, because he had not moved pretrial to suppress the particular irrelevant or prejudicial portions. Although a trial court’s decision whether to admit or refuse evidence is generally a matter of discretion, State v. Madison, 290 Or 573, 624 P2d 599 (1981), it is necessary that the record show that the court did exercise discretion. The statement in its entirety appears to have been admitted in evidence only because defendant did not move to suppress. Failure to challenge portions of the statement pretrial did not prevent defendant from making the objections he did make at trial. See ORS 135.037; State v. Browder, 69 Or App 564, 687 P2d 168 (1984).

Reversed and remanded for a new trial.