State v. Chandler

377 P.3d 605, 278 Or. App. 537, 2016 Ore. App. LEXIS 684
CourtTillamook County Circuit Court, Oregon
DecidedJune 2, 2016
Docket111222; A153171
StatusPublished
Cited by7 cases

This text of 377 P.3d 605 (State v. Chandler) is published on Counsel Stack Legal Research, covering Tillamook County Circuit Court, Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Chandler, 377 P.3d 605, 278 Or. App. 537, 2016 Ore. App. LEXIS 684 (Or. Super. Ct. 2016).

Opinion

ORTEGA, P. J.

An investigation by the Oregon Department of Justice’s Internet Crimes Against Children Task Force (ICAC) revealed that defendant was openly sharing photographs depicting child sexual abuse over the internet. Following a jury trial, defendant was convicted of five counts each of first- and second-degree encouraging child sexual abuse. On appeal, defendant asserts evidentiary errors in three assignments of error (assignments one, three, and four), all of which we reject for the reasons discussed in this opinion. The remaining two assignments, which we reject without written discussion, challenge the court’s failure to declare a mistrial based on prosecutorial misconduct. Accordingly, we affirm.

In May 2011, McBeth, an agent with the ICAC, was able to download seven images from a computer in defendant’s home, five of which depicted “underage children involved in acts of sexual conduct.” McBeth determined that the Internet Protocol (IP) address used to share those images over a peer-to-peer network was registered to defendant. After obtaining defendant’s name and address, McBeth secured a search warrant for his apartment. When McBeth served the warrant, she found defendant sitting in front of a computer, which was on and running at the time. Shortly thereafter, defendant told McBeth that “there were images on his computer that * * * he may not be able to confirm the age of the girls” and that “he would go so far as to say that there would be stuff on his computer.”

ICAC agents then searched defendant’s home and located two computers, which were linked together through the same network. Both computers contained photographs depicting child sexual abuse; however, the photographs that were the basis for the charged offenses in this case were located on the computer that defendant had been sitting in front of when the warrant was executed. We refer to that computer as the “Elite” model. The other computer found in the home belonged to defendant’s wife; we refer to that computer as the “Special Edition” model.

Defendant was charged with five counts of first-degree encouraging child sexual abuse and five counts of [539]*539second-degree encouraging child sexual abuse. While awaiting trial, defendant made several incriminating statements to his wife over the phone, which were recorded by police. The state introduced those statements at defendant’s trial, along with testimony from agents involved with the investigation. Posler, the computer forensics examiner who preserved and analyzed the evidence found on defendant’s computer, testified that, in addition to the photographs that provided the basis for the charges against defendant, the Elite computer also contained adult pornography and cartoon drawings of child sexual abuse. The jury also heard testimony, elicited by both the state and defendant, about who had access to the computers found in the home. Defendant’s defense theory was that there had been other members of his household, namely his wife and two young children, who had access to the Elite computer and could not be excluded as suspects. Neither defendant nor his wife testified at trial. The jury returned a guilty verdict on all counts.

As noted, defendant asserts three claims of eviden-tiary error on appeal. We address each of them in turn.

We begin with defendant’s first assignment of error, in which he contends that the trial court erred by admitting some of his wife’s out-of-court statements. In particular, defendant challenges the following statements to which McBeth testified at trial:

“[Defendant’s wife] said that there were two computers in the house. She said that one was [defendant’s] and that was the one in the corner near the sliding glass door, the one that we saw him sitting at. She had identified it as his computer. She said that she has used the computer in the past, but she currently does not have access to the computer because [defendant] changed the password but he did not tell her what it was.”

Defendant argues that those statements were hearsay and should not have been admitted over his objection. He contends that the statements did not fall under any hearsay exception and that their admission was not harmless to his case. Specifically, defendant claims that the statements were the only evidence introduced at trial showing that defendant had exclusive control of the Elite computer where the photographs were found. Citing Article VII (Amended), section 3, [540]*540of the Oregon Constitution, defendant claims that the erroneous admission of the hearsay statements likely affected his substantial rights and requires correction.

The state impliedly concedes that the statements were hearsay; however, it argues that the statements were properly admitted under the doctrine of curative admissibility.1 The state asserts that the statements were properly admitted under that doctrine to allow the state to explain similar inadmissible hearsay statements introduced by defendant earlier at trial. Alternatively, it argues that, even if the statements were inadmissible under that doctrine, their admission was harmless because the evidence did not have significant probative value.

We agree that the statements in question were hearsay.2 However, we need not reach the question of whether the statements were admissible under the doctrine of curative admissibility, because we conclude that any error in admitting the statements was harmless. See OEC 103(1) (“Evidential error is not presumed to be prejudicial.”). Thus, we limit our discussion to the harmless error inquiry, recounting additional facts as necessary. State v. Maiden, 222 Or App 9, 11, 191 P3d 803 (2008), rev den, 345 Or 618 (2009) (“[I]n our assessment of whether the erroneous admission of disputed evidence was harmless, we describe and review all pertinent portions of the record, not just those portions most favorable to the state.”).

We must affirm defendant’s conviction, “despite any error committed at trial, if, after considering all the matters [541]*541submitted, [we are] of the opinion that the judgment ‘was such as should have been rendered in the case.’” State v. Davis, 336 Or 19, 28, 77 P3d 1111 (2003) (discussing the requirements of Article VII (Amended), section 3, of the Oregon Constitution). That is, we must determine, after reviewing the record, whether there is “little likelihood that the particular error affected the verdict.” Davis, 336 Or at 32. In doing so, we consider “any differences between the quality of the erroneously admitted evidence and other evidence admitted on the same issue” to assess whether the jury would have found the evidence to be duplicative, cumulative, or unhelpful in its deliberations. Maiden, 222 Or App at 13 (discussing the factors set forth in Davis). Additionally, we consider “the importance of the erroneously admitted evidence to a party’s theory of the case.” Id. The degree to which the evidence relates to a central factual issue in the case can be indicative of the extent to which it may have affected the jury’s determination. See id.

In this case, the challenged statements were relevant to a central issue in defendant’s case—that is, defendant maintained that the state could not prove that he was the one who possessed and duplicated (by downloading and saving) the photographs on his computer.

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Cite This Page — Counsel Stack

Bluebook (online)
377 P.3d 605, 278 Or. App. 537, 2016 Ore. App. LEXIS 684, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-chandler-orcctillamook-2016.