Petition — Workman v. Oregon

| Office Supreme Court, US. ]

No. B80-+1490 FiLeD

MAR 2 1988:

ALEXANDER L. STEVAS,

CLERK

SUPREME COURT OF THE UNITED pon

IN THE

October Term, 1980

WILLIAM PETER WORKMAN, Petitioner

Ve

STATE OF OREGON, Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OC" THE

STATE OF OREGON

J. MICHAEL ALEXANDER

Brown, Burt, Swanson

& Lathen

1005 Capitol Tower

Salem, Oregon 97301

Telephone: (503) 581-2421

Counsel for Petitioner

i

INDEX

QUESTION PRESENTED...........

Whether a criminal de-

fendant's constitutional

right of confrontation

demands more than a

discretionary review

of a trial court's ruling

on the relevance of proffered

GURMROOT oo 6 08 ke wktbbcecsc

CONSTITUTIONAL PROVISIONS

Ts 646.5 6s Sake Rae hee es

STATEMENT OF THE CASE

Nature of the Action......

Summary of Facts..........

PRESENTATION OF FEDERAL

Se LU ol wok 6% OB OO eeeeeee

REASONS FOR GRANTING THE

PERE s 62 6 apeece és écdbkwe eee os

SMG. 6. 6 6s 0. «dubs ele ee

APPENDIX ;

Action by Court of Appeals

Letter denying Appellant's

Petition for Review.......

Letter denying Appellant's

Petition for Reconsideration

PAGE

:

4,5,6,7,8,9

9,10,11,12,

13

13,14,15,16,

17,18,19,20,

21,22,23

23

App~-1l sApp-2,

App-3,App-4

App-5

App-6

ii

INDEX, CONTINUED PAGE

APPENDIX:

GD 163. 37TBccccveccccecesves App-7

Original ORS 163.475....... App-8 ,App-9

Current ORS 163.475. .cccces App-9 ,App-10

i *

iii

AUTHORITIES

CASES CITED

Alford v. United States, 282 US

687, 094, 51 5 Ct O18, 75 L Ed

624 LAPGA Tb See ue Wide e's ena

California v. Green, 399 U S 149,

~ 155-156, 90 S Ct 1930, 26 L Ea

Se OD. CEC R Tee C4. 6 66 Ree

Chambers v. Mississippi, 410 U Ss

284, 93 S Ct 1038, 35 L Ed 2a

297 at i Nt a i

Davis v. Alaska, 415 U S 308,

94 S Ct 1103, 39 L Ed 2d

BETA ANCES CER Ke Kee eh wee ee

Dutton v. Evans, 400 U S 74, 79,

81-82, 91 S Ct 210, 27 L Ed

Oe DOS CACO) cee oc veces os

State v. Chase, 47 Or App 175,

P2d Na hs died te ks

State v. Eagreston, 31 Or App 9,

5 Pp 0 2 a rae

State v. Jalo, 27 Or App 845,

~ 850-851, 557 P2d 1359

a oe a

State v. Lantz, 44 Or App 695,

103, P2d (1980)....

State v. Ogden, 29 Or App 195,

207, 211, 65 P 444 (1901)..

United States v. Crumley, 565

F 20g 945 (5th Cir, i348) at

PE 6h as eh hikes wwe wes Uae et

PAGE

15

14,i5

21,22

18,21

14

20

16,17

18,21

17,19,20,

21

16

22

: iv.

CASES CITED, CONTINUED PAGE

United States v. Kizer, 569 F

2d 504 (9th Cir, 1978) at

its 66s &eehe ees eeenee#e? eeeee7ns3e7#e#ee#e#8e#e@

STATUTES AND OTHER CONSTITUTIONAL

PROVISIONS

Article I, Section ll of the

Constitution of the State

OF OFOGON. cccccccccs ee re es ee ee

Amendment VI to the Constitution

of the United States...... Pe ee bie *

Amendment XIV to the Constitution

OF Cie DTRLGOR BStAteGs cc cecsccoceces

Oe ek oe Cae e kcd ae 6 068.60 0B

nt Sree: ck bine Oe 6 0666 e 88 a a: r

ORS 163.475 (5) ecacs Os dee ned odes as olbe

28 USC § 1257(3) -cccccccccccccccccce

TREATISES

Am Jur 2d, Rape, § 83 at 810-

ie te eile a ele alee eee ee 6 ws gle

The Rape Victim: A Victim of

Society & the Law, Will L.J.

36, 39, 41-42 Sh gL ) SOUS a

22

17

16

-j-

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No.

WILLIAM PETER WORKMAN, Petitioner

Vv.

STATE OF OREGON, Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF THE

STATE OF OREGON

The Petitioner WILLIAM PETER WORKMAN

respectfully prays that a Writ of Certi-

Orari issue to review the opinion of the

Court of Appeals of the State of Oregon

entered in this proceeding on August 25,

1980.

QUESTION PRESENTED

Whether a criminal defendant's con-

stitutional right of confrontation demands

-2=

more than a discretionary review of a

trial court's ruling on-the relevance

of proffered evidence?

OPINION BELOW

The Court of Appeals affirmed the

judgment of the trial court through an

Opinion dated August 25, 1980 and reported

at 47 Or App 1055, P2d (1980) A

|

copy of such Opinion is included in the

Appendix.

JURISDICTION

The judgment of the Court of Appeals

was entered on August 25, 1980. A timely

Petition for Review was filed in the

Supreme Court of the State of Oregon,

such Petition being denied. A timely

Petition for Rehearing was then filed,

requesting the Supreme Court of the State

of Oregon to reconsider its denial of the

Petition for Review. Such Petition for

Rehearing was denied on December 17, 1980,

and this Petition for Writ of Certiorari

was filed within 90 days of that date.

This Court's jurisdiction is invoked

under 28 U.S.C. § 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment VI to the Constitution of

the United States:

RIGHTS OF ACCUSED IN CRIMINAL PROS-

ECUTIONS. In all criminal prosecu-

tions, the accused shall enjoy the

right to a speedy and public trial,

by an impartial jury of the State

and district wherein the crime shall

have been committed, which district

Shall have been previously ascertained

by law, and to be informed of the

nature and cause of the accusation;

to be confronted with the witnesses

against him; to have compulsory

process for obtaining witnesses in

his favor, and to have the Assistance

of Counsel for his defense.

Amendment XIV to the Constitution of

the United States, Section 1:

CITIZENSHIP; PRIVILEGES AND IMMUNI-

TIES; DUE PROCESS; EQUAL PROTECTION.

All persons born or naturalized in

the United States, and subject to

the jurisdiction thereof, are citi-

zens of the United States and of

the State wherein they reside. No

State shall make or enforce any law

which shall abridge the privileges

or immunities of citizens of the

~4-

United States; nor shall any

State deprive any person of life,

liberty, or property, without due

process of law; nor deny to any |

person within its jurisdiction

the equal protection of the laws.

STATEMENT OF THE CASE

NATURE OF THE ACTION.

In this criminal case the Petitioner

was charged with Rape in the First Degree,

a violation of Oregon Revised Statutes .

(hereinafter referred to as ORS) 163.375.

He was tried by a judge and jury and found

guilty.

SUMMARY OF FACTS.

Sue Kiefel, 19 years of age, regu-

larly worked the late shift at the United

States National Bank in downtown Portland.

She reported to her job at 3:30 in the

afternoon and worked late into the night

and sometimes the early hours of the

1

ORS 163.375 is set forth in the Appendix

at App-7.

-5-

morning. She often rode to and from her

employment with a fellow worker, Theresa

Scott. (Testimony of Theresa Scott, Tr

at 71-72; Testimony of Sue Kiefel, Tr at

79-80)

On August 24, 1978 both Miss Scott

and Miss Kiefel got off work about 10:30

p.m., and were going to go home in Miss

Scott's car. However, when they came out

of the bank they noticed a couple of young

men in a dark van. The boys started yell-

ing at them to come over, and, although

Miss Scott declined, Miss Kiefel went over

to talk. The Defendant was driving, and

a friend was in the other seat in the cab

area. They asked Sue if she knew where

they could do some drinking, and she

agreed to take them to a store to buy

some beer if they would later take her

home. She got in the vehicle and then

noticed two more boys in the back section.

(Testimony of Miss Kiefel, Tr at 82-83)

-6-

Miss Kiefel made good on her promise

and took her companions to a nearby grocery

store where they purchased a couple of six

packs. The five of them drove around,

drinking the beer and smoking some mari-

juana. : This lasted for 30 to 45 minutes,

and then the van turned onto a bumpy gravel

road and up a hill. The vehicle stopped in

a dark area apparently unlit by neighboring

Signs or homes. Three of the boys got out,

but the driver (Petitioner) stayed and be-

gan making advances toward Miss Kiefel --

attempting to kiss and pet her. She said

she didn't do that with someone she'd first

met, and he left the van.

The victim then testified that she was

alone for about a minute, after which all

four boys returned and announced they were

going to have a “rodeo” -- each have his

2

The victim admitted having two beers and

one or two joints. (Testimony of Miss

Kiefel, Tr at 111-112)

-Jo

turn with her. They pushed her to the

back of the van, held her down, took off

her shoes and pants, and proceeded to have

intercourse, two boys holding her wrists

and arms while a third committed the sex-

ual act. They told her she would be gagged

if she didn't stop screaming, and threaten-

ed her with what she thought was a base-

ball bat. (Testimony of Miss Kiefel, Tr

at 83-87, 89, 91-96, 98) Each of the young

men had intercourse with Miss Kiefel, but

3

denied the use of force. (Testimony of

Defendant, Tr at 247; Testimony of Mr.

Hoover, Tr at 254)

Two of the accused -- the Defendant and

a Mr. Hoover, admitted the act, but

denied the use of any force, and con-

tended that Miss Kiefel consented.* The

other two did not testify. (Testimony of

Miss Kiefel, ‘Tr at 83-87, 89, 91-96, 98;

Testimony of Defendant, Tr at 247; Testi-

mony of Mr. Hoover, Tr at 254)

*One Ronald Hopkins testified that

Hoover admitted all four had raped the

victim, and formulated a story to the

contrary. (Testimony of Ronald Hopkins,

Tr at 270-272)

The boys then left and Miss Kiefel

walked from the hill to the road below,

where she flagged a car. She was picked

up by Eva Wardin, who, after hearing Miss

Kiefel's story of the alleged rape, sugg-

ested that she report it to the aide’

Although Susan looked upset and had

tears in her eyes, her clothes were not

disheveled and she had calmed down signi-

ficantly by the time she reached the police

station. The police took her to Dwyer Hos-

pital for examination. The doctor found

evidence of slight genital swelling, con-

sistent with intercourse, but no bleeding,

bruises, lacerations, or particular tender-

ness in the pelvic area. There was no in-

dication of external injury except for a

slight irritation on Miss Kiefel's left

wrist.

Miss Kiefel had not initially wanted to

go to either the police or the hospital,

but rather to return home. (Testimony of

Mrs. Wardin, Tr at 189; Testimony of Mise

Kiefel, Tr at 149)

-9-

Both the State and defense doctor

essentially agreed that the absence of in-

jury in the vaginal area is generally, but

not necessarily, inconsistent with forcible

intercourse. One reason is that unless a

woman's natural lubrication is present,

there will normally be some tearing after

sexual penetration. This lubrication is

only witnessed when the female is sexually

aroused, and such arousal is certainly in-

consistent with forcible intercourse.

(vestimony of Miss Kiefel, Tr at 102-104,

118-119, 149; Testimony of Dr. Perlman, Tr

at 156, 158, 159-161, 164-165; Testimony of

Dr. Dinsmore, Tr at 167-171; Testimony of

Mrs. Wardin, Tr at 175-178, 189) Despite

such evidence, the Petitioner was convicted.

|

\

PRESENTATION OF FEDERAL QUESTION

5

Pursuant to ORS 163.475 Defendant re-

quested a pretrial in camera hearing to

5

ORS 163-475 is set forth in the Appendix

at App-9, App-10.

-10-

determine the admissibility of evidence of

the prosecutrix's sexual habits and behavior.

She testified that on one occasion, June 19,

1979, she had had a party in her apartment

and had been drinking beer and smoking mari-

juana. Five men remained in her apartment

overnight on that occasion, although Miss

Kiefel admitted having sexual relations with

only one. She also stayed overnight with

two men on August 8-9 of 1979, although once

again admitted to intercourse with only

one. On the night of August 16-17, 1979,

she again spent the night with two men, but

denied having sex with either. Finally,

she lived with two men for a period of some

»sthree months, but only testified to sleeping

6

with one. In addition, she admitted to

The specific individuals were:

June 19: Mr. Remell, Mr. Gray, Mr. Pruitt,

Keith & Cary;

August 8-9: Greg Pratt, Keith Kokovudo;

August 18-19: iLouis Johnson, Richard Ar-

thur

Three month period: Greg Pratt, Cary --

It is interesting that Greg was the

"boyfriend" who the prosecutrix

-ll-

being sexually active since her freshman

year in high school. (Testimony of Miss

Kiefel, Tr at 22-24, 27-28, 29, 31-35,

Petitioner felt such evidence was

relevant to his case, and that a ruling of

inadmissibility would be at odds with his

constitutional right of confrontation.

Specifically, counsel raised the issue

as follows:

MR. BURT: Because it is the theory of the

defense that she voluntarily

went with and had relations

with four men at one time.

In fact it's that unusual

situation that makes it

admissible that this woman

has a habit of spending the

night with multiple male persons.

THE COURT: Well, I'm going to rulethat that

testimony is inadmissible at this

time. I will instruct counsel

not to mention it during voir

dire examination nor in opening

statements. And then at the

time of your cross-examination

of the complaining witness, if

you think that a further record

6 (Cont'd)

generally admitted to sleeping with,

but when he left the home she remained

with Cary, her "man friend” as opposed

to her "boyfriend."

MR.

BURT:

-12<

should be made, we will have

an in camera hearing again at

that time. And then if you

want to make an offer or proof

as part of your case with these

other witnesses, you go ahead.

But I don't think, Mr. Burt,

what you have is 163.475. If

you brought forth witnesses,

each of whom said she volun-

tarily met them or they all

had sex, I might rule differ-

enc. So far you have got her

at a party sleeping with her

boyfriend and there are other

males there. The fact that

she might have drank some beer

and smoked some marijuana and

then you added cocaine, I think

all that does is blacken her as

a person. (Tr 54, Lines 16-25;

Tr 55, Lines 1-13)

Our problem with this, Your

Honor, I think maybe we might

as well make the record now.

We contend that this entire

section, 163.475 is unconsti-

tutional for two reasons. It

prevents a criminal defendant

in a rape case from confront-

ing his witnesses. He is arbi-

trarily limited against showing

both her sexual disposition,

which the statute uses, and her

prior sexual acts. This is a

deprivation of his right to

confront the witness since

that is the very guts of a rape

case. Did she consent or not?

And the fact that she has con-

_ sented many times before, in

-13-

our opinion, is also, and should

be rélevant in a rape case.

(Tr 55, Lines 21-25; Tr 56, Lines

1-8)

THE COURT: ... But in any event, the fact

she had been at parties before

and slept with her boyfriend,

which is the only evidence be-

fore me, is not relevant and

I have so ruled. And that that

prior sexual conduct when she

was a freshman in high school,

she had sex with this boy eight

times and then when she was a

sophomore she had sex with some-

body fifteen times and she was

celibate during her junior and

senior year and since then she

has been twenty-five times with

Craig Johnson or Gregg, whoever

it is. I don't think those are

admissible to show any, accord-

ing to the statute, motive or

bias. (Tr 57, Lines 8-18)

This constitutional question was then ad-

vanced in the Oregon Court of Appeals through

appropriate Assignment of Error.

REASONS FOR GRANTING THE WRIT

The Decision below, and the Trial

Judge's ruling on admissibility of the

prosecutrix's sexual reputation, affords

unnecessary protection to the alleged

-14-

victim and violates the Petitioner's con-

frontation rights. In such situations,

the trial court should not be granted wide

discretion to deny the introduction of evi-

dence, but should instead be guided by

better defined parameters which allow ad-

mission of evidence that is marginally

relevant. This court has not addressed

the impact of the confrontation clause

toward liberalizing the initial admission

of evidence favorable to a criminal accused,

as opposed to allowing a broad scope of

cross-examination.

The Sixth Amendment right of confron-

tation has been most often discussed in

terms of appropriate limits of cross-

examination, and its conflict with tradi-

tional rules of evidence, especially as

they relate to hearsay exceptions. (Dutton

v. Evans, 400 U S 74, 79, 81-82, 91 S Ct 210,

27 L Ed 2d 213 (1970); California v.

Green, 399 U S 149, 155-156, 90 S Ct 1930,

rt

-15-

26 L Ed 2d 489 (1970); Alford v. United

States, 282 U S 687, 694, 51 S Ct 218, 75

L Ed 624 (1931)) Little has been mentioned

with regard to an expansion of the initial

admissibility of evidence to logically

follow the close scrutiny which the clause

demands in areas of hearsay. Indeed, a

criminal defendant's right to confront

witnesses by contrary evidence is certainly

as important as his opportunity for cross-

examination. Yet the latter has received

all constitutional attention, while general

evidentiary questions have been left to the

broad discretion of the trial judge. This

Petitioner, and others accused of criminal

conduct, especially rape, are entitled to

more far-reaching protection. In particular,

a rape defendant's right to confrontation,

when read in light of current "rape shield"

laws, as enacted in Oregon, should expand,

rather than limit the admissibility of a

prosecutrix's sexual habits. An overview

-16-

of Oregon's evidentiary rules is indicative

of national trends, and supportive of

Petitioner's contention.

Past authorities found that a pro-

secutrix's reputation for chastity was

relevant to the issue of consent, as was

her prior association with the Defendant.

(State v. Eggleston, 31 Or App 9, 569 P2d

1088 (1977); State v. Ogden, 39 Or 195, 207-

211, 65 P 444 (1901); See also The Rape

Victim: A Victim of Society and the Law,

Will. L.J. 36, 39, 41-42 (1974)) However,

evidence of particular illicit acts with

persons other than Defendant was generally

not allowed, at least in part on the theory

that while the Defendant may be

«+. expected to defend her

general reputation for chastity,

she cannot anticipate the charges

of specific acts of illicit inter-

course which may be made by men

who perhaps have been suborned

to testify that they have had

such connection with her, ...

(Ogden, supra, at 210)

However, the distinction between character

-17-

for chastity and specific acts is not clear

cut, and the latter was frequently allowed

as evidence of the former. (See Am Jur 2d,

Rape, § 83, at 810-811; State v. Lantz, 44

Or App 695, 703, P2d_ (1980)) The

result was often a trial of the victim

rather than the defendant, with all the

accompanying embarrassment and resultant

reluctance to carry through with the pros-

ecution.

Protection of the victim became of

paramount importance, as reflected in some-

what widespread passage of "rape shield"

laws, including ORS 163.475. (See State v.

Eggleston, supra.) The initial version

7

of this statute prohibited any evidence

of a rape victim's sexual character or

reputation, and similarly precluded testi-

mony concerning her prior sexual contacts,

except with the Defendant. However, this

7

Original ORS 163.475 is contained in the

Appendix at App-8, App~9.

-18-

strict prohibition came in conflict with

a Defendant's Constitutional right to con-

frontation : when the historical evidence

concerning the prosecutrix was indeed rele-

vant. When such competing interests colli-

ded, the legislative efforts to protect the

victim had to necessarily fall before the

constitutionally guaranteed rights of the

accused. (See Davis v. Alaska, 415 U §S

308, 94 S Ct 1103, 39 L 2d 2d 347; State

v. Jalo, 27 Or App 845, 850-851, 557 P2d

1359 (1976) )

After Jalo, pertinent Oregon law

(ORS 163.475) was amended to allow an in

camera hearing to determine if a rape

victim's previous sexual conduct, with

either the Defendant or others, would be

admitted at trial. Such evidence carried

Article I, Section 11 of the Constitu-

tion of the State of Oregon; Amendments

VI and XIV of the United States Con-

stitution.

-19=-

particular relevance if it concerned motive

or bias, or might rebut scientific or medi-

cal evidence offered by the State. (ORS

hes a7ets)) The permissible bounds of

this type of inquiry have also encompassed

evidence to impeach testimony that the vic-

tim was supposedly ashamed by the sexual

act, and therefore delayed reporting it.

(State v. Lantz, supra) The countervailing

policies of protecting the victim and in-

suring the Defendant's constitutional rights

has finally evolved into a balancing act re-

quiring the Defendant to "... demonstrate

that the proffered evidence is relevant

and has substantial probative value in

establishing or rebutting a material issue

in the trial." (State v. Lantz, supra, 44

Or App, at 702)

But how should this question of ad-

missibility be resolved by the trial judge

9

Current ORS 163.475 is set forth in the

Appendix at App-9, App-10.

-20-

and re.iewed by the appellate courts?

The Oregon Court of Appeals ruled that

all such questions of admissibility are

matters for the trial court's discretion,

and will not be grounds for reversal absent

its abuse. (Opinion of Court of Appeals

at 3, citing State v. Chase, 47 Or App 175,

P2d (1980)) However, this most

recent promulgation overlooked the con-

stitutional issue when it stated that in

determining the admissibility of sexual

evidence,

... the court must balance the

probative value of the evidence

against the prejudicial impact

such evidence is likely to have

on the minds of jurors and the

humiliating effect on complain-

ant, which the statute manifestly

seeks to prevent. (Opinion, at

2, citing State v. Lantz, 44 Or

App 695, 607 P2d 197 (1980))

In fact, the trial court must balance the

probative weight of the evidence against

not only the interests of the victim, but,

more importantly, the constitutional rights

of the accused. When the rights of the

-2l1-

prosecutrix and defendant then collide,

this conflict must necessarily be decided

in favor of liberal rights of confrontation.

(See State v. Lantz, 44 Or App 695, 702, 607

P2d 197 (1980); State v. Jalo, 27 Or App

845, 850-851, 557 P2d 1359 (1976); Davis v.

Alaska, 415 U S 308, 94 S Ct 1103, 93 L Ed

2d 347 (1974))

The preeminence of an accused's right

to confrontation implies that something

more than mere discretion is required of

a trial court. Indeed, although the courts

continue to generally speak only in such

terms, the opinions certainly ask closer

scrutiny when constitutional rights are in-

volved. Thus, interests competing with the

right of confrontation are to be "closely

10

examined" , and a trial court's dis-

10

Chambers v. Mississippi, 400 U S 284,

93 S Ct 1038, 35 LE d 297 states at

295:

"...(t)he right to confront and cross-

examine is not absolute and may, in

appropriate cases, bow to accommodate

-22<

il

cretion must give “due regard” to the

right of confrontation before excluding

evidence that is even "minimally relevant."

A less stringent evidentiary test is cer-

tainly appropriate, for without such in-

creased admissibility, the accused's con-

10. (Cont'd)

other legitimate interests in the crim-

inal trial process... But its denial

or significant dimunition calls into

question the ultimate ‘integrity of

the fact-finding process’ and requires

that the competing interest be closely

examined." (Emphasis added)

11

United States v. Crumley, 565 F 2d 945

(5th Cir, 1978) states at 949:

"A trial court's sound discretion limits

the scope and extent of cross-examination

and appellate court will only interfere

with that ruling absent an abuse of dis-

cretion. However, this discretion must

give due regard to the Sixth Amendment's

Right of Confrontation." (Emphasis added)

12

United States v. Kizer, 569 F 2d 504

Xr, states at 505:

"It is established, however, that cross-

examination may be limited where the

Sixth Amendment interest is outweighed

by the danger of harrassing witnesses

or unduly prejudicing the jury.... The

proper extent of cross-examination lies

within the sound discretion of the trial

court.... The trial court may limit or

even prohibit a proffered line of inquiry

that is minimally relevant.” (Emphasis

added) ;

-*%

-23-

stitutional rights carry no additional

weight.

CONCLUSION

Neither the Oregon Court of Appeals

nor the trial judge properly considered

the Defendant's constitutional rights

when deciding the evidentiary questions

pertinent to this case. The test applied

should not defer so totally to the trial

court's discretion without first insuring

that every step has been taken to guarantee

proper confrontation. In rape cases the

balancing of interests must include those

insured by the constitution, and afford-

ing protection to the accused. For these

reasons, a Writ of Certiorari should issue

to review the Judgment and Opinion of the

Court of Appeals of the State of Oregon.

Respectfully submitted,

BROWN, BURT, SWANSON & LATHEN

By: J. MICHAEL ALEXANDER

Of Attorneys for Petitioner

App-1l

APPENDIX

ACTION BY COURT OF APPEALS

IN THE COURT OF APPEALS OF THE STATE

rd OF OREGON

State of Oregon,

Respondent, No. 79-4-248

CA 16664

Vv.

William Peter Workman,

Appellant

Appeal from Circuit Court,

Clackamas County

Dale Jacobs, Judge

Argued and submitted July 28, 1980

J. Michael Alexander, Salem, argued

the cause for appellant. With him on the

brief was Brown, Burt, Swanson & Lathen,

Salem.

Jan P. Londahl, Assistant Attorney

General, Salem, argued the cause for

respondent. With him on the brief were

James M. Brown, Attorney General, and

Walter L. Barrie, Solicitor General,

Salem.

Before Richardson, Presiding Judge,

and Thornton and Buttler, Judges.

THORNTON, J.

Affirmed.

FILED August 25, 1980

App-2

THORNTON, J.

Defendant appeals from his conviction

on the charge of first degree rape. He

assigns as error the exclusion of certain

testimony alleged to be evidence of the

sexual conduct of complainant. We affirm.

The incident from which the criminal

charge against this defendant stems oc-

curred on August 24, 1978. Complainant

was allegedly picked up and raped by four

young men, one of whom was identified as

defendant. Defendant admitted the act of

intercourse but contended that no forcible

compulsion was employed. ORS 163.375(1) (a).

During the in camera pretrial hearing

held pursuant to ORS 163.475(4), complain-

ant testified, in response to questions by

defendant's attorney, that on three occasions

during the summer of the year following the

incident, 1979, she had spent the night in

dwellings which were simultaneously occupied

by several young men. On two of these oc-

casions complainant stated she spent the

night with her boyfriend. As to the third

instance, she admitted that she stayed in

a house with two men, one of whom was a

good friend who had lived for some period

of time with her boyfriend, but she denied

having any sexual relations with either of

them. Defendant offered to rebut complain-

ant's testimony with respect to the number

and identities of the persons who slept in

the same dwelling as complainant but

admitted that no witness would testify to

any specific act of sexual relations.

The trial court held the proffered

evidence irrelevant. ORS 163.475(2) prohi-

bits the use in any trial of a sexual

offense of evidence to prove complainant's

sexual character and reputation and the

App-3

statute further provides:

"(3) Except as provided in sub-

section (4) of this section, in a

prosecution under ORS 163.355 to

163.425, evidence of previous sexual

conduct of a complainant is presumed

to be irrelevant and shall not be

admitted and reference to that con-

duct whall not be made in the pre-

sence of the jury. This presumption

may be overcome.

"(4) * * * If the court finds

that the evidence or testimony sought

by the defendant regarding the pre-

vious sexual conduct of complainant

is relevant for the purpose offered

and is not otherwise inadmissible,

the court shall issue an order

stating what evidence may be intro-

duced by the defendant, and the

nature of the questions permitted

at trial."

In determining whether the presumption is

overcome, the court must balance the pro-

bative value of the evidence against the

prejudicial impact such evidence is likely

to have on the minds of jurors and the

humiliating effect on complainant, which

the statute manifestly seeks to prevent.

State v. Lantz, 44 Or App 895, 607 P2d

. Defendant contends the prof-

fered evidence is relevant to show a

pattern of behavior on complainant's

part which demonstrates a proclivity

for engaging in sexual relations with

more than one man at a time. This defen-

dant further asserts, adds strength to

his argument that complainant consented

to the act in question. The state argues

that the evidence is defective on several

grounds: (1) the incidents at issue here

eae...

App~4

are not "previous sexual conduct" inasmuch

as they occurred nearly a year after the

incident; (2) the incidents are not evi-

dence of sexual conduct; and (3) the evi-

dence is ultimately irrelevant.

In State v. Chase, 47 Or App 173,

P2d (1980), we held that determina-

tions under ORS 163.475(4) are similar to

other admissibility rulings and are subject

to reversal only where the trial court

abused its discretion.

c The evidence here is of no probative

value. It is evidence of conduct, but not

sexual conduct. It established only that

complainant had an opportunity to engage

in the type of conduct which defendant

seeks to distill from the victim's testi-

mony. State v. Goguen, 196 Or 586, 592,

250 P2d 924 (1952) (evidence that complain-

ant read "sexy literature” and went with

members of both sexes on car rides during

which "embracing" occurred not admissible

on issue of consent). The inference which

must be drawn to render these incidents

evidence of sexual conduct is tenuous at

best. It is contrary to the assertions

of complainant and the defense admitted

it had no actual evidence of sexual acti-

vities. Further, the inference in question

must be drawn, if at all, by operation of

prejudice, namely, that a woman who would

spend the night in the same dwelling as

four men would do so for the purpose of

engaging in sexual activities with them.

We conclude that the evidence was properly

excluded.

Affirmed.

App-5

November 21, 1980

J. Michael Alexander

Attorney at Law

1005 Capitol Tower

Salem, OR 97301

Re: State v. William Peter Workman

CA 16664 SC 27320

Dear Mr. Alexander:

The Supreme Court on November 20,

1980, denied Appellant's Petition for

Review in the above-entitled matter.

This letter constitutes the order of

the Supreme Court denying the petition.

Very truly yours,

Marilyn Hartley

Supreme Court

Calendar Clerk

MH/vr

cc: Jan P. Londahl

App-6

December 17, 1980

J. Michael Alexander

Attorney at Law

1005 Capitol Tower

Salem, OR 97301

Re: State v. William Peter Workman

CA 16664 SC 27320

Dear Mr. Alexander:

The Supreme Court on December 16,

1980, denied Appellant's Petition for

Reconsideration in the above-entitled

matter.

This letter constitutes the order of

the Supreme Court denying the petition.

Very truly yours,

Marilyn Hartley

Supreme Court

Calendar Clerk

MH/vr

cc: Jan Peter Londahl

App-7

ORS 163.375. RAPE IN THE FIRST DEGREE.

(1) A person who has sexual intercourse

with a female commits the crime of rape

in the first degree if:

(a) The female is subjected to forcible

compulsion by the male; or

(b) The female is under 12 years of age;

or

(c) The female is under 16 years of age

and is the male's sister, of the

whole or half blood, his daughter

or his wife's daughter.

(2) Rape in the first degree is a Class

A felony.

‘ App-8

Original ORS 163.475 reads as follows:

ADMISSIBILITY OF EVIDENCE OF SEXUAL

CHARACTER IN PROSECUTIONS UNDER ORS

163.355 to 163.425' "COMPLAINANT"

DEFINED; RIGHT TO IMPEACH WITNESSES

UNAFFECTED. (1) For the purposes of

this section, “complainant" means the

alleged victim of the crime for which

the defendant is prosecuted. (2) In

a prosecution under ORS 163.355 to

163.425, evidence of the sexual chara-

cter or reputation for chastity of the

complaintant is not admissible for any

purpose, and reference to the sexual

character or reputation for chastity

of the complainant shall not be made

in the presence of the jury. (3) Ex-

cept as provided in subsection (4) of

this section, in a prosecution under ORS

163.355 to 163.425, evidence of previous

sexual conduct of complainant shall not

be admitted and reference to that con-

duct shall not be made in the presence

of the jury. (4) If a defendant wishes

to elicit evidence or testimony concern-

ing previous sexual conduct between

himself and the complainant for the

purpose of negating the existence of

forcible compulsion in the alleged

offense, the defendant must, during the

trial, but prior to the offering of such

evidence or making reference thereof,

request a hearing to be held to deter-

mine whether the evidence will be

admitted. The court shall conduct a

hearing out of the presence of the jury

and shall take such testimony and evi-

dence as it deems necessary. If the

Court finds that the evidence or testi-

mony sought by the defendant regarding

the previous sexual conduct of complain-

ant with the defendant is relevant for

the purpose offered and is not otherwise

inadmissible, the court shall issue an

App-9

Original ORS 163.475 (cont'd)

order stating what evidence may be intro-

duced by the defendant, and the nature of

the questions permitted at trial. (5)

Nothing in this section shall limit the

right of either the State or the defen-

dant to impeach the credibility of a

witness by proof of a prior conviction

of a crime.

Current ORS 163.475 reads in its entirety

as follows:

ADMISSIBILITY OF EVIDENCE OF SEXUAL

CHARACTER IN PROSECUTIONS UNDER ORS

163.355 to 163.425; "COMPLAINANT"

DEFINED; RIGHT TO IMPEACH WITNESSES

UNAFFECTED; OTHER RELEVANT EVIDENCE.

(1) For the purposes of this section,

“complainant” means the alleged: victim

of a crime for which the defendant is

prosecuted. (2) In a prosecution under

ORS 163.355 to 163.425, evidence of the

sexual character or sexual reputation

of the complainant shall not be made

in the presence of the jury. (3) Ex-

cept as provided in subsection (4) of

this section, in a prosecution under

ORS 163.355 to 163.425, evidence of

previous sexual conduct of a complainant

is presumed to be irrelevant and shall

not be admitted and reference to that

conduct shall not be made in the pre-

sence of the jury. This presumption

may be overcome. (4) If a defendant

wishes to elicit evidence or testimony

concerning previous sexual conduct of

the complainant, the defendant must,

prior to the offering of such evidence

or making reference thereto, request a

hearing to be held to determine whether

the evidence will be admitted. The

request for a hearing shall be made

App-10

Current ORS 163.475 (Cont'd)

prior to the trial unless for good cause

shown. Good cause shall be deemed to

exist if the defendant shows that the

evidence he wishes to offer was not

reasonably available to him prior to

trial. The Court shall conduct a hear-

ing out of the presence of the jury and

the public and shall take such testimony

and evidence as it deems necessary. If

the court finds that the evidence or

testimony sought by the defendant regard-

ing the previous sexual conduct of com-

plainant is relevant for the purpose

offered and is not otherwise inadmissible,

the court shall issue an order stating

what evidence may be introduced by the

defendant, and the nature of the ques-

tions permitted at trial. (5) Evidence

of the complaint's sexual conduct that may

be considered relevant includes, but is

not limited to: (a) Evidence that re-

lates to the motive or bias of the

complainant; or (b) Evidence that is

necessary to rebut or explain scientific

or medical evidence offered by the State.

(6) Nothing in this section shall limit

the right of either the state or the

defendant to impeach the credibility of

a witness by proof of a prior conviction

of a crime.