# Petition — Workman v. Oregon

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1430%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 451 U.S. 939

## Text

| 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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1430%3A1. Public record. Not legal advice.