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					                                          SUPREME COURT
                                                 Media Release
COPIES/SUBSCRIPTIONS:                                                                                  Contact:
Copies of the slip opinions may be obtained from the Appellate Records Section, (503) 986-5555   Stephen P. Armitage
The full text of these opinions can be found at http://www.publications.ojd.state.or.us/             Staff Attorney
For Media Release subscription information, please contact the OJD Publications Section             (503) 986-7023
1163 State Street, Salem, OR 97301-2563 (503) 986-5656.



                   On October 21, 2009, the Supreme Court:

                   1.       Allowed petitions for review in1:

State of Oregon v. Everett Eugene Proctor, Jr. (S057507) (A134659) (appeal from Lane
County Circuit Court; affirmed without opinion at 227 Or App 289 (2009)).

                Defendant Everett Eugene Proctor, Jr., seeks review of a Court of Appeals
decision that affirmed without opinion a trial court decision overruling his objections to the
admissibility of certain evidence.

               A grand jury indicted defendant on 15 counts of identity theft, one count of
computer crime, and one count of theft I. Defendant pleaded guilty to five counts of
identity theft. The remaining counts were tried to the court.

               At trial, the state offered the testimony of a detective who had contacted the
issuers of various credit cards and obtained from them what he termed "screen prints" of
online credit card applications made in the victim's name. The documents constituted
printouts of the credit card companies' internal database systems. The state attempted to
elicit testimony from the detective concerning the contents of the documents from the
credit card companies, and to admit them as evidence. Defendant objected on hearsay
grounds. In response, the prosecutor attempted to make an offer of proof that the
documents were self-authenticating under OEC 901(2)(d). Defendant suggested that the
documents might be business records that could be admissible under the business records
exception to the hearsay doctrine, OEC 803(6), if the records custodians were available to
testify. (The records custodians were not present at trial.) Defendant also objected that his
state and federal right to confront and cross-examine witnesses would be violated by
admission of the documents, and argued that, "if you could get business documents in

         1
               These summaries of cases are prepared for the benefit of members of the
media to assist them in reporting the court's activities to the public. Parties and
practitioners should not rely on the summaries, or the statement of issues to be decided in
the summaries, as indicating the questions that the Supreme Court will consider.
Regarding the questions that the Supreme Court may consider, see Oregon Rule of
Appellate Procedure 9.20.

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under this 901(2)(d) exception, it would essentially eviscerate the hearsay rule." The trial
court overruled defendant's objection and admitted the evidence, commenting only on the
self-authentication issue. Subsequently, the trial court convicted defendant on the 12
remaining counts.

               Defendant appealed, arguing that authentication, although necessary for the
admission of documents, does not overcome a hearsay objection. Defendant also agreed
that the documents were not being offered to prove that the victim made the credit card
applications, but suggested that the documents were out-of-court statements by the credit
card companies that the applications and the information contained in them -- allegedly
supplied fraudulently by defendant -- were found in their databases. The state contended
that defendant had not preserved the issue raised on appeal, and argued that defendant had
failed to identify any assertion within the challenged documents that fit the definition of
hearsay.

              The Court of Appeals affirmed without opinion.

             On review, the issue is: When an entity generates a document using a
computer database, does the creation of that document generate an additional layer of
hearsay on top of the underlying data?


State of Oregon v. Terry Dean Schoen (S057652) (A129669) (appeal from Baker County
Circuit Court; opinion reported at 229 Or App 427, 211 P3d 948 (2009)).

             Defendant Terry Dean Schoen seeks review of a divided, en banc, per
curiam Court of Appeals decision that affirmed his conviction for third-degree criminal
mischief.

              As a result of a domestic dispute, defendant was arrested and placed in the
backseat of a patrol car. While inside the patrol car, defendant kicked the car door and
window but did not cause any damage. Defendant was charged, as pertinent here, with
criminal mischief III.

               During trial, defendant moved for a judgment of acquittal on the criminal
mischief count, asserting that the evidence was insufficient to demonstrate that he had
violated that statute. The trial court denied defendant's motion, concluding that there was
sufficient evidence for the jury to hear the charge. Subsequently, the jury convicted
defendant on the criminal mischief III count, along with other counts not relevant here.

               Defendant appealed, and the Court of Appeals affirmed in a divided, en banc,
per curiam decision. Four judges concurred in the plurality opinion, which determined that
a person need not affect property in any way to be guilty of criminal mischief III. The
plurality reasoned, in part, that a comparison of the elements of criminal mischief I and
criminal mischief II (which both require damage to property in excess of specific dollar

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amounts) with the elements of criminal mischief III (which does not mention damage or
any monetary amount), suggests that the legislature did not intend that damage to the
property tampered or interfered with constitute an element of criminal mischief III. Three
judges concurred in a separate opinion, concluding that defendant's conviction should be
affirmed because, in their view, petitioner's point -- that conduct must somehow affect the
property to violate the statute -- was not preserved. Three judges dissented. The dissent
would have held that the plain meaning of "tampers or interferes with property" in the
statute defining criminal mischief III requires production of an effect on the property (such
as negatively affecting the property's condition or usefulness), and suggested that a
contrary interpretation of the statute would criminalize relatively benign conduct.

              On review, the issue is: Must a person affect property in some way in order
to tamper or interfere with it?


              2.     Certified the ballot title in:

       Jerry Caruthers v. John R. Kroger (S057677)


              3.     Denied petitions for review in:

     State of Oregon v. Edward Bryan, Jr. (S056766) (A128743)
     State of Oregon v. Kevin Rodmond Walls (S057477) (A131115) (A131116)
     Jonathan Travis Beeman v. Jean Hill (S057638) (A136928)
     State of Oregon v. Craig Lee Boitz (S057648) (A139052)
     Paul Darwin Rennells v. Board of Parole and Post-Prison Supervision (S057653)
(A136550)
     Philip M. Borck v. Guy Hall (S057659) (A135734)
     Scott Charles Matthews v. Don Mills (S057679) (A136557)
     State of Oregon v. Jonathen Leyva (S057685) (A137106)
     Daniel Loren Jenkins v. Guy Hall (S057686) (A137950)
     Theresa Weismandel-Sullivan and Clifford Sullivan (S057692) (A134629)
     State of Oregon v. Danny Donnell McFadden (S057694) (A137280)
     Steven Ray Miller v. Brian Belleque (S057698) (A134949)
     Klye Evanoff v. Sharon Blacketter (S057699) (A137527)
     Daniel Dwight Davidson v. Jean Hill (S057706) (A136925)
     Eric Dwayne Cook v. Guy Hall (S057711) (A139437)
     State of Oregon v. David Wayne Jackson (S057721) (A136285)
     Shawn Jeffrey Whipple v. Guy Hall (S057723) (A138402)
     Greg Wasson v. Secretary of State (S057726) (A138224)
     State of Oregon v. Troy Richard McKenzie (S057729) (A134445)
     State ex rel Department of Human Services v. A. S. (S057732) (A141142)
     State of Oregon v. Willie Lee Johnson (S057733) (A136996) (A136997)
     State of Oregon v. Joel Sierra-Depina (S057739) (A131213)

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     Jesse Allen Woody v. Jean Hill (S057742) (A138156)
     State of Oregon v. Robert Michael McHale (S057747) (A134410) (A134411)
     Nathan Wayne Galloway v. Mark Nooth (S057750) (A138526)
     State of Oregon v. Clifford Allen Reyes (S057754) (A136211)
     Jason Gallegos v. Brian Belleque (S057757) (A134981)
     Scott Brian Steffler v. Brian Belleque (S057766) (A138961)
     State of Oregon v. David Ernest Gildersleeve (S057769) (A134567)
     Fray Martin Ramirez Perez v. Mark Nooth (S057776) (A141116)
     State of Oregon v. David Avalos-Hernandez (S057780) (A137973)
     State of Oregon v. Isaac Daniel Shoff (S057788) (A139483)
     Joseph Travis Turan v. Mark Nooth (S057806) (A141462)
     State of Oregon v. Shane Vondel Michael Greene (S057824) (A138051)
     Alan Boyd Crain v. Board of Parole and Post-Prison Supervision (S057827)
(A135978)


              4.    Dismissed a petition for review in:

       State of Oregon v. Barton Dean Leake (S057781) (A132469)


              5.    Denied petitions for reconsideration in:

     Pacific States Marine Fisheries Commission v. Department of Revenue (S055392)
     Dorothy J. Carnes v. Liberty Northwest Insurance Corporation (S057325)
(A138539)
     State of Oregon v. Damien Deshawn Douglas (S056986) (A123019)


              6.    Dismissed a petition for reconsideration in:

       State of Oregon v. Moises Ibarra-Perez (S055801) (A124866) (A124867)


              7.    Denied petitions for writ of mandamus in:

       State ex rel Robert Davidson-Schader v. Max Williams (S057789)
       State of Oregon v. Kenneth John Johnson (S057785)


              8.    Reinstated attorney Kathleen Eymann (Bar No. 792202) to the active
practice of law.




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