549
Argued and submitted October 5, 2018, reversed and remanded
December 26, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
ANGELA CHRISTINE JUDD,
Defendant-Appellant.
Deschutes County Circuit Court
16CR07389; A163385
457 P3d 316
Defendant smothered her grandmother, who was in hospice care, with a pillow.
During a counseling session, defendant later confessed to the homicide to Jones,
a licensed clinical social worker and mandatory reporter under ORS 124.050
(9)(g) and ORS 124.060. That confession led to defendant’s conviction, pursuant
to a conditional guilty plea, for second-degree manslaughter. On appeal, defendant assigns error to the trial court’s denial of her motion to exclude statements
that she made to Jones. Defendant argues that the trial court erred in ruling
that the mandatory elder abuse reporting statutes abrogate the psychotherapist-patient privilege, OEC 504, so as to allow for testimony in judicial proceedings.
Defendant also assigns error to the court’s determination, in response to her
motion to exclude statements under Oregon’s corpus delicti rule, that her statements were confessions that were sufficiently corroborated. See ORS 136.425(2).
Held: The trial court erred in denying defendant’s motion to exclude on the basis
of privilege, because the elder abuse reporting statutes only abrogate privileged
communications insofar as to permit the submission of the statutorily required
report of elder abuse. The trial court did not err in denying defendant’s corpus
delicti motion, because that rule does not provide a basis for excluding evidence.
Reversed and remanded.
Alta Jean Brady, Judge.
Laura A. Frikert, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Jamie K. Contreras, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
550 State v. Judd
LAGESEN, P. J.
Reversed and remanded.
Cite as 301 Or App 549 (2019) 551
LAGESEN, P. J.
After her grandmother began receiving hospice care,
defendant smothered her with a pillow. Defendant reported
the death as a natural one but later sought counseling with
a social worker, to whom she disclosed the homicide. The
social worker, a mandatory reporter of elder abuse under
ORS 124.050(9)(g) and ORS 124.060, reported defendant’s
conduct to law enforcement as required by ORS 124.065.
This ultimately led to defendant’s conviction, pursuant to
a conditional guilty plea, for second-degree manslaughter.
The primary issue before us is the extent to which the elder
abuse reporting statutes abrogate the psychotherapist-patient privilege contained in OEC 504, as that privilege
applies to communications between a licensed clinical social
worker and her patient. Based on the text, context, and legislative history of the elder abuse reporting statutes, we conclude that they abrogate the OEC 504 privilege only insofar
as to permit a report of suspected elder abuse but do not
abrogate it further. In particular, the statutes do not abrogate the privilege so as to allow for testimony in judicial
proceedings. Because the trial court erroneously concluded
otherwise, we reverse and remand.
I. BACKGROUND
Because defendant’s conviction is the product of a
guilty plea, the facts about defendant’s crime were not fully
developed below. As defendant has done in her opening brief,
we draw them from the evidence presented at the preliminary hearing on defendant’s pretrial motions.
Defendant’s grandmother, N, died at age 92 shortly
after entering hospice care. In the four years leading up
to N’s death, defendant had been her primary caregiver.
During that time, defendant had been paying N’s rent,
which was $1,980 per month and did not include medical
care. Defendant was concerned about the cost of N’s care
and housing. After N began requiring hospice care, defendant began telling others that N was going to die soon.
Although N was in declining health, on the
morning of the day of her death she was conversational,
alert, and seemed to be in little pain. She recognized her
552 State v. Judd
great-granddaughters when they visited and was eating and
drinking. Despite this, defendant told her daughter that she
did not think N “would pull through the night.” Roughly 12
hours before N died, defendant canceled all of N’s services,
including her meal services. Defendant did this even though
N had no food in her apartment except for some doughnuts.
That night, while alone with defendant, N died. Defendant
reported N’s death to hospice as a natural one.
Several weeks later, defendant sought counseling
from Jones through her employer’s employee-assistance program. Jones is a licensed clinical social worker who is authorized to provide mental-health counseling. At the counseling session, Jones told defendant that she is a mandatory
reporter. Defendant responded that she was a nurse, so
she was a mandatory reporter as well, and she understood
what that meant. Defendant told Jones that 10 days before
N died, N’s health began to rapidly decline. Defendant was
concerned that N’s lungs would fill with fluid, N would
develop a “death rattle,” and N would suffer for days until
she drowned. Defendant told Jones that she emotionally
struggled with what to do about N’s condition before deciding to kill her; defendant stroked N’s face, told her she loved
her, put a pillow on N’s face, and laid on top of her. N physically struggled while defendant smothered her. Defendant
told Jones that she felt “angry, guilty, and ashamed” about
it.
Immediately after the counseling session, Jones
reported defendant to law enforcement. Jones was told
not to disclose to defendant that she had made the report.
Defendant and Jones met for a second counseling session.
At that session, defendant disclosed further that she had
made the decision to kill N early in the morning while sober,
and that she drank two glasses of wine that day to “get the
courage.”
Defendant was charged by information with one
count of murder, ORS 163.115. She then moved to exclude
evidence of the statements that she had made to Jones. She
did so on two grounds: (1) that the statements were uncorroborated confessions that, in defendant’s view, Oregon’s corpus
delicti rule required the court to exclude from evidence; and
Cite as 301 Or App 549 (2019) 553
(2) that the statements were privileged under either OEC
504 (psychotherapist-patient privilege) or OEC 504-4 (regulated social worker-client privilege). The trial court denied
the motion. Rejecting defendant’s motion under the corpus
delicti rule, the court determined that, although defendant’s
statements to Jones were confessions, those confessions were
sufficiently corroborated. As to defendant’s motion based on
privilege, the court first ruled that defendant’s statements
to Jones were protected by the psychotherapist-patient privilege, OEC 504, and possibly the regulated social worker-client privilege, OEC 504-4. The court next ruled that the
elder abuse reporting statutes abrogated that privilege so as
to permit Jones both to report her belief that defendant had
abused N and to testify in subsequent judicial proceedings
about defendant’s statements to her about her treatment of
N, ultimately concluding as a matter of law that “[s]tatements made by Defendant to Jones related to elder abuse
are not privileged.”
Following the trial court’s ruling, defendant conditionally pleaded guilty to one count of second-degree
manslaughter. She reserved the court’s ruling denying her
motion to exclude her statements made to Jones on the bases
of the corpus delicti rule and privilege. On appeal, defendant assigns error both to the court’s denial of her motion to
exclude her statements to Jones on the grounds of privilege
and also to the court’s determination, in the context of its
denial of defendant’s motion to exclude evidence of her statements to Jones under Oregon’s corpus delicti rule, that those
statements were sufficiently corroborated.
II. ANALYSIS
A. Privilege
On appeal, the state does not dispute the trial court’s
conclusion that, but for the elder abuse reporting statutes,
defendant’s statements to Jones are privileged under OEC
504. Instead, at issue is the extent to which the elder abuse
reporting statutes abrogate that privilege. Defendant contends first that Jones, although a social worker, qualifies
as a “psychologist” or “psychiatrist” for purposes of ORS
124.060, such that the privilege was not abrogated at all.
554 State v. Judd
Alternatively, defendant contends that, even if ORS 124.060
abrogated the OEC 504 privilege applicable to her statements to Jones, it did so only insofar as to allow for Jones
to make a report of elder abuse but did not abrogate the
privilege so as to allow the admission of defendant’s statements in a judicial proceeding. The state responds that a
social worker is not a “psychologist” or a “psychiatrist,” and,
further, that the elder abuse reporting statutes abrogate the
privilege for purposes of judicial proceedings triggered by a
report of elder abuse.
The issue of the extent to which the elder abuse
reporting statutes abrogate the OEC 504 privilege presents
a question of statutory construction, so we review for legal
error. Burley v. Clackamas County, 298 Or App 462, 464,
446
P3d 564, rev den,
365 Or 721 (2019). To answer that question, we consider the text of ORS 124.060 in context, taking
into account any relevant legislative history, State v. Gaines,
346 Or 160, 171-73,
206 P3d 1042 (2009), and conclude that
(1) a social worker is not a “psychiatrist” or a “psychologist”
for purposes of ORS 124.060, but (2) ORS 124.060 abrogates
the OEC 504 privilege only insofar as to allow for a report of
elder abuse.
ORS 124.060 provides:
“(1) Any public or private official having reasonable
cause to believe that any person 65 years of age or older
with whom the official comes in contact has suffered abuse,
or that any person with whom the official comes in contact
has abused a person 65 years of age or older, shall report or
cause a report to be made in the manner required in ORS
124.065.
“(2) Nothing contained in ORS 40.225 to 40.295 affects
the duty to report imposed by this section, except that a
psychiatrist, psychologist, member of the clergy or attorney
is not required to report such information communicated
by a person if the communication is privileged under ORS
40.225 to 40.295.”
Defendant first points to the exception to the elder
abuse reporting requirement afforded to psychologists by
ORS 124.060(2) and argues that the exception should extend
to social workers who, like Jones, provide counseling services
Cite as 301 Or App 549 (2019) 555
in which communications are otherwise protected by the
OEC 504 privilege. In particular, defendant contends that
the dictionary definition of “psychologist” is broad enough
to encompass a social worker who provides counseling services. Webster’s Third New Int’l Dictionary 1833 (unabridged
ed 2002) defines “psychologist” as “a student of the mind or
of behavior” or “a specialist in one or more branches of psychology; esp: a practitioner of clinical psychology, counseling, or guidance.” She argues that we should conclude that
the broad definition is what the legislature intended when it
referred to a psychologist in ORS 124.060.
We are skeptical. In ordinary discourse, the word
“psychologist” tends to suggest the more particularized
part of the Webster’s definition: “a specialist in one or more
branches of psychology.” Regardless, a dictionary definition
“should not be relied on to resolve a dispute about plain
meaning without critically examining how the definition
fits into the context of the statute itself.” State v. Gonzalez-Valenzuela, 358 Or 451, 461,
365 P3d 116 (2015). Here, the
context and legislative history of ORS 124.060 demonstrate
that the legislature did not intend the term “psychologist” to
include a social worker.
First, context: ORS 124.050(9) specifies who
qualifies as a “public or private official” required by ORS
124.060(1) to report suspected elder abuse. Significantly, it
differentiates between psychologists and social workers. It
provides, in relevant part:
“ ‘Public or private official’ means:
“…
“(d) Employee of the Oregon Health Authority, local
health department or community mental health program.
“…
“(g) Regulated social worker.
“…
“(k) Licensed professional counselor or licensed marriage and family therapist.
“…
“(n) Psychologist.”
556 State v. Judd
ORS 124.050(9). That the legislature distinguished between
psychologists and social workers—as well as between psychologists and other types of persons who provide counseling services—is a strong indication that the legislature did
not view social workers (or other nonpsychologists providing
mental health services) as psychologists for the purposes of
ORS 124.060. Had the legislature intended to take a different tack in ORS 124.060 than the one it took in ORS
124.050(9), making the word “psychologist” a catch-all term
encompassing all those who provide mental health services, we expect that it would have been more explicit about
it.
What context signals, legislative history confirms.
The legislature enacted the exceptions to the elder abuse
reporting requirements contained in ORS 124.060(2) in
2009; as initially enacted in 1981, the statute contained
no exceptions to the reporting requirement. Former
ORS 410.630 (1981), renumbered as ORS 124.060 (1995).
Contemplating the scope of the exceptions, John McCully,
who represented the Oregon Psychiatric Association, and
Representative Chip Shields, discussed how the provision,
as written, extended only to psychiatrists and psychologists,
and not to other providers of mental health services, including social workers:
“[SHIELDS]: So with a licensed accredited social
worker [the exemption] would not apply to them—they
would have to report even if they were in the same kind of
therapeutic relationship?
“[MCCULLY]: Madam Co-Chair, Mr. Co-Chair, that
is correct. The way this is written only psychologists and
psychiatrists have that privilege.
“[SHIELDS]: Hmm, okay—that just—it’s kind of too
late in the game and probably was something that was
hashed out in the policy but it seems to me that a lot of the
therapeutic work that’s done these days is done by counselors and social workers, psychiatrists come in and prescribe
but they often do not have the therapeutic relationship
directly as much as they might have ten or fifteen years
ago, and it might just be something we look at next session
to see if that’s the perfect fit.”
Cite as 301 Or App 549 (2019) 557
Audio Recording, Joint Committee on Ways and Means,
Subcommittee on Public Safety, SB 670, June 15, 2009, at
12:45 (statements of John McCully and Rep Chip Shields),
http://olis.leg.state.or.us (accessed Oct 15, 2019).
In sum, we see no indication that the legislature
intended the word “psychologist” in ORS 124.060 to include a
social worker such as Jones. For that reason, ORS 124.060(2)
did not except Jones from the reporting requirement contained in ORS 124.060(1), and ORS 124.060(1) abrogated
defendant’s OEC 504 privilege at least insofar as to allow
Jones to make the report required by ORS 124.060(1).
That leaves the question of how far that abrogation extends. That is, did the legislature intend to abrogate
the privilege so as to permit evidentiary use of defendant’s
statements to Jones in the context of a judicial proceeding?
Defendant contends that, if the duty to report elder abuse
under ORS 124.060 abrogates the psychotherapist-patient
privilege under OEC 504, then the privilege is only abrogated
to the extent that the psychotherapist must file a report; any
disclosure by the psychotherapist beyond the report would
violate the defendant’s privilege. In support of her argument, defendant points out that the child abuse reporting
statute is similarly written, but, under ORS 419B.040(1),
it specifically allows evidence of child abuse to be admitted
in a judicial proceeding notwithstanding privilege, while
the elder abuse statute only requires an initial report. The
state counters that reading the duty to report as ending
with the making of the report frustrates the purpose of the
statute. The text, context, and legislative history of ORS
124.060 show that defendant’s construction of the statute is
correct.
As noted, the state and defendant all agree that
Jones was a psychotherapist as defined by OEC 504 because
defendant consulted Jones for the purpose of receiving
mental-health treatment and Jones was authorized to provide it. Jones was, therefore, bound by psychotherapist-patient privilege, and any disclosure of those communications required a waiver or statutory exception to that
privilege. That exception came in the form of a statutorily
558 State v. Judd
mandated requirement to report suspected elder abuse
under ORS 124.060(1):
“Any public or private official having reasonable cause
to believe that … any person with whom the official comes
in contact has abused a person 65 years of age or older,
shall report or cause a report to be made in the manner
required in ORS 124.065.”
Thus, Jones properly reported defendant’s confession notwithstanding the privilege because the legislature mandated that she must do so.
Notably absent from the elder abuse statutes is any
provision indicating explicitly that the legislature intended
to abrogate otherwise applicable privileges for purposes
other than an initial report. This silence suggests that the
abrogation extends only so far as authorized by ORS 124.060
for the making of a report.
The state acknowledges that the legislature did not
expressly provide that it was abrogating the privilege to
allow for the disclosure of otherwise privileged statements
outside the context of an initial report, but argues that we
should infer that that was the legislature’s intent from ORS
124.075(1), which provides:
“Anyone participating in good faith in the making of a
report of elder abuse and who has reasonable grounds for
making the report shall have immunity from any criminal or civil liability that might otherwise be incurred or
imposed with respect to the making or content of such
report. Any such participant shall have the same immunity with respect to participating in any judicial proceeding
resulting from such report.”
(Emphasis added.) The state argues that, by granting immunity from suit for participation in the judicial process, ORS
124.075(1) anticipates that a person who files a report would
properly be required “to provide evidence in the ensuing
investigation and criminal proceeding.” This, according to
the state, signals the legislature’s intention to abrogate the
OEC 504 privilege for the purpose of judicial proceedings
that follow a report.
Cite as 301 Or App 549 (2019) 559
For two reasons, we reject that contention. First,
the state’s argument overlooks the fact that many of the
people required to report elder abuse are not subject to any
sort of evidentiary privilege. The list of officials who are
required to report abuse under ORS 124.050(9) is long, and
immunity for mandatory reporters from criminal and civil
liability applies mostly to categories of public and private
officials who typically will not be bound by any sort of privilege at all; members of the legislative assembly, firefighters,
and peace officers, just to name a few, are all mandatory
reporters who would not be bound by privilege but would
still benefit from immunity to suit. ORS 124.050(9)(e), (L),
(m). For that reason, it is difficult to infer from the legislature’s decision to provide immunity to mandatory reporters
a decision to abrogate otherwise applicable privileges that
may apply to communications with some subset of mandatory reporters.
The state further contends that allowing only a
report to be made without further participation in judicial proceedings would frustrate the purpose of the statute
because that would not protect the elderly. However, notification of authorities in the form of a mandatory report would
still protect the victim in many instances simply by virtue
of involving the authorities. In other words, it is not unreasonable to think that the legislature could have determined
that it could adequately protect the elderly by abrogating
applicable privileges to require reporting but no more, striking a balance between the need to protect the elderly and
the need to encourage people to seek mental-health treatment by ensuring that communications made in the course
of such treatment remain privileged.
All of that aside, however, the enactment history of
the elder abuse statutes demonstrates that the legislature
expressly considered and rejected abrogating otherwise-applicable privileges outside the context of an initial report,
as the legislature had done in the child abuse reporting statutes on which it modeled the elder abuse reporting statutes.
The child abuse reporting statutes were enacted in
1971 and included the provision that made certain privileges
not grounds for excluding evidence. Former ORS 418.775
560 State v. Judd
(1971), repealed by Or Laws 1993, ch 546, § 141.1 The elder
abuse reporting statutes were enacted 10 years later with
House Bill (HB) 2865 (1981), and their wording mirrored
the child abuse statutes, except they did not contain a provision providing that certain privileges were not grounds
for excluding evidence. See, e.g., former ORS 410.630 (1981).
The legislative history shows that the original version of HB
2865 included a provision modeled after former ORS 418.775
(1971), but that that provision was intentionally deleted
after extensive discussion by the Senate.
As first proposed, section 10 of HB 2865 provided:
“In the case of abuse of any elderly person, the physician-patient privilege, the husband-wife privilege, and the privilege extended under ORS 44.040 shall not be a ground for
excluding evidence regarding the abuse of the elderly person, or the cause thereof, in any judicial proceeding resulting from a report made pursuant to section 3 of this Act.”
Exhibit B, House Committee on Aging and Minority
Affairs, HB 2865, Apr 14, 1981 (accompanying statement
of Rep Joyce Cohen, who sponsored the bill). After the legislature discussed some of its concerns regarding whether
section 10 would require clergy members to report abuse,
William Perrin—who was Vice Chairman of the Joint
State Legislative Committee of the American Association
of Retired Persons and the National Retired Teachers
Association in Oregon, and who requested that HB 2865 be
drafted—clarified how section 10 came to be in the bill:
“Now there was some discussion, as I remember it, this section 10. … One of the reasons that we went to this law,
it was considered to be—child abuse—a satisfactory thing
maybe to tie into because we had something that was operating. That’s all I have.”
Tape Recording, Senate Committee on Human Resources/
Aging, HB 2865, May 7, 1981, Tape 2, Side A (statement of
1
In particular, former ORS 418.775(1) (1971) provided:
“In the case of abuse of a child, as defined in ORS 418.740, neither the
physician-patient privilege nor the husband-wife privilege shall be a ground
for excluding evidence regarding a child’s abuse, as defined in ORS 418.740,
or the cause thereof, in any judicial proceeding resulting from a report made
pursuant to 418.750.”
Cite as 301 Or App 549 (2019) 561
William Perrin). Section 10 was therefore in the first draft
of the elder abuse reporting bill simply because that bill was
modeled after the child abuse reporting bill.
The Senate went on to discuss section 10 in greater
detail, observing that HB 2865’s intent was to require
observers to report, that that intent was met by other sections of the bill, and that section 10 was too problematic to
leave in the bill:
“[Burns:] Mr. Chairman and members of the committee, my name’s Keith Burns. I represent the Oregon State
Bar, and this problem raised under section 10 was brought
to my attention this morning. I—Representative Cohen and
Kathleen Beaufait and I have discussed this and, without
going into a great deal of detail, it was our mutual conclusion that probably the best thing to do is to delete the
section. And if that’s the consensus of the committee, I’ll
not take more of your time. I could go into an explanation
of it—
“[Sen Day:] There’s some major constitutional problems with it.
“[Burns:] It is, and the legislature has been very protective of this and if you read ORS 44.040 setting forth the
reasons why they’re there, and really what you’re talking
about is trying to get people who—who would ordinarily
be most likely to observe abuse to report. And that’s taken
care of in the early part of it. And this part merely gets into
the places where you would ordinarily encourage people to
divulge things.”
Tape Recording, Senate Committee on Human Resources/
Aging, HB 2865, May 7, 1981, Tape 1, Side B (statements of
Keith Burns and Sen L. B. Day). The legislators then discussed directly how far it should go in abrogating otherwise
applicable evidentiary privileges:
“[Sen Day:] I would delete section 10. That would be
my feeling and I believe there are a number—a variety
of reasons why, through this hearing, why that should be
done.
“[Chairman McCoy:] Yeah, okay. We’ll take that into
consideration.
562 State v. Judd
“[Nancie Fadeley:] Mr. Chairman, I have some questions for amendment drafting purposes. The privileged
relationship comes in twice in this bill. Once in section 10
where you’re talking about whether it should be excluded
from evidence, and section 1 under the duty to report. …
What I want to know is, do you want to make it clear that
this duty to report is also subject to the privileged relationship? …
“…
“[Sen Roberts:] I’ll express my opinion, and that is
that I do not think that the—that the privilege should
be extended as far as reporting is concerned. … If some
person who is helpless is being beaten up, I think it ought
to be at least reported. Now whether or not we go as far
as section—whether or not we would go as far as in section 10 to require some of these individuals to actually
testify with reference to some—one of these confidential
communications—I think that’s a little bit farther. I think
that the fact of reporting, however, so that it can be investigated is a—that the privilege should not be extended that
far.
“[Sen Day:] Mr. Chairman, that’s what I was trying
to say. I think that the direction is, leave the first section
alone, take out section 10, and remove the word ‘criminal’
on line three, and I think that you would have a better bill.”
Tape Recording, Senate Committee on Human Resources/
Aging, HB 2865, May 7, 1981, Tape 1, Side B (statements of
Sen Roberts, Nancie Fadeley, and Sen L. B. Day).
As evidenced by that discussion, legislators contemplated that, by removing the section that would have
abrogated privilege for the purpose of admitting evidence
in a judicial proceeding, HB 2865 would be left with only
the requirement that an initial report be made to prompt an
investigation. Consistent with that discussion, the Senate
voted unanimously in favor of deleting section 10 one
week later. Tape Recording, Senate Committee on Human
Resources/Aging, HB 2865, May 14, 1981, Tape 2, Side B.
Because the elder abuse reporting statutes only abrogate
privileged communications to the extent that a report be
submitted, the trial court erred in denying defendant’s
motion to exclude her statements to Jones.
Cite as 301 Or App 549 (2019) 563
In view of that enactment history and, in particular, the removal of the provision that would have abrogated otherwise-applicable privileges so as to allow for the
introduction of otherwise-privileged statements in judicial
proceedings resulting from a report of elder abuse, we conclude that the legislature intended to abrogate otherwise-applicable privileges, including the privilege contained in
OEC 504, only insofar as to allow for an initial report of
suspected elder abuse. The legislature did not abrogate the
privilege any further. The trial court erred in concluding
otherwise.
B. Corpus Delicti
Defendant also assigns error to the trial court’s
determination, in the course of its ruling on her motion
to exclude her statements to Jones under Oregon’s corpus
delicti rule, ORS 136.425, that those statements were confessions that were sufficiently corroborated to satisfy the
corpus delicti rule. Because the issue may arise on remand,2
we address it briefly.
As we have explained, this court reviews a trial
court’s rulings; a trial court’s “various reasons for its ruling” on a motion “are not independently assignable as error.”
Oak Crest Const. Co. v. Austin Mutual Ins. Co., 137 Or App
475, 478 n 2,
905 P2d 848 (1995), aff’d,
329 Or 620, 626,
998
P2d 1254 (2000). In this instance, the court’s ruling was its
denial of defendant’s motion to exclude her statements under
the corpus delicti rule, ORS 136.425(2). The court’s reason
for that ruling was its determination that defendant’s statements to Jones, which the court determined were confessions, were sufficiently corroborated to satisfy ORS 136.425.
Regardless of whether the trial court was correct
in its reason denying defendant’s motion to exclude, it was
correct to deny the motion. That is because the corpus delicti
rule, as embodied in ORS 136.425(2), is not a basis for excluding evidence. By its terms, ORS 136.425(2) speaks to the
sufficiency of the evidence needed to support a conviction:
2
Below, the state argued that defendant had waived the OEC 504 privilege,
but the trial court did not reach the issue of waiver after it concluded that the
elder abuse statutes abrogated the privilege.
564 State v. Judd
“Except as provided in ORS 136.427, a confession alone is
not sufficient to warrant the conviction of the defendant
without some other proof that the crime has been committed.” ORS 136.425(2); see also State v. Wenning, 282 Or App
21, 23,
386 P3d 1 (2016), rev den,
360 Or 852 (2017) (dismissing state’s appeal from pretrial order determining that
statements were confessions requiring corroboration under
ORS 136.425(2), in part because ruling was not one that
suppressed or excluded evidence so as to make it appealable under former ORS 138.060 (2016), renumbered as ORS
138.045 (2017)).
Because ORS 136.425(2) does not provide a basis
for excluding evidence, the trial court was correct to deny
defendant’s motion. As for whether the evidence presented
at trial will be sufficient to support defendant’s conviction
in view of ORS 136.425(2), that is an issue the resolution of
which must await trial.
Reversed and remanded.
