Opinion
472720; CA A31578
Argued and submitted September 12, 1984
Reversed and remanded November 7, 1984
Appeal from District Court, Marion County.
Tom Beck, Judge.
Jerry Meier, Salem, argued the cause and filed the brief for appellant.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and James E. Mountain, Jr., Solicitor General, Salem.
Before Joseph, Chief Judge, and Warden and Newman, Judges.
PER CURIAM
Reversed and remanded for new trial.
Defendant was convicted of sexual abuse in the second degree. At trial, the state offered a concededly voluntary statement defendant made after his arrest describing the incident and a variety of unrelated sexual experiences and fantasies. Defendant, albeit inartfully, objected to admission of the whole statement, because the portions describing his deviant sexual experiences were irrelevant or more prejudicial than probative. The trial court refused to consider defendant's argument, because he had not moved pretrial to suppress the particular irrelevant or prejudicial portions. Although a trial court's decision whether to admit or refuse evidence is generally a matter of discretion, State v. Madison, 290 Or. 573, 624 P.2d 599 (1981), it is necessary that the record show that the court did exercise discretion. The statement in its entirety appears to have been admitted in evidence only because defendant did not move to suppress. Failure to challenge portions of the statement pretrial did not prevent defendant from making the objections he did make at trial. See ORS 135.037; State v. Browder, 69 Or. App. 564, 687 P.2d 168 (1984).
Reversed and remanded for a new trial.