State v. Graville

728 P.2d 561 (1986)

82 Or.App. 253

STATE of Oregon, Respondent, v. Paula Ann GRAVILLE, Appellant.

10-84-07904; CA A38105.

Court of Appeals of Oregon.

Argued and Submitted September 30, 1986.

Decided November 12, 1986.

Reconsideration Denied January 16, 1987.

*562 Lawrence J. Hall, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Jonathan H. Fussner, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., James E. Mountain, Jr., Sol. Gen., and Jeff Ellis, Certified Law Student, Salem.

Before WARDEN, P.J., and VAN HOOMISSEN and YOUNG, JJ.

WARDEN, Presiding Judge.

Defendant appeals her conviction for sexual abuse in the first degree, ORS 163.425(1)(a)(A), contending that the trial court erred in denying her access to the Children's Services Division (CSD) file pertaining to the victim and in requiring her to submit to random polygraph examinations as a condition of probation.

The CSD file is subject to discovery. State v. Warren, 81 Or. App. 463, 726 P.2d 387 (1986). Because discovery was denied, the judgment of conviction is vacated, and the case is remanded to the trial court for an in camera examination of the file to determine whether it contains any material that would either exculpate defendant or aid in cross-examination of witnesses. If the file contains such material, and if defendant has been prejudiced by not having had that material, then the court shall order a new trial. Otherwise, the court shall enter a new judgment of conviction. State v. Warren, supra; State v. Johns, 44 Or. App. 421, 606 P.2d 640, rev. den. 289 Or. 1 (1980).

We address defendant's second assignment of error only because the issue may arise on remand. As a condition of probation a court may impose the requirement that the probationer submit to polygraph examinations, if it is reasonably necessary to accomplish the purpose of probation. State v. Age, 38 Or. App. 501, 508-509, 590 P.2d 759 (1979); see State v. Behar, 39 Or. App. 503, 592 P.2d 1056 (1979). Defendant urges us to overrule Age and Behar, citing as authority State v. Brown, 297 Or. 404, 687 P.2d 751 (1984), which held only that "upon proper objection polygraph evidence shall not be admissible in any civil or criminal trial in this state or other legal proceeding subject to the rules of evidence under the Oregon Evidence Code." 297 Or. at 445, 687 P.2d 751. Brown does not prohibit the use of polygraph examinations as a condition of probation.

Judgment vacated; remanded for further proceedings consistent with this opinion.