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Filed: November 30, 2012
IN THE SUPREME COURT OF THE STATE OF OREGON
STATE OF OREGON, Plaintiff,
v.
THOMAS HARRY BRAY, Defendant.
J. B., Appellant,
v.
THOMAS HARRY BRAY; BRIGID TURNER, prosecuting attorney; and STATE OF OREGON,
Respondents.
(CC 11FE1078; SC S60840) En Banc On interlocutory appeal pursuant to ORS 147.537.* Submitted November 9, 2012. Jennifer Coughlin, Brother, Hawn & Coughlin, Bend, filed the Notice of
Interlocutory Appeal for Appellant.
Stephen A. Houze, Portland, filed the Respondent/Defendant's Response to Notice of Interlocutory Appeal.
Brigid Turner, Deputy District Attorney, Bend, filed the Prosecuting Attorney's Response to the Interlocutory Appeal.  With her on the response was Patrick Flaherty, Deschutes County District Attorney.
Timothy A. Sylwester, Assistant Attorney General, Salem, filed the Attorney General's Response to the Notice of Interlocutory Appeal. With him on the response were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
DE MUNIZ, J.
The notice of interlocutory appeal is construed to be a petition for review under ORS 147.539, and the petition for review is allowed.  The order of the circuit court is affirmed.
*Appeal of order from Deschutes County Circuit Court, Roger J. DeHoog, Judge.
DE MUNIZ, J.
2  This matter is before the court on an interlocutory appeal of an order  
3  involving a crime victim's rights.  See ORS 147.537 (allowing such appeals).  In his  
4  criminal case, defendant unsuccessfully sought an order compelling the victim to produce  
5  the hard drive of her laptop computer so that the defense could obtain a forensic  
6  examination of the hard drive.  After his conviction, defendant requested that the trial  
7  court order that an already-existing copy of the hard drive, preserved in a related civil  
8  case, be placed under seal in the trial court record of defendant's criminal case, for  
9  purposes of appellate review.  The trial court granted that motion and rejected the victim's  
10  claim that the order violated her right as a crime victim under Article I, section 42, of the  
11  Oregon Constitution to refuse a discovery request.  We conclude that the trial court's  
12  order did not violate the victim's rights under Article I, section 42.  Accordingly, we  
13  affirm.  
14  The facts for purposes of our review are undisputed.  Defendant has been  
15  convicted of two counts of first-degree rape, two counts of first-degree sodomy, one  
16  count of strangulation, and one count of fourth-degree assault for an attack on the victim  
17  that occurred on or about February 25, 2011.  
18  The morning after the attack and before the victim called the police, she  
19  used her laptop computer to perform a Google search.  The victim's statements regarding  
20  the Google search that she performed and the reasons she did so have varied over time.  
21  For example, the police officer who initially interviewed the victim the morning after the  
22  attack testified that "she * * * told me that she Googled Oregon law about rape to see if  

what happened counted."  At trial, however, the victim stated that her Google search was
2  formulated to "give me the information of what happens to you when you report [a  
3  rape]."  
4  In November of 2011, while defendant's criminal case was pending, the  
5  victim filed a civil action against defendant.  In that civil case, the parties prepared two  
6  copies, or "clones," of the hard drive from the victim's laptop.  At the time that the clones  
7  were made, the victim already had made attempts to securely delete data from the hard  
8  drive.  The victim's attorney took possession of the clones in accordance with a protective  
9  order that the trial court had entered in the civil case.  
10  In the criminal case, defendant sought without success to obtain from  
11  Google, Inc., information about the search performed by the victim the morning after the  
12  attack.  See State v. Bray, 352 Or 34, 36-38, 279 P3d 216 (2012) (discussing those  
13  attempts).1  Finally, defendant issued a subpoena duces tecum to the victim to require her  
14  to bring her laptop computer or a clone of the hard drive to the criminal trial.  When the  
15  victim failed to do so, defendant moved to compel the victim to comply with the  
16  subpoena, but the trial court denied that motion.  Defendant then moved to compel  
17  production of one of the clones that had been prepared in the civil case so that it could be  
18  placed in the criminal case record as a sealed exhibit for possible appellate review. The  
19  trial court also denied that motion, in part because the clone potentially was available in  
1  In that regard, the trial court entered an order stating in part that "the Court  
FINDS that the Google search records are exculpatory."  

1 the civil case. 2 After defendant was convicted, the victim was quoted in the media as 3 stating that she intended to dismiss her civil action against defendant.  Fearing that 4 dismissal of the civil action would vacate the protective order and lead to the destruction 5 of the clones, defendant filed an emergency motion in the criminal case asking the trial 6 court to reconsider its order denying his motion to require that one of the clones be placed 7 under seal in the criminal case record.  Defendant contended that, to obtain appellate 8 review of the trial court's order refusing to enforce the subpoena duces tecum against the 9 victim, the clone needed to be part of the record.  In support, defendant cited State v.
10 Harvey, 203 Or App 343, 347, 125 P3d 792 (2005), rev den, 340 Or 359 (2006) 11 ("[D]efendant did not ensure that the records were sealed and made a part of the file.  12 Because of that omission, we cannot determine whether any error committed by the trial 13 court in failing to inspect the records is prejudicial, as we are obligated to do.  14 Consequently, the issue is not preserved for our review.") (Citations omitted.). 15 The trial court held a hearing on October 12, 2012.  At that hearing, the 16 court indicated that it was inclined to grant defendant's motion.  The court was 17 concerned, however, that the victim might not have received notice of the hearing, 18 because neither the victim nor her attorney had appeared.2 Later the same day, the trial
2  In fact, the victim had not been given notice of the October 12 hearing.  On  
appeal, however, the victim does not assert that that failure to give notice violated any of  
her rights as a victim.  

1  court sent an e-mail to all counsel, including the victim's attorney, noting its intended  
2  ruling and directing that the proposed order be circulated to the victim's counsel for  
3  possible objections.  
4  The victim then filed with the trial court a claim that the court's order  
5  requiring her to provide a clone violated her rights as a victim under Article I, sections 42  
6  and 43, of the Oregon Constitution.  See ORS 147.515 (setting out process to file claim).  
7  The trial court entered an order to show cause why it should not withdraw its intent to  
8  issue the order requiring a clone to be placed under seal in the criminal case record. See  
9  ORS 147.517(2) (so requiring).  Both the victim and defendant responded to the motion.  
10  The trial court held a hearing on November 2, 2012.  After hearing the  
11  arguments of the parties, the court explained that it had concluded that an order requiring  
12  a clone to be placed under seal in the criminal case record would not violate the victim's  
13  rights. In so ruling, the court stated:  
14  "So my expectation would be that they [sic; a clone] would be made part of  
15  the criminal court file, they would be sealed, they would not be released to  
16  [defense counsel] or to anyone else without further review but that they --it  
17  would be preserved in the event that something about the appellate process  
18  required the Court of Appeals to review them or resulted in an order from  
19  the Court of Appeals directing the trial court to permit that type of  
20  examination."  
21  The court further explained that it agreed that, under Harvey "and other cases, it really is  
22  the only way to ensure that the material is protected so that [defense counsel] can pursue  
23  whatever appellate rights [defendant] may have in regards to the underlying motion of  
24  whether it was something he was entitled to present at trial[.]"  
25  On November 5, the trial court signed an order denying the victim's claim  

1  of a violation of her rights.  The order largely tracked the reasons for the court's ruling as  
2  stated during the hearing.  The order provided, in part:  
3  "The hard drive clone at issue would be held under seal in the file,  
4  and its contents could not be disclosed to or examined by anyone --not  
5  even the trial court --absent further order by a court.  Thus, the mere  
6  requirement that it be produced for preservation purposes does not subject  
7  the victim to discovery by defendant or anyone acting on his behalf.  Rather  
8  than require the victim to disclose or make anything available for  
9  defendant's inspection, the order will effectively maintain the status quo."  
10  (Citation and footnote omitted.)  Relying on Harvey, the court further concluded that  
11  failing to preserve the hard drive might deprive defendant of his ability to obtain  
12  appellate review of the trial court's earlier order denying the motion to compel.  
13  Also on November 5, the trial court signed an order, captioned for both the  
14  civil and criminal cases, directing the victim's attorney to produce one clone to be placed  
15  in a sealed envelope in the criminal trial court record.  The court ordered that the  
16  envelope "shall remain sealed until further order of a [c]ourt of competent jurisdiction."  
17  The court explained its reasons for doing so as follows: "There is a substantial risk that  
18  [d]efendant would suffer irreparable harm should there be a destruction of the clones, as  
19  he would likely be unable to pursue appellate or post-conviction remedies relating to their  
20  content."  
21  The victim filed a notice of interlocutory appeal from the trial court's order.  
22  See ORS 147.535(5) (authorizing victim to appeal order); ORS 147.537(1) (appellate  
23  review commenced by filing notice of interlocutory appeal).  She asserts in this court that  
24  the order requiring the clone to be placed in the criminal court record under seal violates  
25  her rights as a crime victim under Article I, section 42, of the Oregon Constitution.  

Defendant and the prosecuting attorney both filed responses.  See ORS
2 147.537(12) (allowing "a respondent" to respond within seven days); ORS 147.537(2) 3 (defendant and persons described in ORS 147.537(6)(a)-(f) are respondents); ORS 4 147.537(6)(e) (listing the prosecuting attorney).  The Attorney General filed a response3 5 that does not address the merits, but argues instead that the current procedural posture of 6 this case in this court is improper. 7 As noted above, the victim filed in this court what she styled as an 8 interlocutory appeal under ORS 147.537.  The Attorney General asserts, however, that 9 this case does not qualify for an appeal under that section.  As we shall explain, the
10 Attorney General is correct.  This matter should have been filed as a petition for review
11 under ORS 147.539.  
12 Article I, section 42, of the Oregon Constitution authorizes the legislature
13 to enact laws to effectuate the rights granted by that section.  Or Const, Art I,

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