State v. Criswell

386 P.3d 58, 282 Or. App. 146, 2016 Ore. App. LEXIS 1400
CourtCourt of Appeals of Oregon
DecidedNovember 9, 2016
DocketCR070235; A151745
StatusPublished
Cited by7 cases

This text of 386 P.3d 58 (State v. Criswell) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Criswell, 386 P.3d 58, 282 Or. App. 146, 2016 Ore. App. LEXIS 1400 (Or. Ct. App. 2016).

Opinion

GARRETT, J.

Defendant appeals a judgment of conviction for six counts of sexual abuse in the first degree, ORS 163.427, and six counts of sodomy in the first degree, ORS 163.405. In a prior appeal, we vacated defendant’s earlier judgment of conviction in light of State v. Southard, 347 Or 127, 218 P3d 104 (2009), and remanded the case to the trial court. Defendant was then retried, convicted on fewer counts than in the first trial, and sentenced to 844 months in prison—substantially longer than his original sentence of 450 months. On appeal, defendant assigns error to (1) the trial court’s denial of his motion to dismiss on double-jeopardy grounds, (2) certain evidentiary rulings at trial, and (3) the imposition of a harsher total sentence in the absence of express findings by the trial court to justify the disparity.

As explained below, we reject defendant’s double-jeopardy and evidentiary challenges. We conclude, however, that the trial court plainly erred by imposing a sentence in excess of defendant’s original sentence without making findings on the record to permit a conclusion that the sentence was not the product of vindictiveness. We therefore remand for resentencing.1

FACTS

We limit our discussion to those facts that are relevant to this appeal. The counts of conviction pertain to three victims—M, C, and L. Defendant’s brother and his brother’s wife are the adoptive parents of M, C, and L, along with several other children who joined the family by adoption or by birth. M, C, and L are not birth siblings and came into the Criswell home at different times. Starting in October 2004, the three children were regular visitors to the home of defendant and his wife, sometimes spending Saturday nights there. In December 2006, M, C, and L were spending time in M’s bedroom outside the presence of their parents. M yelled for her mother to come into the room, and C told her mother that defendant had sexually abused her. Mother [149]*149called father into the room, and C repeated the statement. M told her mother that she had previously tried to tell her parents that defendant was doing inappropriate things to C. M told her parents that she herself had “always fought [defendant] off.” The parents asked L whether anything had happened to her, and L did not say anything initially. A few days later, L communicated to her mother that defendant had sexually abused her as well.2

Mother contacted the Department of Human Services (DHS) two days after C’s disclosure. Several days later, a detective and a DHS worker interviewed some of the Criswell children at school. During the interview with C, she told them that defendant had abused her approximately “50 times,” and that she stated that she felt something “wet” during the abuse. Neither the detective nor the DHS worker could recall who introduced the term “wet.”

During the trial, M testified that defendant touched her thighs, legs, chest, stomach, arms, back, neck, and kissed the top of her head. M stated that the touching was over and under her clothing. M also testified that she saw defendant touching C on several occasions. C testified that defendant touched her inappropriately on her thighs and stomach. C testified that defendant would lie behind her and touch her inappropriately, and she felt something go inside her “butt.” C stated that she did not think defendant touched her chest, and that she could not remember whether there was anything “wet.” L testified that defendant touched her chest under her clothes and that defendant placed her hand on his “private area.”

At trial, defendant testified on his own behalf. He denied engaging in any inappropriate contact with M, C, or L.

The jury convicted defendant of one count of sexual abuse in the first degree with respect to M, six counts of sodomy in the first degree with respect to C, and five counts of sexual abuse in the first degree with respect to L. The trial court sentenced defendant to 844 months’ imprisonment.

[150]*150DOUBLE JEOPARDY

In his first assignment of error, defendant argues that the trial court erred in denying his motion to dismiss on double-jeopardy grounds. Defendant argues that retrial was barred because official misconduct caused the preceding mistrial.

We begin with additional facts relevant to defendant’s motion to dismiss. In the weeks following the disclosures, M, C, and L were evaluated at Juliette’s House, a child abuse intervention center. Dr. Moore, a medical doctor, performed physical examinations on both C and L. During C’s examination, C described various forms of abuse by defendant, including penetration of her anus. C also stated that, during the abuse, she “felt something wet.” Moore’s examination of C revealed physical findings consistent with abuse. Moore also examined L, and her physical exam was normal. Dr. Miller, the medical director of Juliette’s House, performed M’s examination. M allowed only a limited physical exam. Warner, a forensic interviewer, conducted interviews of M, C, and L as part of the assessment process at Juliette’s House.

Defendant’s first trial occurred in 2008. The jury convicted defendant on 54 of 64 counts. We vacated and remanded the case for reconsideration in light of Southard, 347 Or at 142 (holding that a physician’s diagnosis of sexual abuse in the absence of physical evidence is inadmissible under OEC 403).3

Defendant’s second trial ended in a mistrial for reasons not pertinent on appeal. The third trial started five days later. As the prosecutor prepared to question Warner, the interviewer from Juliette’s House, the prosecutor alerted the court that she did not have a final, redacted version of the Juliette’s House reports. The prosecutor indicated that she “may still hand a copy of [the reports] to Ms. Warner to just identify that it’s her signature and it’s her copy of [151]*151the report.” Defense counsel stated that he had “no problem with that,” so long as “Ms. Warner has been well-apprised of what to say and *** what subjects to stay away from[.]” The prosecutor replied, “I think [Warner] understands that we’re not to talk about the diagnosis.”

The parties and the court then discussed whether Warner and Moore would be allowed to testify that counseling had been recommended for M, C, and L. Defendant argued that such testimony should not be allowed because it created a “very strong inference” that the children had been diagnosed with sexual abuse. The trial court agreed and ruled that testimony about treatment recommendations for M and L would not be permitted, leaving the question open with respect to C.

On the sixth day of trial, the state called Miller. Miller described M’s assessment process at Juliette’s House:

“It had specifically entailed history gathering, finding what the concerns were regarding [M], taking a detailed past medical history, social history, doing a complete physical examination. Part of our assessment involves an interview that I observe but am not—play an active role in. And using that information, then, to formulate a diagnosis and treatment plan.”

Defendant did not object to Miller’s reference to “a diagnosis and treatment plan.” Shortly afterward, the following exchange occurred:

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Cite This Page — Counsel Stack

Bluebook (online)
386 P.3d 58, 282 Or. App. 146, 2016 Ore. App. LEXIS 1400, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-criswell-orctapp-2016.