State v. Cuevas

326 P.3d 1242, 263 Or. App. 94, 2014 WL 2118622, 2014 Ore. App. LEXIS 683
CourtCourt of Appeals of Oregon
DecidedMay 21, 2014
Docket09082394C; A149668
StatusPublished
Cited by9 cases

This text of 326 P.3d 1242 (State v. Cuevas) 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. Cuevas, 326 P.3d 1242, 263 Or. App. 94, 2014 WL 2118622, 2014 Ore. App. LEXIS 683 (Or. Ct. App. 2014).

Opinion

GARRETT, J.

Defendant was convicted of three counts of first-degree sodomy, ORS 163.405, one count of second-degree sodomy, ORS 163.395, five counts of first-degree sexual abuse, ORS 163.427, and one count of second-degree rape, ORS 163.365. The trial court imposed consecutive sentences on all but two counts, for a total sentence of 569 months. On appeal, defendant argues that the trial court erroneously (1) allowed the state to show the jury videotaped interviews of defendant’s victims; (2) allowed the state to introduce expert opinion testimony from a lay witness; (3) denied defendant’s motion for a mistrial based on the state’s closing and rebuttal arguments; and (4) made certain determinations at sentencing that, defendant argues, should have been submitted to the jury. We reject defendant’s arguments and, accordingly, affirm the judgment.

I. BACKGROUND

Defendant was charged with sexually abusing, sodomizing, and raping two of his stepdaughters, S and K, during the several years that he was married to their mother. S and K both came forward to describe the abuse several years after it was alleged to have occurred.

Of importance to this appeal are two videotaped interviews that S and K gave at the Sexual Trauma Abuse Response Center (STAR Center). In those interviews, both victims reported numerous instances of sexual abuse, some of which resulted in charges against defendant and some of which did not. S also referenced defendant smoking crystal methamphetamine and blowing the smoke into S’s mouth; this conduct was not included in the state’s charges against defendant. In the videotapes, S and K also answered personal background questions about topics including their schooling, hobbies, and pets. S and K both testified at the trial about the sexual abuse; much of that testimony reflected what they had described in the STAR Center interviews.

Before trial, defendant moved to exclude the STAR Center videotaped interviews, arguing that they contained (1) inadmissible hearsay, (2) evidence that was not relevant under OEC 402, (3) evidence that was unfairly prejudicial [97]*97under OEC 403, and (4) evidence of other prior bad acts that was not admissible under OEC 404(3). During a hearing on defendant’s motion, the state conceded, and the trial court ruled, that the videotaped interview of S was hearsay and that the hearsay exception in OEC 803(18a)(b) did not apply.1 The court then played the videotape of K’s STAR Center interview for the record. At the conclusion of the video, defendant objected to several portions of the video. Specifically, defendant argued that, because the interviewer in the video had told K that, during interviews, “we always tell the truth,” the STAR Center staff had effectively vouched for K’s credibility. Defendant also argued that portions of the video in which K provided personal information were irrelevant and prejudicial because they had the potential to unfairly endear K to the jury. Finally, defendant argued that, to the extent K was describing crimes committed against S, the OEC 803(18a)(b) hearsay exception did not apply.

The trial court agreed that K’s descriptions of defendant committing crimes against S were inadmissible hearsay and would need to be redacted. The court ruled that the other portions of the videotape were admissible under OEC 803 (18a) (b), OEC 401, and OEC 403. The court explained its reasoning as follows:

“I don’t view the description of the rules as being vouching. [The staff person] didn’t say anything about whether she believed [K] or not, she simply said, ‘These are the rules. We want you [to] tell the truth, we want you to follow these rules.’ And certainly, I think it’s significant and important for the jury to hear that to understand the setting for the — her later discussion. The same thing with the small talk, if you will, about who [K] is and where [K] lives and so forth. Certainly, if [the staff person] simply walked in, sat down, and says, ‘Okay, tell me about your sexual abuse’ the jury should have the right to understand that also. I think the jury has the right to understand the context in which these discussions took place. I don’t see anything [98]*98prejudicial about that. They are simply, ‘Where do you live? [What] are your favorite classes?’ Those kinds of things. It simply sets the tone and lets the jury understand what the circumstances and the environment [were].”

The state did not introduce either videotape during its case-in-chief. During defendant’s opening statement, defendant’s counsel suggested that the children’s mother had convinced S and K to lie about defendant’s abuse because she was angry about defendant’s infidelity and the fact that he had impregnated another woman. Defendant questioned Ontario Police Detective Rodriguez and criticized the police investigation as deficient in numerous respects. In particular, Rodriguez testified that police had relied almost exclusively on the STAR Center interviews and had not done follow-up interviews with S or K, their mother, defendant, or other family members.

Rodriguez responded to the state’s question about the STAR Center staffs ability to investigate crimes by testifying that he “was satisfied with the interview that took place.” He also explained that he had not personally interviewed S or K because he believed that they would feel uncomfortable speaking to a male police officer and that, based on his past dealings with defendant and his family, he believed that it would have been counterproductive to contact them about the investigation.

Having previously authenticated the two videotaped STAR Center interviews, the state moved to admit them on the ground that, because defendant had made an issue of the adequacy of the investigation, the recordings were admissible for the nonhearsay purpose of showing that Rodriguez’s investigation was adequate. The trial court admitted the recordings over defendant’s objections:

“I’m allowing it in — [defense counsel] raised the issue as to whether or not the length of the interviews [was] sufficient given the timeframe. And I’m going to allow it in so that the jurors can see what the interview consisted of so they can determine whether or not, under the circumstances, it was an appropriate investigation. That’s the issue [the defense has] been raising: [W]as this an appropriate investigation? Did you talk to certain people? The interview wasn’t long enough given the circumstances. Given that issue, the [99]*99content of the interview is significant as to whether it was an appropriately long interview. And so you can’t criticize the length and then not allow the jury to see the content so they can determine whether or not it was an appropriately lengthy interview.”

Before playing the videotapes for the jury, the court issued the following limiting instruction:

“[The tapes are] not being offered to prove the truth of what was being said. In other words, you should not view them from the standpoint of whether or not what is being said is true or not.

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Cite This Page — Counsel Stack

Bluebook (online)
326 P.3d 1242, 263 Or. App. 94, 2014 WL 2118622, 2014 Ore. App. LEXIS 683, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cuevas-orctapp-2014.