State v. Harrison

340 P.3d 777, 267 Or. App. 571, 2014 Ore. App. LEXIS 1729
CourtCourt of Appeals of Oregon
DecidedDecember 17, 2014
Docket12C42527; A153078
StatusPublished
Cited by6 cases

This text of 340 P.3d 777 (State v. Harrison) 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. Harrison, 340 P.3d 777, 267 Or. App. 571, 2014 Ore. App. LEXIS 1729 (Or. Ct. App. 2014).

Opinion

NAKAMOTO, J.

Two of defendant’s great-grandchildren, five-year-old K and four-year-old A, separately reported that defendant had sexually abused them. Following a consolidated jury trial, defendant was found guilty on all charges related to A and not guilty on the single charge related to K. Defendant appeals the resulting judgment of conviction for two counts each of sodomy in the first degree, ORS 163.405, and sexual abuse in the first degree, ORS 163.427. First, he argues that the trial court erred by admitting A’s hearsay statements under OEC 803 (18a) (b) because the state failed to satisfy the notice requirements of that statute; we reject that assignment of error without discussion. Second, he assigns error to the trial court’s failure to strike, sua sponte, certain testimony by one of the state’s witnesses. The state elicited the testimony without defendant’s objection, but, according to defendant, it amounted to an impermissible comment on A’s credibility. For the reasons that follow, we conclude that defendant has not established that the trial court committed plain error. We thus affirm.

We state the facts necessary to provide context for the testimony at issue on appeal. K told her mother that defendant “tickles me down there [,]” pointing to her vagina. K’s mother took her to Liberty House, a child abuse assessment center, where she was interviewed. No charges were filed against defendant at that time. Subsequently, A told her mother that defendant made her put his penis in her mouth and touch his genitals. A’s mother filed a report with the police, who referred A to Liberty House. There, A repeated the abuse allegations to a Liberty House interviewer, Mills. A’s physical exam did not reveal physical signs of abuse. A police investigation ensued. The detective assigned to the case did not interview A because “[t]he interview had already been conducted by Liberty House [.]” Defendant was ultimately arrested and charged with various counts of sexual abuse and sodomy.

At trial, the victims and Mills testified on behalf of the state. On appeal, defendant challenges for the first time the trial court’s failure to strike a portion of Mills’s testimony. In evaluating whether the trial court plainly erred, [573]*573“we must consider the entire context” in which the challenged comments were given. State v. Corkill, 262 Or App 543, 544, 325 P3d 796, rev den, 355 Or 751 (2014). We thus describe the trial proceedings involving Mills’s testimony in some detail.

Mills, a “nationally certified counselor,” stated that at Liberty House his “specialty or * * * expertise” was interviewing complainants. Mills estimated that he had interviewed “a couple hundred” children aged five or six years old. On direct examination, the prosecutor asked Mills to describe the specificity of A’s disclosure of abuse during his interview of her:

“[PROSECUTOR:] Was this a descriptive disclosure, not so descriptive disclosure? How would you describe it?
“A. I would — the—I’m in court and I’m being honest. The word that comes to my mind is this is a solid description from a child this age. I would say that her development seemed solid enough. And I have talked with kids of this age who have given less description than she did.”

On cross-examination, defendant questioned Mills, in part, concerning false accusations by children:

“[DEFENSE COUNSEL:] Okay. Now, you had testified that you have interviewed hundreds of children. And have you, through your experience of these interviews of hundreds of children, encountered incidences where the children had made false accusations against the person of interest?
“A. Because I’m in court and I just want to be clear, I have probably interviewed a total of 3(00) to 400 kids. Of that I can’t give you a definite number of, you know, how many are five or six. But I would say at least 100 to probably 200 just so I’m clear.
“In terms of kids making a false or — by false accusation; at Liberty House we don’t make judgments or determinations about statements. Whether in the end whoever that— whoever the end group is or person is outside of Liberty House that makes the determination if it’s true or not; we don’t do that. We simply gather whatever information we can, and then report back, like put it in the report and do these sorts of things.
[574]*574“Q. And if you feel that misconduct has occurred, is this something that you would then refer to the District Attorney’s Office?
“A. We send our reports back to the referring agencies. And I think technically those agencies then refer on to the DA’s office.”

Defendant also attempted to question Mills about whether a child’s statement that he or she wanted to return to the alleged abuser is a factor in determining whether abuse has occurred:

“[DEFENSE COUNSEL:] What about a child, in your experience, have you had a child that says that they actually want to return to the people or the place where the alleged incidences occurred?
“A. Yes.
“Q. Okay. And is that a factor in your analysis of determining whether or not abuse did or did not occur?

However, the prosecutor objected:

“[PROSECUTOR:] Your Honor, I don’t think that he can talk about his analysis of whether or not something did or did not occur. I don’t think a witness can talk about whether or not they think something did or did not occur under [State v. Southard, 347 Or 127, 218 P3d 104 (2009)]. And that would probably open some doors to evidence defense counsel doesn’t want me to put in.”

Defendant then abandoned that line of questioning.

On redirect, Mills gave the testimony that defendant argues impermissibly commented on A’s credibility:

“[PROSECUTOR:] And as far as false accusations, based on your training and experience, statistically what is the average of false accusations?
“A. The exact numbers, from my experience, are unclear. Excuse me. What is clear is that children rarely lie about these things. And over — I believe it’s over 95 percent of the time when child — when a child discloses information about being sexually abused, it’s true.
“Q. Over 95 percent.
[575]*575“A. I believe the statistic at Liberty House is 96 to 98 percent of the time when a child makes a disclosure about abuse, there’s truth to it. Some of those details that we talked about, maybe numbers of times or exactly where this happened when might be a little bit confusing for a child of [A’s] age. But—
“Q. The generality of abuse is—
“A. Generality, correct.”

In the state’s rebuttal to defendant’s closing argument, the prosecutor called the jury’s attention to the disputed testimony. In particular, the prosecutor argued that, “statistically,” there was a 95 percent chance that the victims were telling the truth.

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Cite This Page — Counsel Stack

Bluebook (online)
340 P.3d 777, 267 Or. App. 571, 2014 Ore. App. LEXIS 1729, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-harrison-orctapp-2014.