State v. Hite

883 P.2d 890, 131 Or. App. 59, 1994 Ore. App. LEXIS 1543
CourtCourt of Appeals of Oregon
DecidedOctober 26, 1994
DocketCR92-185; CA A78011
StatusPublished
Cited by2 cases

This text of 883 P.2d 890 (State v. Hite) 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. Hite, 883 P.2d 890, 131 Or. App. 59, 1994 Ore. App. LEXIS 1543 (Or. Ct. App. 1994).

Opinion

EDMONDS, J.

Defendant seeks reversal of his convictions for four counts of sodomy in the first degree, ORS 163.405, and two counts of rape in the first degree, ORS 163.375. He argues that the trial court erred in refusing to admit evidence about the victim’s drug use, his health problems, and in admitting into evidence exhibits that included photographs of nude females found in his house. We affirm.

Defendant was indicted and convicted in 1992 of sodomizing and raping his daughter when she was between nine and 14 years old. The victim testified that the abuse stopped in 1984. In 1988, at age 18, she reported the abuse to the Children Services Division (CSD).1 In 1992, defendant was interviewed by a police detective and confessed to sexually abusing the victim.

Defendant first assigns error to the trial court’s evidentiary rulings that excluded evidence of the victim’s drug use. During the trial, defendant made four offers of proof, which were rejected by the trial court, in which he attempted to introduce testimony regarding the victim’s drug use. He argues that the proffered evidence is relevant to prove that his confession was false. According to defendant, the victim’s drug use caused her to experience a personality change that resulted in her making a false report to CSD about the abuse. At trial, defendant testified that he confessed falsely as a means to assist his daughter in obtaining low cost counseling after she reported the alleged abuse to CSD. Therefore, he asserts that it follows that the evidence about the drug use is relevant to show that his confession in 1992 was given in furtherance of the victim’s purported request made in 1988 asking him to lie about abusing her so she could obtain counseling. He also argues that the evidence was admissible to impeach the victim’s testimony at trial about her use of drugs.

[62]*62The trial court ruled that the evidence was not relevant. Evidence is relevant if it has

“any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” OEC 401.

The proper question is: “Does the item of evidence even slightly increase or decrease the probability of the existence of any material fact in issue?” State v. Gailey, 301 Or 563, 567, 725 P2d 328 (1986).

All of the evidence offered by defendant concerning the victim’s drug use was either about her use of drugs after she had purportedly asked defendant to lie so she could obtain counseling, or was about her alleged drug use during an unspecified point of time. Without a nexus to the relevant period of time when the victim made her report to CSD and was seeking counseling, the evidence does not have the tendency to make defendant’s testimony that he falsely confessed in 1992 to further the victim’s goal of obtaining counseling in 1988 more likely. Also, the evidence could not be proper impeachment because, although she denied using drugs before 1988, the victim admitted on cross-examination that she had experimented with drugs after 1988. See OEC 613. The trial court did not err in holding that the evidence was not relevant.2

Defendant next assigns error to the trial court’s ruling prohibiting him from testifying that his ability to communicate was impaired as a result of the medication he was taking. Defendant was taking the medicine because he had had two heart attacks in the recent past.3 There is no [63]*63evidence that defendant had the expertise and training that would make him competent to testify that, in his opinion, the medication was causing the symptoms about which he was complaining. The trial court did not err in sustaining the state’s objection to the admission of defendant’s testimony to that effect.

Finally, defendant assigns error to the trial court’s ruling that allowed the state to introduce into evidence Exhibits 1-4, which are materials that contain photographs of nude adult females. At trial, the victim testified that defendant took nude photographs and video recordings of her during the time that he was abusing her. The police did not find any such photographs or videotapes in defendant’s possession when they searched his home in 1992. Relying on State v. Vanderham, 78 Or App 589, 717 P2d 647 (1986), defendant argues that the exhibits are inadmissible under OEC 401,4034 and 404(3).5 The state responds that, because [64]*64defendant pursued the theory at trial that the jury should disbelieve the victim’s allegations of abuse because the police did not find any nude pictures or videos of the victim in defendant’s possession, the exhibits are relevant to corroborate her testimony. The state also argues that the evidence makes it more likely that defendant was lying when he claimed on the witness stand that he had no interest in nude photography or child pornography, and that it shows his heightened interest in genitalia of female children. Finally, the state argues that any error in admitting the evidence was harmless.

The materials admitted into evidence do not depict prepubescent females, although Exhibit 1 contains photographs of a nude model wearing her hair in pigtails and with bobby socks on her feet. On cross-examination of Detective Crabtree, who had searched defendant’s house, defense counsel asked if, in his experience, persons involved in the sexual abuse of children often acquire pornographic materials portraying children. Crabtree answered in the affirmative. He was then asked if he had found any photographs of the victim in defendant’s home. Crabtree answered in the negative, and in response to more questions, indicated that “there was [sic] no nude photos of any children,” and “no pornographic material whatsoever.” On direct examination, defendant testified that he never took any nude photographs or movies of the victim. On cross-examination, defendant testified:

“Q And you never took any pictures of [the victim] in the nude; is that correct?
“A No.
“Q I believe you testified a little bit ago that you fairly recently had gotten some camera equipment?
“A Say,’87.
“Q That kind of thing, taking photographs of naked children, naked people, that doesn’t interest you at all?
“A No.
“Q Would you explain why, if you never took any of these photos, that you showed Detective Crabtree the place where you hid these photos that you never took?
[65]*65“A That’s a place that my son had showed me under the steps, and it was to help embellish my story.
“Q Do you have a locked file in your house?
“A Yes.
“Q And did you help Detective Crabtree get into the locked file?
“A Yes. Everything in the house was open for his—
“Q Isn’t it true that there were items in there on how to do nude photography?
“A Yes.

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Related

State v. Gallegos
28 P.3d 1178 (Court of Appeals of Oregon, 2001)
State v. McCapes
912 P.2d 419 (Court of Appeals of Oregon, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
883 P.2d 890, 131 Or. App. 59, 1994 Ore. App. LEXIS 1543, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hite-orctapp-1994.