State v. Hites-Clabaugh

283 P.3d 402, 251 Or. App. 255, 2012 WL 2915492, 2012 Ore. App. LEXIS 892
CourtCourt of Appeals of Oregon
DecidedJuly 18, 2012
Docket08C48426; A146356
StatusPublished
Cited by5 cases

This text of 283 P.3d 402 (State v. Hites-Clabaugh) 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. Hites-Clabaugh, 283 P.3d 402, 251 Or. App. 255, 2012 WL 2915492, 2012 Ore. App. LEXIS 892 (Or. Ct. App. 2012).

Opinion

BREWER, P. J.

Defendant was convicted after a jury trial of first-degree sexual abuse. ORS 163.427. On appeal, she argues that that the trial court erred in (1) allowing a witness to whom the complainant disclosed abuse to testify without the requisite 15 days’ notice being given pursuant to OEC 803(18)(a)(b), (2) refusing to allow defendant’s expert witness to testify concerning protocols for child sexual abuse investigations and about pedophile grooming behaviors, and (3) denying her motion for a new trial based on newly discovered evidence. In addition, defendant argues that the court erred in imposing a statutorily mandated minimum sentence of 75 months’imprisonment under ORS 137.700, on the ground that such a sentence violates the proportionality provision of Article I, section 16, of the Oregon Constitution. As explained below, we agree with defendant that the trial court erred in excluding the proffered expert testimony concerning child sexual abuse investigation protocols and that the error was prejudicial. Our resolution of that issue obviates the need to discuss any of defendant’s remaining assignments of error. Accordingly, we reverse and remand.

On May 12 through 14, 2008, the regular teacher was absent from her third-grade class at an elementary school in Woodburn, where the complainant was a student. On May 13, defendant worked as a substitute teacher in that classroom. After the morning recess, defendant took the class to restrooms that were around the corner from a hall where second-grade classrooms were located. The students lined up to use the restrooms and went into the restrooms in small groups.

According to the state’s evidence, defendant singled out one female third-grade student, the complainant, and led her around the corner to the hall on which the second-grade classrooms were located. Defendant closed one of the fire doors in that hall, thus partially shielding herself and the complainant. Defendant told the complainant that she was “great at everything” she did, then used her right hand to grab the complainant’s crotch over the complainant’s clothing for approximately one minute. During that time, defendant used her left hand to hold the fire door closed or [258]*258to grasp the complainant’s pants to hold her in place. The complainant tried to push defendant’s hand away but was not strong enough. After one minute, defendant released the complainant and returned to the restroom area. The following day, defendant returned to teach the same class; at some unspecified point during the day, she told the complainant “not to tell anyone.” The day after that, the regular third-grade teacher returned, and defendant served as a substitute teacher in a different classroom.

On the day that the regular third-grade teacher returned, the complainant asked to speak with her and reported to her that a substitute teacher had touched her inappropriately between the legs. The teacher repeated the report to the school principal, as well as to the Department of Human Services. Woodburn Police Officers Potter and Hendricks arrived to investigate; when the school principal went to get the complainant, she disclosed details of the offense to the principal. The principal then escorted the complainant into her office, and she remained there while Potter questioned the complainant concerning the report of abuse. The complainant then disclosed details of the abuse to Potter. Potter also talked to the teacher who had initially reported the abuse. Potter determined that defendant had been the substitute teacher in the third-grade classroom for the two previous days; he then talked briefly with defendant, who was present at the school teaching in a different classroom that day. Defendant denied that any abuse had occurred. Potter did not view the area where the complainant reported that the offense occurred, nor did he speak with any other teachers or students at the school. Thus, the state’s case consisted of the testimony of the complainant — who did not know the name of the substitute teacher who had perpetrated the abuse and did not identify defendant at trial — the third-grade teacher to whom the complainant had originally disclosed the abuse, the principal to whom the complainant had disclosed the abuse, and Potter, to whom the complainant also had disclosed the abuse.

Before trial, defendant sought an in limine ruling on the admissibility of testimony of a psychologist, Kevin McGovern, to the effect that pedophiles commonly seek [259]*259out privacy and engage in grooming behaviors with their victims. The state argued that this was inadmissible “profile” evidence.1 The court expressed doubts that such evidence would be helpful to the jury, and stated that it was disinclined to admit the evidence during defendant’s casein-chief unless it was to rebut evidence offered by the state. The court indicated that it would reserve ruling on that issue until the state had concluded its case.

During the state’s case-in-chief, defense counsel cross-examined Potter concerning the adequacy of his investigation of the allegation of abuse. Potter acknowledged on cross-examination that he was aware of guidelines for interviewing witnesses, but he indicated that he had no specialized training concerning Marion County’s child abuse investigation protocols and little experience involving child sexual abuse cases. He acknowledged that there were protocols in place for such investigations in Marion County, but indicated that, because he was not on the county’s multidisciplinary team for investigation of child abuse, he was not trained in those protocols. Potter acknowledged that his training log showed that he had received training in child sexual abuse investigation, but he nevertheless testified that he was not familiar with the Oregon Department of Justice’s Interviewing Guidelines Manual that was created for use by state law enforcement and child abuse multidisciplinary intervention teams.

After the state rested, defense counsel renewed his request to admit McGovern’s testimony. The trial court indicated that nothing in the state’s case-in-chief had caused it to revisit its tentative conclusion that the evidence was inadmissible. Defense counsel then stated that she wished to call McGovern “as an expert on the necessity to use protocols that have been promulgated by the State of Oregon in sex abuse cases.” The state objected, noting that that issue had not been raised at the preliminary hearing at which McGovern’s testimony was discussed and that the state therefore had not sought out a rebuttal witness [260]*260on that subject. Defense counsel responded that she did not know until she had cross-examined Potter that he was unfamiliar with the protocols for interviewing child sexual abuse victims. The trial court ruled that McGovern would not be permitted to testify on the grounds that (1) counsel should have anticipated the need for the proffered evidence before trial, (2) the protocols were inapplicable because Potter worked for the City of Woodburn rather than Marion County, and they were irrelevant because Potter testified that he was not familiar with them, and (3) “it is not something that an expert witness can testify about. It’s either the law or it isn’t.” The court further indicated that, if counsel could provide statutory authority for the use of the protocols in question, then it would consider giving a jury instruction concerning them.

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Related

Dept. of Human Services v. M. T. J.
466 P.3d 702 (Court of Appeals of Oregon, 2020)
State v. Dulfu
386 P.3d 85 (Court of Appeals of Oregon, 2016)
State v. Henley
386 P.3d 126 (Court of Appeals of Oregon, 2016)
State v. Wright
140 A.3d 939 (Supreme Court of Connecticut, 2016)
Burcham v. Franke
335 P.3d 298 (Court of Appeals of Oregon, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
283 P.3d 402, 251 Or. App. 255, 2012 WL 2915492, 2012 Ore. App. LEXIS 892, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hites-clabaugh-orctapp-2012.