State v. Hobbs

179 P.3d 682, 218 Or. App. 298, 2008 Ore. App. LEXIS 197
CourtCourt of Appeals of Oregon
DecidedFebruary 27, 2008
DocketC040607CR; A126091
StatusPublished
Cited by9 cases

This text of 179 P.3d 682 (State v. Hobbs) 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. Hobbs, 179 P.3d 682, 218 Or. App. 298, 2008 Ore. App. LEXIS 197 (Or. Ct. App. 2008).

Opinion

ORTEGA, J.

Defendant appeals a judgment of conviction of two counts of second-degree sodomy, ORS 163.395. We write to address defendant’s first eight assignments of error, all of which relate to the admissibility of particular excerpts, including 10 entire pages, from the victim’s journal; we reject the other assignments of error without discussion, and affirm.

The following facts are pertinent to our review. During her eighth-grade school year, when she was 13 years old, the victim lived with her sister and her sister’s husband, defendant, because she and her mother were having conflicts. During her stay there, defendant sometimes yelled at or disciplined the victim for violating household rules or skipping school. The victim left the household near the end of the school year, after overhearing defendant tell her sister that either he or the victim needed to leave. About four months after her departure, the victim was hospitalized because of a suicide attempt and then entered residential therapy.

A few months later, while in the residential therapy program, the victim wrote a “journal” in which she described the development of her relationship with defendant (whom she called “Kay”), her feelings, and the sexual conduct that occurred between them. At the time she wrote the journal, she felt “tj]ust really angry” as a result of medication side effects. Although the parties and witnesses referred to the document as a journal and we follow suit, the document was not a day-to-day record of the victim’s life. Rather, she wrote the journal over the course of two days, some months after the occurrence of the incidents that she described; she explained that she wrote it “[be]cause it was in my head, and I needed to get it out.” The entire journal is about the victim’s relationship with and feelings about defendant.

The victim’s mother found the journal. After reading it, she believed that the victim might have been abused, so she contacted a youth advocate and turned the journal over to police.

Detective Herb interviewed the victim. Herb testified that, although the victim became very upset when asked [301]*301questions about her relationship with defendant and the contents of her journal, she reported that defendant had engaged in acts of sodomy with her. She also told Herb that the relationship “ ‘wasn’t [defendant’s] fault.’ ”

Herb then interviewed defendant. Herb testified that, when he first told defendant that he wanted to discuss defendant’s relationship with the victim, defendant said, “ ‘Nothing really happened. It’s over and done with.’ ” Herb told defendant that the victim had been so affected by events “that I believed there was maybe a connection to this suicide attempt. And I knew that he knew about this. And I told him that, you know, things like this for a young child can cause a lot of anxiety and a lot of confusion.” Defendant admitted kissing the victim but denied that any sodomy had occurred. After Herb told defendant that the victim had reported that she had performed oral sex on him, defendant responded, “ Well, if that did happen, I don’t know about it.’ ” He later added that he sometimes became so drunk that he did not know what was happening but that he thought he would remember oral sex if it had occurred.

The victim had been reluctant to talk about the events with Herb, and she was reluctant to testify at trial. She was in a residential treatment facility at the time of trial to get stabilized after her suicide attempt. She explained that she had “overdosed on pills, because things were in my mind that I couldn’t handle ’cause I felt guilty” about hurting her sister, defendant’s wife. She considered her journal to be very personal and private. She expressed concern that her failure to keep the events hidden could end her sister’s marriage and cause defendant to “get[ ] locked up.”

When asked about what had happened, she responded that she did not “want to explain” her relationship with defendant and did not “want to say” what kind of touching had occurred. She described her relationship with defendant as “|j]ust a friendship that got too close.” The victim nevertheless testified that defendant had engaged in acts of sodomy with her and had done the things described in her journal.

As part of its case, the state initially offered nine statements from the victim’s journal, two of which were [302]*302admitted without objection. In the first of those two statements, the victim wrote, “[W]e kissed[,] well[,] ended up more like making out. We eventually ended up doing [a] lot of shit, like we both went down on each other and banging once, nearly having sex * * *!” In the second, she wrote, “Why do we fool around, how can he like fooling around with a fat, chubby 14[-year-] old girl[?]” Defendant objected to the following seven statements:

1. “I don’t remember exactly but he ended up telling me he didn’t know why or when but he thought of me and him kissing like intimate kissing!”
2. “We talked about it more the next time we were alone and had a chance to talk, asking each other curiously what would happen if we did kiss? How far would we let it go? How far would we go?”
3. “I want to be with him, I want him I guess, I think I love him, I thought it was lust and I’d get over it but it’s been over a year and it keeps on getting stronger.”
4. “Also Saturday, I asked him does he think I overdosed because of all this. I told him it wasn’t him really. But honestly this[,] well[,] these pages tell why.”
5. “I still remember Kay coming up to see me at the hospital! He asked my sitter [sic] how was I doing and then I melted in sadness, because why I od’ed and then him going up to see me, I guess you can say I’ve fallen, fallen deep for him.”
6. “I can write him telling him but I don’t want anyone to find it cuz then we’d be fucked.”
7. “If he says he doesn’t look at me the way he should then what does he see or look at me like? A ho? Booty call? What.”

The state offered those statements under OEC 803(18a)(b), which permits the admission of hearsay statements “concerning an act of abuse as defined in ORS 107.705 or 419B.005.”1 Objecting, defendant contended that the statements did not concern an act of abuse. As we discuss in more [303]*303detail below, he also argued that the statements about the victim’s feelings were irrelevant and “unduly prejudicial under [OEC] 403.” The trial court ruled that all of the statements concerned an act of abuse and were admissible.

Later, the state offered 10 entire pages of the journal, which included all of the foregoing statements. Defendant objected, contending that many of the statements in the journal were irrelevant to the charged acts and did not concern an act of abuse. The trial court overruled that objection.

The defense theory was that the victim was a troubled teenager who made “mythical, fantastical allegations” against defendant to gain her mother’s approval. In support of that theory, defendant offered testimony from the victim’s sister (defendant’s wife) and four other witnesses that the victim was not truthful.

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Cite This Page — Counsel Stack

Bluebook (online)
179 P.3d 682, 218 Or. App. 298, 2008 Ore. App. LEXIS 197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hobbs-orctapp-2008.