State v. Inman

366 P.3d 721, 275 Or. App. 920, 2015 Ore. App. LEXIS 1603
CourtCourt of Appeals of Oregon
DecidedDecember 30, 2015
Docket12CR0651; A153569
StatusPublished
Cited by39 cases

This text of 366 P.3d 721 (State v. Inman) 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. Inman, 366 P.3d 721, 275 Or. App. 920, 2015 Ore. App. LEXIS 1603 (Or. Ct. App. 2015).

Opinions

HADLOCK, J.

Defendant challenges his convictions for first-degree sodomy, a violation of ORS 163.405, and harassment, a violation of ORS 166.065. He first argues that the trial court erred by “permitting” a police detective to comment on the credibility of another witness, the sodomy victim, despite the lack of any objection by defendant to that aspect of the detective’s testimony. As explained below, even if we agreed that the trial court plainly erred by not striking that testimony sua sponte, we would decline to exercise our discretion to correct the error. Accordingly, we need not determine whether the trial court plainly erred in the way that defendant contends. Defendant also argues that the trial court erred when it made various rulings related to defendant’s conviction by nonunanimous jury verdicts (11-1 on sodomy; 10-2 on harassment) and when it imposed the 300-month statutorily mandated sentence on his sodomy conviction. We reject each of those latter arguments without further discussion. Accordingly, we affirm.

In addressing defendant’s argument that the trial court plainly erred by failing to strike certain testimony sua sponte, we consider the evidence in the light most favorable to the state. State v. Wilson, 266 Or App 481, 482, 337 P3d 990, rev den, 356 Or 837 (2014). Later, in exploring whether we should exercise our discretion to correct any such error, we consider all of the pertinent evidence and other relevant aspects of the record. Cf. State v. Blaylock, 267 Or App 455, 456 n 1, 341 P3d 758 (2014), rev den, 357 Or 299 (2015) (explaining that “we look at all pertinent evidence” when assessing whether evidentiary error was harmless). We describe the facts in keeping with those standards.

This case involves several children, including J (the sodomy victim), E (the harassment victim, and a friend of J), R (another of J’s friends), and Q (J’s older brother). In early 2012, defendant moved into the home where R lived with her parents and siblings; he stayed there for five or six months. J and E, who then were about seven years old, and Q, who was about eleven years old, often played at R’s house during the summer. One afternoon in June or July, Q saw defendant in an upstairs bedroom in that house, bending down in front [923]*923of J with his face near her “privates.” J’s pants were down around her ankles and she had no underwear on. Q heard defendant ask J if he could “lick her privates”; Q also heard J ask defendant to stop what he was doing. Q ran downstairs and tried to tell R’s parents what was happening, but they were occupied and did not pay attention to him. Q went home and told his mother (who is also J’s mother) what had happened, but she testified at trial that she had not understood Q and, consequently, did not immediately learn of the abuse.

On August 15, J’s mother did receive information about the abuse, which prompted her to call the sheriffs office. A deputy sheriff spoke with J and Q before the case was referred to the Brookings Police Department. The next day, J’s mother met with a detective from that department, McCourt, and told him that defendant had abused J “a couple of times.”

McCourt then contacted defendant and asked him about the allegations. Defendant told McCourt that the children had “conspired against him to make up these allegations” because “he wouldn’t play with them anymore.” Defendant also told McCourt that he had kissed J on the nose and on the cheeks, and that he might have contacted her “crotch area” when they were “playing around.” Defendant denied performing oral sex on J, telling McCourt that he “would never do anything they wouldn’t like or want.” Defendant also told McCourt that J had told him that somebody else had performed oral sex on her about a month earlier.

McCourt interviewed Q on the day after his mother first contacted the sheriffs office about the abuse. Shortly thereafter, Q was interviewed by Dotson, a forensic interviewer at the local child-advocacy center. In addition, McCourt coordinated a “pretext call” from Q to defendant. During that call, McCourt gave “information and questions to [Q] about what to say,” because the child was having difficulty talking to defendant. McCourt “kind of felt bad while [they] were doing it,” but he believed that the pretext call “was necessary to try to get as much evidence as we could.” Defendant apparently made no admissions during that call. [924]*924Q also spoke with a prosecutor a few times in the weeks before trial.

McCourt also spoke briefly with J on the day following her mother’s report to the sheriffs office, but he “did not talk to [her] about the case at all.” That same day, Dotson conducted a forensic interview of J, who told Dotson that she was at the center because “a guy molest [her].” Dotson testified that the word “molest” is not a word that a child J’s age typically would know or use. Dotson asked J if she knew what “molest” means and J said that she had forgotten. J then told Dotson that defendant had licked her vagina with his tongue and that it happened once, at night, about a week before the interview.1 Dotson testified that about 50 percent of children J’s age use the word “vagina.” J also spoke with the prosecutor before trial.

At some point, E (one of J’s friends) disclosed that, one day while the children were playing at R’s house, defendant had grabbed her legs and looked under her dress. At trial, she testified that defendant’s actions made her feel nervous because she did not “know what [he] was going to do.” E told defendant to stop, but he did not, so she ran back to her home.

During her forensic interview, J also disclosed that, on a particular occasion when defendant and E were present, defendant looked under the two girls’ dresses. J also described another incident when defendant looked under E’s dress while he pretended to take a nap.

The state initially charged defendant with two counts of first-degree sodomy and three counts of harassment, but later dismissed some of those charges. Consequently, defendant was tried on one count of first-degree sodomy (against J) and one count of harassment (against E).

In his opening statement, defendant suggested that “the amount of contact and discussions about this” that occurred between J, Q, and their mother “before the police ever got involved” might cause the jurors to question [925]*925whether certain standards for sex-crime investigations had been met. Q, J, Dotson, McCourt, and E then testified to the facts described above. In apparent support of an argument that the children had been interviewed too many times, defendant cross-examined Dotson about protocols for investigating child sex-abuse cases. In response, she agreed with defense counsel’s statement that, according to those guidelines, “you’re to try to minimize the number of interviews with the child.” Dotson also acknowledged that she believed that J had spoken to her mother about the abuse.

During his direct examination, McCourt was asked about conversations that he and prosecutors had with J shortly before trial. McCourt responded with the testimony that is the subject of defendant’s “vouching” argument on appeal:

“Q. * * * What was the purpose of those visits?
“A.

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Cite This Page — Counsel Stack

Bluebook (online)
366 P.3d 721, 275 Or. App. 920, 2015 Ore. App. LEXIS 1603, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-inman-orctapp-2015.