State v. Jesse

362 P.3d 1187, 275 Or. App. 1, 2015 Ore. App. LEXIS 1357
CourtCourt of Appeals of Oregon
DecidedNovember 18, 2015
DocketC110695CR; A153759
StatusPublished
Cited by1 cases

This text of 362 P.3d 1187 (State v. Jesse) 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. Jesse, 362 P.3d 1187, 275 Or. App. 1, 2015 Ore. App. LEXIS 1357 (Or. Ct. App. 2015).

Opinion

FLYNN, J.

Defendant appeals a judgment of conviction for sexual abuse in the first degree, ORS 163.427. Defendant assigns error to the trial court’s pretrial exclusion of expert testimony that defendant offered to support his contention that his admissions to touching the victim were a product of an adjustment disorder and were misunderstood as confessions of abuse. We conclude that the trial court erred in excluding that testimony regarding diagnoses of defendant’s mental health issues, and we further conclude that the error was not harmless. We therefore reverse and remand.

I. BACKGROUND

Defendant and his wife, S, were married for eight years and have two children, M and L. Defendant was indicted in April 2011 for one count of sexual abuse in the first degree based on an allegation of sexual contact with M between March 2009 and March 2010. Because defendant argues that the excluded expert testimony would have helped to explain statements and behavior to which the state pointed as admissions of guilt, we describe those statements and behavior in detail. M was four years old in November 2009, when S returned home from work one morning and found defendant extremely upset. As S later described the discussion, defendant told her that she would never forgive him, handed over his wedding ring, and then told her that he had touched M over her diaper.1 S testified that defendant also said that he had been thinking about touching the children for some time and that he was worried about “turning into his family.” Although S did not understand the family comment at the time, defendant explained at trial that he “had a couple of * * * cousins that have been actually sexually molested, and [he] was at the place when it happened” and that he had “heard rumors” about his mother “possibly being molested by somebody.” According to S, defendant said that “he belonged in prison and to call the police right now.” S did not call the police because defendant agreed to leave [4]*4the house and because defendant told her that M had not awakened and did not know about the touching.

Defendant acknowledged that he was very emotional when S came home and that he had thoughts about “my cousin and my mom being molested as a kid, and I felt that that was pretty disgustingU” He testified, however, that he told S he only accidentally touched M’s diaper while pulling up her covers and that S “freaked out.” He insisted that he “really didn’t think much of it other than the fact it was an accident” and that he took off his ring and left the house because of S’s reaction. He described his thoughts as, “[Y]ou know, you’re freaking out at me, I’m done, I’m going to walk away here.”

S agreed to stay married to defendant for a short time so that he could seek counseling using her health insurance. S insisted, however, that she “needed some sort of proof that says that [defendant] did this so that * * * he couldn’t come back later and say that he wanted the kids.” S testified that she wrote the following statement for defendant to sign:

“I, [defendant], am admitting to touching my oldest daughter, [M], in an inappropriate way. I went in her room early in the morning and was tucking her into bed when I ran my hand over her diaper, over her pubic area. I then walked out and went to bed. My daughter did not wake up. I have never done this before. When my wife came home from work, I told her. She told me to leave and I agreed to that and to get counseling. I am writing this so my wife, [S,] has proof for the protection of our children.”

S testified that she read the document out loud to defendant, and then defendant read and signed it. At trial, defendant took the stand and denied that S showed him the document and claimed that his signature was forged.

S and defendant divorced in March 2010. On September 11, 2010, M told S, “Well, one time I was in bed with daddy and — and he put his hand down my diaper.” M moved her hand over her pubic area to show S how defendant had touched her and said that defendant’s hand was on “her private.” M said that defendant did not take his hand out, so M pulled his hand out of her diaper. M told S that she [5]*5did not tell about the incident sooner because she was afraid that defendant “would have to go away.”

A few days later, before S called the police, she had M repeat the story. M’s story was the same except for an added detail about defendant saying, “I’m sorry.” M described the incident similarly in a recorded interview with a medical examiner at CARES Northwest on September 20, 2010, and in testimony at trial. The CARES medical examiner did not find any physical signs of abuse, but testified that that was consistent with an allegation of touching the outside of the vagina.

Before the disclosure by M, defendant attended counseling with Dr. Callum, a licensed psychologist, for 15 sessions between December 2009 and July 2010. Defendant discussed with Callum issues of anxiety and marital difficulties. He told Callum that he was concerned about “thoughts” of touching his children but assured Callum that he had “never” acted on the thoughts. Defendant later insisted that he never had inappropriate thoughts but that he and S agreed that he would tell Callum otherwise in order to avoid telling her about the touching incident, which defendant feared Callum might have to report to the authorities. Callum was not aware of the signed statement during the time that she was providing therapy.

Defendant was arrested on April 3, 2011. Nearly a year later, defendant was in the Medical Observation Unit of the Washington County Jail when he approached two deputies and asked, “What happens if I confess right now?” A few minutes later, defendant approached them again and said, “I did it. I confess.” A deputy told defendant that the matter was between him and the courts. Defendant continued to pace the unit, approached the deputies again, and said, “Okay. I touched my daughter. I admit [it]. I’m a jerk.”

Before trial, it became apparent to the state that defendant intended to call Callum as one of his witnesses to testify about her clinical observations and opinions about defendant. The state filed a motion in limine to exclude her testimony, arguing, among other things, that the evidence was inadmissible under OEC 702, which provides that, “[i]f scientific, technical or other specialized knowledge will assist [6]*6the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.” (Emphasis added.) Relying on our opinion in State v. Nichols, 252 Or App 114, 118, 284 P3d 1246 (2012), rev den, 353 Or 428 (2013), the state argued that “defendant will not be able [to] establish a sufficient nexus between [his] actions/behaviors and * * * Callum’s observations, opinions, discussions, recommendations, or beliefs surrounding her contacts with the defendant.” The state contended that “Callum has not even provided a formal diagnosis, and if such a diagnosis were to be provided, there is not a satisfactory link that can be demonstrated between the diagnosis and the material events that occurred in this case”; thus, her “testimony is not assistive to the trier of fact and should be excluded.”

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Related

State v. Jesse
385 P.3d 1063 (Oregon Supreme Court, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
362 P.3d 1187, 275 Or. App. 1, 2015 Ore. App. LEXIS 1357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jesse-orctapp-2015.