State v. Navaie

362 P.3d 710, 274 Or. App. 739, 2015 Ore. App. LEXIS 1298
CourtCourt of Appeals of Oregon
DecidedNovember 12, 2015
DocketC102728CR; A152206
StatusPublished
Cited by4 cases

This text of 362 P.3d 710 (State v. Navaie) 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. Navaie, 362 P.3d 710, 274 Or. App. 739, 2015 Ore. App. LEXIS 1298 (Or. Ct. App. 2015).

Opinion

NAKAMOTO, J.

Defendant appeals a judgment of conviction of one count of first-degree encouraging child sexual abuse (Count 1), ORS 163.684,1 and eight counts of second-degree encouraging child sexual abuse (Counts 2 through 9), ORS 163.686.2 The court also found defendant in contempt of court, and it added a conviction for contempt to the judgment. Asserting four assignments of error, defendant argues that the trial court erred by (1) excluding proffered defense expert testimony about her psychological traits, (2) admitting, over her hearsay objections, evidence that one of the computer file folders that contained child pornography was labeled with her name, (3) denying her motion for judgment of acquittal on one of the counts of second-degree encouraging child sexual abuse, and (4) entering a judgment of “conviction” for contempt rather than a judgment finding her in contempt of court.

We address each of the assignments and conclude as follows: First, as the state concedes, the trial court erred by excluding testimony about defendant’s psychological traits by defendant’s expert witness; accordingly, we reverse and remand for a new trial. Second, the trial court did not err in admitting, as an admission of a party opponent, the evidence that a computer folder was labeled “Piper’s Stuff.” Third, the trial court did not err in denying defendant’s motion for judgment of acquittal on Count 8, based on the photograph at issue in that count. Fourth, as the state also concedes, [741]*741the trial court erred by entering a judgment of conviction for contempt; on remand, the court shall enter a judgment reflecting that the court found defendant in contempt.

I. BACKGROUND

To set the context, we initially provide background facts leading up to the state’s charges against defendant. We set out additional facts, as pertinent, when discussing individual assignments of error.

The state charged defendant after her husband, Matthew Navaie (Navaie), a registered sex offender, told police that he possessed child pornography on a computer at the residence that he shared with defendant, their son, defendant’s mother, and his own mother.3 Other adults stayed at the home from time to time. The police seized the home computer with Navaie’s consent. Navaie was “cooperative” and “forthcoming” with police. He showed them several file locations on the computer where he had stored sexually explicit images of children, all within a folder labeled “Matt.” Navaie referred to the images as “his pictures” and told police that he had downloaded all of them the previous month, specifying that “he had * * * right-clicked the mouse, and clicked ‘Save As.’” Navaie also had a “lengthy conversation” with the arresting detective, in which Navaie openly discussed his sexual attraction to young children. Navaie did not indicate that defendant was involved with the child pornography.

Defendant, however, repeatedly stated that the child pornography was hers. When police interviewed defendant while executing a search warrant of the home, defendant stated that the child pornography belonged to both her and Navaie and that they viewed the images together. Defendant’s mother-in-law, Rose, testified that, after Navaie’s arrest, defendant was “extremely anxious and emotionally losing it.” Rose posted bail for her son, but, when she told defendant that he deserved to be incarcerated for possessing child pornography, defendant responded that she had downloaded the pictures.

[742]*742Defendant made similar admissions to a Department of Human Services (DHS) caseworker, Hundahl. On the basis of Navaie’s arrest for encouraging child sex abuse, Hundahl initiated a child abuse investigation concerning Navaie and defendant’s infant son. As soon as Hundahl raised the issue of child pornography during her interview of defendant and Navaie, defendant stated that Navaie had not downloaded any child pornography and that it was “all hers.” Defendant also told Hundahl that she “had been watching a lot of [the television show] 'Law and Order’ * * * in order to research [Navaie’s] defense.” She said that she downloaded around 20 child pornography pictures per week from various websites. Defendant stated that she would look at the images with Navaie. According to Hundahl’s testimony, defendant did not provide “any specificity at all related to where the files were downloaded, when they were downloaded, or what websites they were downloaded from.” In reference to the charges against Navaie, defendant also stated that she could “not believe that * * * Navaie would do something so stupid,” but that she “would stay with him throughout this.”

Police detective Brooks performed a forensic examination of the hard drive in the seized home computer. According to Brooks, the computer had one user account. There were several electronic folders saved on the “desktop.” One was labeled “Matt” and another was labeled “Piper’s Stuff.” Defendant’s nickname is Piper. Police discovered several sexually explicit images of children in the folder labeled “Matt” or in subfolders within that folder. Those images were the bases for Counts 2 through 9 of the indictment brought against defendant. Police found one sexually explicit image of a child within a subfolder labeled “Our Girls” in the “Piper’s Stuff’ folder. That image was the basis for Count 1.

II. EXCLUSION OF TESTIMONY BY DEFENDANT’S EXPERT

At trial, defendant’s defense was that the child pornography images found on the seized computer actually belonged to her husband and that, to aid him, she had falsely confessed to downloading the pictures. In defendant’s first assignment of error, she challenges the exclusion of testimony by her expert witness.

[743]*743We begin with the facts relevant to that assignment of error. Before trial, the state moved to exclude testimony by Dr. Grounds, a clinical and forensic psychologist who had evaluated defendant for likelihood of recidivism and “psychological and cognitive factors relevant to an understanding of [defendant’s] behavior related to the * * * offense.” The state anticipated that Grounds would testify that, in her opinion, defendant’s various mental conditions shed light on her inculpatory statements. The state argued that Grounds’s testimony would be inadmissible because it was improper vouching as to defendant’s credibility; hearsay, to the extent that it relied on outside research; and unfairly prejudicial without physical corroboration under State v. Southard, 347 Or 127, 142, 218 P3d 104 (2009). As to its Southard theory, the state argued that the jury would unduly rely on Grounds’s opinion as to defendant’s credibility and, therefore, there was a high risk that the testimony would be unfairly prejudicial.4

In response to that argument, defendant asserted that the evidence was not vouching and that she was entitled to establish her psychological condition at the time that she made the inculpatory statements. The trial court ruled that Grounds could testify that defendant suffers from a personality disorder and could describe the traits of people with such a personality disorder.

At trial, defendant called Grounds to testify.

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Cite This Page — Counsel Stack

Bluebook (online)
362 P.3d 710, 274 Or. App. 739, 2015 Ore. App. LEXIS 1298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-navaie-orctapp-2015.