State v. Williams

368 P.3d 459, 276 Or. App. 688, 2016 Ore. App. LEXIS 223
CourtCourt of Appeals of Oregon
DecidedMarch 2, 2016
Docket08CR0707; A145644
StatusPublished
Cited by12 cases

This text of 368 P.3d 459 (State v. Williams) 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. Williams, 368 P.3d 459, 276 Or. App. 688, 2016 Ore. App. LEXIS 223 (Or. Ct. App. 2016).

Opinion

DEHOOG, J.

This case comes to us on remand from the Supreme Court, State v. Williams, 258 Or App 106, 308 P3d 330 (2013) (Williams I), rev’d, 357 Or 1, 346 P3d 455 (2015) (Williams II). A jury convicted defendant of two counts of first-degree sexual abuse, ORS 163.427, for conduct involving a five-year-old child. Defendant appealed those convictions and raised multiple assignments of error. Williams I, 258 Or App at 107. We reversed on defendant’s first assignment of error and held that the trial court erroneously admitted, under OEC 404(3), testimony that defendant had previously possessed little girls’ underwear, which the state offered as evidence of defendant’s sexual intent towards the child. Id. at 107, 111, 114. In light of that disposition, we did not reach defendant’s other assignments of error. Id. at 107. In Williams II, the Supreme Court reversed our decision and concluded that the underwear evidence was admissible evidence of sexual intent under OEC 404(4), which, the court concluded, superseded OEC 404(3). 357 Or at 24. The Supreme Court remanded to us with instructions to consider defendant’s three remaining assignments of error. Id.

Defendant’s combined second and third assignments of error contend that the trial court erred, first, by allowing the state to play an audiotaped interview of defendant, in which the investigating detective repeatedly commented on defendant’s credibility, and, second, by subsequently denying defendant’s motion for mistrial, in light of the highly prejudicial nature of that recording. In his fourth assignment of error, defendant argues that the trial court erred in accepting the jury’s verdict, after instructing the jury that it could render a verdict based upon a nonunani-mous vote of its members. On defendant’s second and third assignments of error, we conclude that the trial court did not commit reversible error, in light of the trial court’s specific instruction that the jury ignore the detective’s comments about defendant’s credibility. As for defendant’s fourth assignment of error, we have previously rejected challenges to nonunanimous jury verdicts. E.g., State v. Cobb, 224 Or App 594, 596-97, 198 P3d 978 (2008), rev den, 346 Or 364 (2009). For the reasons stated in Cobb and numerous other [691]*691decisions, we again reject that challenge without further discussion. Accordingly, we affirm.

We fully described the facts underlying defendant’s convictions in our previous decision, Williams I, 258 Or App at 107-10, and do not repeat them in detail here. However, to place our discussion in context, we provide aspects of that factual background, as well as pertinent details of the ensuing investigation and subsequent procedural history. In brief, the conduct that gave rise to defendant’s charges — including allegations that he touched the bare vagina of a five-year-old girl and caused her to touch his penis through his pants— came to the attention of the police after the child’s mother reported what the child had told her. Specifically, when the child’s mother asked her what she thought of defendant, who recently had begun dating the mother, the child replied, “I don’t know about him, mommy. * * * [T]he other day when you were in the shower, he tickled my potty and made me touch his.”

The child’s mother contacted the police. Grants Pass Police Detective Pierce interviewed the child, who identified defendant as the person who had touched her. The child repeated for Pierce that the touching had occurred when her mother was in the shower. She also shared that it had happened one other time earlier that day, before a rafting trip that she had gone on with her mother and defendant. Pierce followed up her interview of the child with a recorded interview of defendant. Pierce also enlisted the assistance of Detective Lidey, who subsequently interrogated defendant twice regarding the sexual abuse allegations. Lidey recorded both interrogations.

The second interrogation by Lidey is the basis of defendant’s second and third assignments of error. The trial court allowed the state to play a 45-minute recording of that interrogation for the jury, mostly over defendant’s objection. Throughout the interrogation, defendant maintained that he had not touched the child’s vagina with sexual intent, and that any touching that might have occurred would have been incidental to their nonsexual interactions, such as play-wrestling or defendant carrying the child on his shoulders while shopping with her mother.

[692]*692Early in that interview, Lidey told defendant that he could “read body language.” Throughout the interview, Lidey repeatedly told defendant that he could tell from his body language that he was “holding something back” and that he was not being entirely truthful. Lidey also commented on specific aspects of defendant’s body language, which he told defendant were indications that he was lying. Lidey said that whenever he asked defendant whether he had touched the child “inappropriately,” defendant would “look[] down to the right,” and that, in Lidey’s experience, that eye movement typically told him that someone was lying.

Defendant objected to the jury hearing any more of the interrogation immediately after it heard Lidey’s claim that he could “read body language.” Defendant argued that that assertion was an impermissible comment on defendant’s credibility, or, in the words of the trial court, “reverse vouching.”1 The court overruled defendant’s objection. It reasoned that the general prohibition against witnesses commenting on the credibility of other witnesses did not apply to out-of-court statements such as Lidey’s. The trial court distinguished in-court “vouching” from what it viewed Lidey to have done, which was merely “doing [his] job” by challenging defendant’s truthfulness to get him to change his story.2

After the state played the balance of the interview for the jury, defendant moved for a mistrial. He again argued that Lidey’s recorded statements should have been excluded as impermissible comments on defendant’s credibility and cited State v. McQuisten, 97 Or App 517, 520, 776 P2d 1304 (1989) (holding that trial court erred in not excluding, sua sponte, officer’s recorded statement implying that the officer believed the complaining witness). Defendant further argued that no curative instruction could mitigate the highly prejudicial effect of improperly allowing the jury [693]*693to hear those inadmissible comments. Notably, defendant’s argument that the recording was incurably prejudicial was premised on his view that it was presumptively inadmissible; he did not argue that, to the extent it might be admissible, any probative value that it might otherwise have would be substantially outweighed by the danger of unfair preiu-dice. See OEC 403.

The trial court denied defendant’s motion for mistrial. After defendant testified, however, the trial court directed the jury to disregard any comments made by Lidey regarding defendant’s credibility. The trial court first gave that jury instruction orally, highlighting those specific comments that the jury should ignore:

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Cite This Page — Counsel Stack

Bluebook (online)
368 P.3d 459, 276 Or. App. 688, 2016 Ore. App. LEXIS 223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-williams-orctapp-2016.