Appeal from Circuit Court, Clatsop County. Thomas E. Edison, Judge. No. 29145.
Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Thornton, Judge. Schwab, Chief Judge, and Langtry, Judge.
Defendant was charged in a two-count indictment with committing (1) first degree sodomy and (2) attempted rape. Both acts were alleged to have been committed on the same female victim.
Defendant entered a plea of not guilty by reason of insanity to both counts. He was convicted on both after a jury trial.
The trial judge sentenced defendant to serve a term of 20 years on the first count and 10 years on the second, to be served consecutively. Defendant appeals contending that the trial court erred:
(1) In refusing to grant a new trial on the ground that "defendant's attorney should have been present when the state's psychiatrist examined the defendant"; and
(2) In sentencing defendant to consecutive terms "for acts involved in the same transaction."
The evidence offered by the state was that the victim and another young girl were hiking together in the vicinity of Youngs River Falls in Clatsop County. As the girls were walking along a trail, defendant came up behind them, and grabbing the victim around the neck with one arm and between the legs with the other, pulled her to the ground. Defendant
leaped up, pulled a handgun from under his coat and pointed it at the pair. He then took the two girls a short distance down the trail, ordered them to disrobe partially, lie down on their jackets, telling the victim that she would be first. The victim pulled down her slacks. The defendant then pulled down her underpanties, performed oral sodomy on her, and attempted to have intercourse with her, but was unable to penetrate. Following this defendant let the girls go. They then drove to the police office in Astoria, and reported the incident.
The evidence offered in support of defendant's insanity defense included testimony of a psychiatrist that defendant understood the criminality of his act but could not conform his behavior to the law. In addition, defendant's wife testified that the defendant kept a wig, a dress, makeup, brassieres, panties and slips in a trunk in their house; that although she had never seen her husband wear these items she had seen him wear women's pajamas and bikini-type panties. Lastly, defendant took the stand and testified that when he was 14 he had been charged with molesting a girl on a street because he put his hands between her legs; that during the street incident he realized what he was doing when he assaulted the girl but that he could not help it; that following this there were various other ...