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Oregon v. Bell

September 14, 1973

STATE OF OREGON, RESPONDENT,
v.
FLOYD DEAN BELL, APPELLANT



Appeal from Circuit Court, Crook County. John M. Copenhaver, Judge. No. 9515.

Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant.

Gary S. Thompson, District Attorney, Prineville, argued the cause and filed the brief for respondent.

Langtry, Presiding Judge, and Foley and Fort, Judges.

Langtry

Defendant appeals from his court conviction of second degree (statutory) rape. ORS 163.365.*fn1 The

only assignment of error relates to a sustained objection to a line of questions defense counsel asked the prosecutrix. (In his brief defendant states that the court erred in "overruling" the objection, but the court sustained the objection and it is obviously because it was sustained that the defendant claims an error was committed.)

Prosecutrix was a 12-year-old girl who reported two months after the event of having had sexual intercourse forced upon her by the defendant. The defendant denied the allegations of the prosecutrix, and as the defendant says in his brief, it was a "close swearing match" between them. The court after hearing the evidence stated that it had a reluctance of finding a man guilty of rape in such a situation and that if the defendant had simply denied the allegations of the prosecutrix he would probably have found him not guilty. But defendant had testified in considerable detail to "messing around" with the girl. The court said:

"But that [a simple denial] isn't what you did. You testified of the full opportunity[,] of language that was reprehensible in the presence of a twelve-year-old child. I have no reason to believe your testimony at all, Mr. Bell. I have every reason to believe the testimony of the young prosecutrix * * *."

The basis for the assignment of error was the substance of the following answers and questions:

"A [PROSECUTRIX:] I told you it was my first time and I ...


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