Argued and submitted on June 27, 2012.
Josephine County Circuit Court 08CR0707, Pat Wolke, Judge.
Mary M. Reese, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Patrick M. Ebbett, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge.
Defendant was convicted after a jury trial of two counts of first-degree sexual abuse, ORS 163.427, for his conduct involving a five-year-old girl. The state was required to prove that defendant touched or attempted to touch the child's sexual or other intimate parts "for the purpose of arousing or gratifying the sexual desire of" either party. ORS 163.427(1)(b); ORS 163.305(6) (defining sexual contact). On appeal, defendant advances four assignments of error. He contends that the trial court erred in (1) admitting evidence that he possessed two pairs of little girls underwear as relevant to his specific, sexual intent, (2) allowing the prosecution to play a recording of his interview by a detective, during which the detective repeatedly commented on his credibility, and concluding that a curative instruction was sufficient to address those comments, (3) denying defendant's motion for a mistrial based on the detective's comments on his credibility, and (4) allowing a nonunanimous jury verdict. We do not reach his second through fourth assignments because, as to the first assignment of error, we conclude that the trial court erred, and we reverse and remand for a new trial.
Defendant met the child's mother one Saturday night at a bar. They spent most of the night together at the mother's apartment and planned a rafting trip for the next day. The next day, defendant met the child and her mother to go shopping for supplies for the trip. At the store, defendant picked up the child and placed her over his shoulders, and she rode on his shoulders while they shopped. That evening, after their outing, they returned to the mother and child's apartment. At the apartment, the child's mother went outside to the patio area to smoke while defendant and the child were wrestling on the couch. Mother came back inside and wanted to take a shower, and defendant volunteered to watch the child. When the child's mother left the room, she observed defendant sitting on the couch and the child sitting on the floor in front of the couch. Mother showered for approximately 10 minutes and rejoined the two on the couch.
After another date with defendant, the child's mother asked the child what she thought of defendant. In response, the child said, "I don't know about him, mommy, " and, when her mother asked the child to elaborate, she replied, "Mommy, the other day when you were in the shower, he tickled my potty and made me touch his." Her mother asked whether defendant "tickled" the child over her underwear, and the child put her hand inside her underwear and wiggled her fingers, saying "he did this."
The child's mother called the police, and Grants Pass Detective Pierce interviewed the child. During the interview, the child identified defendant as the person who had touched her. The child told Pierce that the touching occurred when her mother was in the shower and also once before the rafting trip. After conducting the initial interview of defendant, Pierce contacted Detective Lidey to assist her with the investigation.
Eventually, after Lidey had interrogated defendant twice, defendant was charged with two counts of sexual abuse in the first degree based on events after the rafting trip. In Count 1, the state alleged that defendant had had sexual contact with the child by touching her vagina, and the state alleged in Count 2 that he had caused the child to touch his penis.
Pierce's interview of defendant was recorded, and the state played the recording for the jury. Pierce told defendant that the child had made an "accusation" of "some kind of touching, " and defendant denied ever being alone with the child. When Pierce told defendant that the allegation occurred while the child's mother was in the shower, defendant replied that he was only alone with the child for ten minutes and explained that, during that time, the child was sitting on the floor watching a movie and he was lying on the couch. Pierce asked if the child had ever lain on him while on he was on the couch, and he said no. He stated that he had never seen the child naked and repeatedly denied touching the child's private area. Defendant explained that he may have touched the child's private area inadvertently once when he picked her up and carried her on his shoulders while they were shopping for supplies for the rafting trip.
Although both of Lidey's interrogations of defendant were recorded, the state played only the audio recording of Lidey's first interrogation, which was approximately 45 minutes long, for the jury. During that interrogation, defendant admitted that he and the child wrestled, but stated, "I did not touch her anywhere intentionally, or that I hadn't touched her at all that I'm aware of. But in the course of wrestling * * * I could grab anywhere, and just to throw her off or throw her in, something like that." Lidey asked whether defendant accidentally touched the child's vagina, and defendant said no. During Lidey's second interrogation of defendant, ...