Submitted: September 24, 2013.
Curry County Circuit Court. 10CR0544. Martin E. Stone, Judge.
Peter Gartlan, Chief Defender, and Jedediah Peterson, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Doug M. Petrina, Senior Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
[261 Or.App. 520] HADLOCK, J.
Defendant appeals a judgment of conviction for two counts of sodomy in the first degree, ORS 163.405, making three assignments of error. First, defendant assigns error to the trial court's grant of the state's motion to amend the indictment. Second, he challenges the court's ruling that the state did not violate his rights by failing to disclose to him before trial a recording of a prosecution interview with the victim. Finally, he assigns error to the court's denial of his motion to compel discovery of recordings of, and other records related to, telephone calls he made while in the custody of the Department of Corrections (DOC). We conclude that the argument that defendant makes in conjunction with his first assignment of error is unpreserved, and we reject his second assignment on the merits without discussion. As to the third assignment of error, we conclude that the trial court did not err. Accordingly, we affirm.
The material facts are not in dispute. The victim, M, was born in 1996. Defendant and his wife, C, became M's foster parents in 2000 and adopted him a year or two later. Defendant's wife moved out in 2003, and she and defendant were divorced the next year. In February 2007, M went to live with C.
Beginning in October 2007, defendant was incarcerated in DOC facilities on convictions not related to this case. Sometime in 2008, M disclosed that defendant had performed oral sex on him and required him to perform oral sex on defendant dozens of times throughout the time that he had lived with defendant. According to M, both acts occurred in each episode of abuse.
In July 2010, a grand jury issued an indictment charging defendant with one count of first-degree sodomy and one count of first-degree sexual abuse based on M's disclosures. Over the next several months, the grand jury issued three amended indictments. The first two amendments are not pertinent to this appeal. The final indictment issued by the grand jury charged defendant with, among other things, two counts of first-degree sodomy. The first sodomy count [261 Or.App. 521] alleged that, " on or about a date between 2005 and 2006," defendant had performed oral sex on M. The second sodomy count differed from the first only by alleging that defendant had caused M to perform oral sex on him. Trial was set for June 1, 2011.
Two pretrial motions gave rise to the issues that are before us on appeal. The first related to telephone calls that defendant made, while he was incarcerated in DOC facilities, to family members who had had contact with M. DOC personnel recorded those conversations and made a log reflecting the calls. Three months before the scheduled trial date, defendant filed a motion to compel discovery, seeking copies of the recordings and of the call log. According to defendant, the recorded conversations included " discussions between all parties including the alleged victim regarding matters of a family and personal nature in which the alleged victim denied that the defendant had ever been sexually or physically inappropriate in any manner with the alleged victim." The prosecutor opposed the motion, arguing that the DOC materials that defendant sought were not in his possession or control and therefore not subject to discovery. See ORS 135.815(1) (requiring the district attorney to disclose to a represented defendant certain " material and information within the possession or control of the district attorney,"
including " written or recorded statements or memoranda of any oral statements made by the defendant" ). After a pretrial hearing, the ...