Argued and submitted: October 11, 2013.
C091025CR. Washington County Circuit Court. Rick Knapp, Judge.
Janet Lee Hoffman argued the cause for appellant. With her on the briefs was Sarah Jane Adams.
Rolf C. Moan, 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 Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[261 Or.App. 742] EGAN, J.
Defendant appeals a judgment of conviction for one count of unlawful first-degree sexual penetration, ORS 163.411, and one count of first-degree sexual abuse, ORS 163.427. Defendant first assigns error to the trial court's denial of his motion to reset the trial date. Defendant argues that the trial court abused its discretion in denying that motion because the denial left defendant with insufficient time to examine physical evidence that the state had resisted providing to the defense until several days before trial. Defendant also assigns error to the trial court's denial of his motion to hold a pretrial hearing for the purpose of determining the victim's availability as a witness under OEC 803(18a)(b). Defendant contends that the trial court was required to hold such a hearing and that he was improperly denied his right under the Oregon Constitution to cross-
examine the victim at that hearing. Finally, defendant assigns error to the trial court's denial of his motion to declare a mistrial, which was made after the victim testified. For the following reasons, we affirm.
The facts are not in dispute, and we begin by recounting those that are pertinent to defendant's first assignment of error. Defendant was charged with seven counts based on the allegation that he had, on a single occasion, inserted his finger into his five-year-old stepdaughter's vagina. Some months prior to trial, the defense sought to obtain and test, over the state's opposition, several items in the state's possession, including a rape kit, items of the victim's clothing, and bedspreads. By order, the court allowed defense counsel to obtain and test those items subject to certain conditions, among them that defendant reveal the name of the lab that would conduct the testing and what tests were going to be performed. Defendant objected to those conditions on the ground that they would violate attorney-client privilege. He subsequently obtained an alternative writ of mandamus from the Oregon Supreme Court, which ordered the trial court to either remove the discovery conditions or to show cause for not doing so within 14 days. The alternative writ issued on February 16, 2010. The Supreme Court [261 Or.App. 743] simultaneously issued an order regarding a motion by defendant to stay the trial court proceedings. At that point, trial was scheduled to commence on March 3, 2010. The Supreme Court's order stated that, if the trial court removed the conditions, the motion for a stay was denied; if the court did not perform the " actions specified in the alternative writ of mandamus, the motion for a stay of the trial" would be deemed granted.
The following day, February 17, defendant filed a motion in the trial court to reset the scheduled trial date of March 3. Defendant had filed three previous motions to reset the trial, two of which had been granted. The state opposed the February 17 motion.
At a hearing on February 18, the trial court agreed to issue an order requiring the state to hand over the items without the objectionable conditions. The discussion then turned to defendant's motion to reset, which the state opposed by citing numerous previous delays by the defense as evidence of a purposeful attempt to delay the trial. Defense counsel responded by stating, among other things, that adherence to the March 3 trial date would not give the defense experts sufficient time to conduct their testing. The trial court denied the motion to reset the trial date.
Pursuant to the trial court's order, the state turned over the requested physical items to the defense on Friday, February 26. On the morning of trial, March 3, defense counsel again stated that there had not been sufficient time for the defense experts to meaningfully examine the items that the state had provided. Specifically, counsel stated, " The time it takes to do the tests and follow accredited lab procedures to do the tests is between four and eight weeks from when they receive the evidence. It could be as little as four weeks. It depends on what they discover, and what retesting is needed after that." The following exchange ensued:
" THE COURT: Well, you should know whether or not they're going to find something rather quickly, shouldn't you?
" [DEFENSE COUNSEL]: We should know within weeks of them receiving the evidence, whether they'll find something.
[261 Or.App. 744] " THE COURT: And you said they received it when?
" [DEFENSE COUNSEL]: They received it Monday [March 1]. * * * It was released to the Defense on [February 26], and transported to the expert, whose identity is privileged, and they received it on [March 1] * * *.
" THE COURT: Okay. Well, I will direct you to tell your experts that they need to do their preliminary inquiry to see if there's anything there to be tested, to begin with. That should take so little time. Certainly that shouldn't take more than three weeks, and--or two weeks, if they give this case the priority it should be given.
" And if they find anything that is worth your discussion, in terms of needing a continuance,
when you get to your case in chief, bring it up. If I don't hear anything from you, I'm going to assume that there was nothing there that was found, that you need to deal with.
" And if they find something there that they need to deal with, then we need to have a conversation, and maybe we have to continue the trial for--to allow your expert to do that, but we're not going to continue this trial date. We're going to go forward with our trial, and if something comes up, you let us know, and we'll deal with it that way."
Defense counsel then objected to proceeding to voir dire without being able to complete the testing, stating, " It does affect theories of the case, how we work with and determine who is a fair and impartial jury, how we present our case to that jury in opening, and even--and how we cross-examine the State's witnesses in their case in chief." The court replied:
" And, obviously if you need to recall any of the State's witnesses because you didn't have a chance to explore, if you find something with them, ...