Submitted: June 19, 2013.
Josephine County Circuit Court. 10CR0192. Pat Wolke, Judge.
Peter Gartlan, Chief Defender, and Laura A. Frikert, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Shannon T. Reel, Assistant Attorney General, filed the brief for respondent.
Before Duncan, Presiding Judge, and Wollheim, Judge, and Schuman, Senior Judge.
[262 Or.App. 163] SCHUMAN, S. J.
A jury found defendant guilty of committing multiple sexual offenses against his biological daughter, S. A., and his stepdaughter, S. H. During trial, a different stepdaughter, T. N., was allowed to testify that defendant had committed similar acts of sexual abuse against her, that she had made allegations against defendant, that the case brought against defendant on the basis of those allegations was ultimately dismissed, and that, as a result of her allegations, she was ostracized from the family. The state contended, and the court agreed, that the testimony was relevant because it helped to explain why S. A. and S. H. had delayed reporting defendant's acts involving them--that is, they delayed because they did not want to experience the same recriminations from their family that T. N. had experienced. Defendant appeals his convictions, arguing that the court erred by admitting evidence of his prior acts against T. N., because the state failed to prove by a preponderance of the evidence that, in fact, those acts occurred and defendant committed them. For the reasons that follow, we conclude that defendant failed to preserve the argument that he
now raises on appeal and that, even assuming without deciding that any error was plain, we would decline to exercise our discretion to correct that error. We therefore affirm his convictions.
Defendant and Tina Andrews were married in 1995. At the time of the marriage, Andrews had two daughters, T. N. and S. H., who were seven and four years old, respectively. Defendant also had an eight-month-old daughter, S. A. At first, T. N. and S. H. lived full time with defendant and Andrews while S. A. would visit only on weekends.
In 2001, when she was 13 years old, T. N. told Andrews that defendant had been sexually abusing her. Andrews initially believed T. N. but, after speaking with defendant, she accused T. N. of lying. As a result, Andrews stopped speaking to T. N. for about two years. During that time, T. N. was not allowed to spend holidays with the rest of the family. T. N.'s accusation, however, never went to trial; the case against defendant was dismissed.
[262 Or.App. 164] In 2006, when S. H. was 14 years old and the family was living in California, defendant (according to S. H.) began sexually abusing her. In December of that year, the family moved from California to Oregon. However, S. A. remained in California to finish the seventh grade. Defendant, again according to S. H., continued abusing her after they moved.
In the summer of 2007, S. A. moved into the family home in Oregon. Soon after, defendant allegedly began sexually abusing her as well. In 2008, defendant left Andrews and moved in with a new girlfriend. In February or March of 2009, S. A. and T. N. moved in with defendant. S. A. testified that she had hoped that, because of defendant's new relationship, he would stop seeking sexual gratification from her. However, she testified that the instances of abuse continued and, in fact, became more frequent. In August of 2009, S. A. confided in some of her friends, who then facilitated her decision to leave defendant's home. S. A. then told ...