Argued and Submitted January 2, 2014.
[Copyrighted Material Omitted]
Malheur County Circuit Court. 09082394C. J. Burdette Pratt, Judge.
Jesse Wm. Barton argued the cause and filed the brief for appellant.
Matthew J. Lysne, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.[*]
[263 Or.App. 96] GARRETT, J.
Defendant was convicted of three counts of first-degree sodomy, ORS 163.405, one count of second-degree sodomy, ORS 163.395, five counts of first-degree sexual abuse, ORS 163.427, and one count of second-degree rape, ORS 163.365. The trial court imposed consecutive sentences on all but two counts, for a total sentence of 569 months. On appeal, defendant argues that the trial court erroneously (1) allowed the state to show the jury videotaped interviews of defendant's victims; (2) allowed the state to introduce expert opinion testimony from a lay witness; (3) denied defendant's motion for a mistrial based on the state's closing and rebuttal arguments; and (4) made certain determinations at sentencing that, defendant argues, should have been submitted to the jury. We reject defendant's arguments and, accordingly, affirm the judgment.
Defendant was charged with sexually abusing, sodomizing, and raping two of his stepdaughters, S and K, during the several years that he was married to their mother. S and K both came forward to describe the abuse several years after it was alleged to have occurred.
Of importance to this appeal are two videotaped interviews that S and K gave at the Sexual Trauma Abuse Response Center (STAR Center). In those interviews, both victims reported numerous instances of sexual
abuse, some of which resulted in charges against defendant and some of which did not. S also referenced defendant smoking crystal methamphetamine and blowing the smoke into S's mouth; this conduct was not included in the state's charges against defendant. In the videotapes, S and K also answered personal background questions about topics including their schooling, hobbies, and pets. S and K both testified at the trial about the sexual abuse; much of that testimony reflected what they had described in the STAR Center interviews.
Before trial, defendant moved to exclude the STAR Center videotaped interviews, arguing that they contained (1) inadmissible hearsay, (2) evidence that was not relevant under OEC 402, (3) evidence that was unfairly prejudicial [263 Or.App. 97] under OEC 403, and (4) evidence of other prior bad acts that was not admissible under OEC 404(3). During a hearing on defendant's motion, the state conceded, and the trial court ruled, that the videotaped interview of S was hearsay and that the hearsay exception in OEC 803(18a)(b) did not apply. The court then played the videotape of K's STAR Center interview for the record. At the conclusion of the video, defendant objected to several portions of the video. Specifically, defendant argued that, because the interviewer in the video had told K that, during interviews, " we always tell the truth," the STAR Center staff had effectively vouched for K's credibility. Defendant also argued that portions of the video in which K provided personal information were irrelevant and prejudicial because they had the potential to unfairly endear K to the jury. Finally, defendant argued that, to the extent K was describing crimes committed against S, the OEC 803(18a)(b) hearsay exception did not apply.
The trial court agreed that K's descriptions of defendant committing crimes against S were inadmissible hearsay and would need to be redacted. The court ruled that the other portions of the videotape were admissible under OEC 803(18a)(b), OEC 401, and OEC 403. The court explained its reasoning as follows:
" I don't view the description of the rules as being vouching. [The staff person] didn't say anything about whether she believed [K] or not, she simply said, 'These are the rules. We want you [to] tell the truth, we want you to follow these rules.' And certainly, I think it's significant and important for the jury to hear that to understand the setting for the--her later discussion. The same thing with the small talk, if you will, about who [K] is and where [K] lives and so forth. Certainly, if [the staff person] simply walked in, sat down, and says, 'Okay, tell me about your sexual abuse' the jury should have the right to understand that also. I think the jury has the right to understand the context in which these discussions took place. I don't see anything [263 Or.App. 98] prejudicial about that. They are simply, 'Where do you live? [What] are your favorite classes?' Those kinds of things. It simply sets the tone and lets the jury understand what the circumstances and the environment [were]."
The state did not introduce either videotape during its case-in-chief. During defendant's opening statement, defendant's counsel suggested that the children's mother had convinced S and K to lie about defendant's abuse because she was angry about defendant's infidelity and the fact that he had impregnated another woman. Defendant questioned Ontario Police Detective Rodriguez and criticized the police investigation as deficient in numerous respects. In particular, Rodriguez testified that police had relied almost exclusively on the STAR Center interviews and had not done follow-up interviews with S or K, their mother, defendant, or other family members.
Rodriguez responded to the state's question about the STAR Center staff's ability to investigate crimes by testifying that he " was satisfied with the interview that took place." He also explained that he had not personally
interviewed S or K because he believed that they would feel uncomfortable speaking to a male police officer and that, based on his past dealings with defendant and his family, he believed that it would have been counterproductive to contact them about the investigation.
Having previously authenticated the two videotaped STAR Center interviews, the state moved to admit them on the ground that, because defendant had made an issue of the adequacy of the investigation, the recordings were admissible for the nonhearsay purpose of showing that Rodriguez's investigation was adequate. The trial court admitted the recordings over defendant's objections:
" I'm allowing it in--[defense counsel] raised the issue as to whether or not the length of the interviews [was] sufficient given the timeframe. And I'm going to allow it in so that the jurors can see what the interview consisted of so they can determine whether or not, under the circumstances, it was an appropriate investigation. That's the issue [the defense has] been raising: [W]as this an appropriate investigation? Did you talk to certain people? The interview wasn't long enough given the circumstances. Given that issue, the [263 Or.App. 99] content of the interview is significant as to whether it was an appropriately long interview. And so you can't criticize the length and then not allow the jury to see the content so they can determine whether or not it was an appropriately lengthy interview."
Before playing the videotapes for the jury, the court issued the following limiting instruction:
" [The tapes are] not being offered to prove the truth of what was being said. In other words, you should not view them from the standpoint of whether or not what is being said is true or not. But the issue has been raised as to whether or not the interviews were lengthy enough and were--whether or not the interviews were adequate. And so I'm going to--I'm admitting [the tapes] for the purpose of allowing you to see the content of those interviews so you can make that judgment as to whether or not the time and length of the interview was adequate. But you should not accept what is being said there as necessarily being true."
This appeal also concerns the testimony of a former Department of Human Services caseworker who had visited the family's home in 1998 to investigate a report of unsanitary living conditions. The former caseworker, Hansen, testified that she found the report to be unsubstantiated and that " [e]verything appeared fine" at the house. Defendant did not ask Hansen about sexual abuse. During cross-examination, the state asked whether Hansen had been sent to investigate sexual abuse and whether anyone reported sexual abuse during her visit. Hansen answered " no" to both questions. The state then asked, " [I]s it your experience that kids automatically just tell you if they're being sexually abused?" Defendant objected, and the court excused the jury.
Defendant argued that, to the extent that Hansen intended to testify generally about the behaviors of sexually abused children, such testimony is scientific evidence that Hansen was unqualified to offer. Defendant also argued that the state's questioning went beyond the scope of direct examination of Hansen. The state then attempted to lay a proper foundation for the introduction of scientific evidence. Hansen testified that she had worked for child protective services for a total of 13 years; that she had a bachelor's [263 Or.App. 100] degree in social work; and that she had received specialized training in " child sexual abuse, on neglect, on psychological damage, law enforcement issues on how to interview, those types of things." She stated that she had worked on 100 cases involving child sexual abuse and had testified as an expert witness " on the issue of child sexual abuse" more than 20 times. She also acknowledged, however, that she was not a licensed psychologist and that she was not " qualified to do psychological evaluations."
The court ruled that Hansen would be allowed to testify about her own experience with children who were victims of sexual abuse but would not be allowed to offer
scientific evidence. Hansen then testified:
" [THE STATE]: Now, over the course of your career, have you had an experience to interview a kid who would not disclose any form of abuse, but years ...