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State v. Ashkins

Court of Appeals of Oregon

May 29, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
SCOTT MICHAEL ASHKINS, Defendant-Appellant

Argued and Submitted January 31, 2013.

Marion County Circuit Court. 10C42610. Albin W. Norblad, Judge.

Jason E. Thompson argued the cause for appellant. With him on the brief was Ferder Casebeer French & Thompson, LLP.

Michael Casper, Deputy Solicitor General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Pamela J. Walsh, Assistant Attorney General.

Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.

OPINION

Page 1192

[263 Or.App. 209] ORTEGA, P. J.

Defendant appeals his convictions for first-degree rape (Count 1), ORS 163.375,[1] first-degree sodomy (Count 2), ORS 163.405,[2] and second-degree unlawful penetration (Count 3), ORS 163.408.[3] Defendant assigns

Page 1193

error to the trial court's admission of hearsay statements made by the victim, contending that the state's notice of its intent to offer those statements did not meet the particularity requirements of OEC 803(18a)(b). We conclude that the state's notice was sufficient under OEC 803(18a)(b) and that, therefore, the trial court did not err in admitting the victim's hearsay statements. Defendant also assigns error to the trial court's decision not to instruct the jury that it must agree, under State v. Boots, 308 Or. 371, 780 P.2d 725 (1989), cert den, 510 U.S. 1013, 114 S.Ct. 606, 126 L.Ed.2d 571 (1993), on which factual occurrence was the basis for each of the charges against him.[4] We conclude that the trial court's rejection of defendant's requested Boots instruction was not error. Accordingly, we affirm.

The undisputed facts relevant to our decision are as follows. In 2003, defendant married and began to live [263 Or.App. 210] with the victim's mother along with the victim, the victim's brother, and his own son. In 2009, the victim's mother reported to the Marion County Sheriff's Office that defendant had been " mentally, sexually, and physically abus[ing]" the victim repeatedly for the preceding four years. In February 2010, the victim, then 15 years old, told detective Hingston that defendant had sexual intercourse with her in the bedroom, bathroom, kitchen, and living room of the family home. She also told Hingston that defendant had vaginally penetrated her eight times with a toy rocket and that she had performed oral sex on him approximately three times. Hingston recorded those statements in an investigative report submitted on February 18, 2010.

Shortly thereafter, defendant was indicted on one count each of rape in the first degree, sodomy in the first degree, and unlawful sexual penetration in the second degree.[5] Those counts in the indictment alleged that, on or between January 1, 2007 to March 23, 2010, the occasions of unlawful sexual contact occurred in Marion County when the victim was under the age of 16 for Counts 1 and 2, and under the age of 14 for Count 3. Count 3 specifically identified defendant's finger as the " object other than [his] penis or mouth" that unlawfully penetrated the victim (" to wit: his finger" ).

The state provided notice to defendant of its intent to rely at trial on statements made by the victim to a forensic interviewer and to Hingston. The notice provided, in part, that the state intended to rely at trial on hearsay statements made by the victim

" [t]o Detective Hingston from the Marion County Sheriff's Office on February 9, 2010. The statement is set forth in Detective Hingston's report submitted February 18, 2010 and is contained beginning on page 3 of the report and ending on page 5. The report was made previously available in discovery." [6]

[263 Or.App. 211] At trial, defendant objected to Hingston's testimony about several statements the victim made to him about defendant's sexual conduct with her, arguing that the statements were hearsay and that they were not allowable under the child abuse exception to the hearsay rule, OEC 803(18a)(b), because

Page 1194

the notice provided to him by the state did not " set out the particulars," as required by State v. Chase, 240 Or.App. 541, 248 P.3d 432 (2011). The judge allowed Hingston to testify about what the victim had told him about defendant's actions toward her.

At trial, the victim testified about defendant's sexual conduct toward her in their home. The victim testified that defendant touched her in a sexual way " more than once" with his penis and fingers, and that those acts occurred " [s]ometimes on the couch[,]" " [s]ometimes on a table[,]" and " [s]ometimes in Mom and [defendant]'s--Mom's room." In response to questioning, the victim provided some detail about those locations--for example, that her autistic brother would be in his room engrossed in video games and that her mom would be at work when defendant would have sex with her on the kitchen table, during which defendant would pull off her clothes, and that she was too afraid to scream or yell for help. She also answered affirmatively to the state's question, " When [defendant] would put his penis in your vagina, did he ever use a lubricant?" The victim testified that when she was 11 or 12 years old, defendant would use his fingers to penetrate her " sometimes on the couch." She also testified that defendant would remain silent " when" he vaginally penetrated her with a red toy rocket. The victim also testified that defendant engaged in sodomy with her, saying that defendant " used to grab my hair and put my face on him, on his [penis]" and that he would have her put her face against [263 Or.App. 212] his penis " most of the time." The victim did not identify any of those occurrences of sexual abuse by a specific date or time. Defendant, for his part, denied that any of the incidents of sexual contact took place.

Hingston testified that the victim had told him that defendant had sexual intercourse with her in the bedroom and bathroom, and on the kitchen table and the couch. According to Hingston, the victim had also told him that defendant had vaginally penetrated her eight times with a toy rocket and that she had performed oral sex on defendant about three times. He also testified that the victim had described defendant using baby oil as a lubricant before having sexual intercourse with her. Regarding the victim's statements, Hingston commented that " it was hard to get details from [the victim] and specifics" and that " it was real difficult for her to kind of capture what I was looking for and explain it." He noted, however, that " victims of continued ...


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