Argued and Submitted April 8, 2014.
Marion County Circuit Court 10C41248. Lindsay R. Partridge, Judge.
Wayne Mackeson argued the cause for appellant. With him on the brief were Kelly Jaske and Wayne Mackeson, P.C.
Jennifer S. Lloyd, Attorney-in-Charge, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Janet A. Klapstein, Senior Assistant Attorney General.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[264 Or.App. 217] TOOKEY, J.
Defendant appeals, challenging his convictions for four counts of sexual abuse in the first degree, ORS 163.427. We reject without discussion defendant's first and third assignments of error. We write only to address defendant's second assignment of error, in which he argues that the trial court improperly excluded the testimony of two witnesses as alibi evidence under ORS 135.455. We agree with defendant that the trial court erred in excluding that evidence, but we conclude that the error was harmless. Accordingly, we affirm.
The record discloses the following facts. In 2007, 2008, and 2009, the victim, J, and her family visited the grandmother's house on weekends. Members of J's extended family lived at the grandmother's house, including defendant, J's aunt (defendant's wife), J's uncle, and J's cousins. J and her brothers sometimes spent the night at their grandmother's house, and J slept with her grandmother in her grandmother's bed.
In 2009, J's mother talked to J and her brothers about " good touch/bad touch" during a family dinner, and J disclosed that she was being touched by defendant. J was interviewed at Liberty House, a child abuse assessment center. She told the interviewer that, when her grandmother went to work in the mornings, defendant would sometimes " get into the bed and start touching her * * * pretty much everywhere[.]" Defendant was later indicted on four counts of first-degree sexual abuse based on acts occurring " on or between January 1, 2006 to September 30, 2009[.]"
[264 Or.App. 218] At defendant's bench trial, J testified that she and her brothers spent the night at her grandmother's house about 10 times each year, and that the touching began when she was around eight years old. The touching occurred " [a] lot" in her grandmother's room--more than five times; she would wake up " in the middle of the night or at like 6:00 [a.m.]
or something because [her grandmother] would leave at 5:00 [a.m.] to work," and she would see defendant standing in front of the bed, watching her. Defendant would then lie down on top of J and touch her private areas; he rubbed her breasts and genital area on top of and under her clothes. J's aunt would " be asleep" and would not get up until later on--" [a] couple hours later." J also testified that the touching happened at other times and in other rooms: once, while family members were at the airport and once, while J was watching television.
Other witnesses were called to testify at trial, including the grandmother and aunt. According to defense counsel's offer of proof, ...