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State v. Phillips

Court of Appeals of Oregon

October 15, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
ROBERT DEAN PHILLIPS, Defendant-Appellant

Argued and submitted: May 20, 2013.

Lane County Circuit Court. 201023393. Darryl L. Larson, Senior Judge.

Kevin T. Lafky argued the cause for appellant. With him on the briefs was Lafky & Lafky.

Leigh A. Salmon, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.

OPINION

Page 191

[266 Or.App. 241] ARMSTRONG, P. J.

Defendant appeals a judgment of conviction for two counts of first-degree sexual abuse, ORS 163.427, and a number of drug-related offenses, challenging only his convictions for first-degree sexual abuse. Defendant raises seven assignments of error, relating to the trial court's denial of his suppression motion, various evidentiary rulings, and its instruction that the jury could find defendant guilty by a nonunanimous vote. We write to address only defendant's first assignment of error, and we reject his remaining assignments without written discussion. In his first assignment of error, defendant contends that the trial court erred when it allowed the state to introduce hearsay statements contained in a video-recorded interview of the victim, arguing that the state failed to provide him adequate notice of its intent to offer the statements, as required by OEC 803(18a)(b). For the reasons that follow, we affirm.

In 2010, eleven-year-old M disclosed to her mother that her father, defendant, had sexually abused her. M was subsequently examined at Kids' First Center of Lane County, an organization that interviews and counsels child victims of abuse, where she explained that defendant would have her sit naked on his stomach and masturbate him and that the abuse had last occurred when she was six years old. Also during that interview, M indicated that defendant, who fostered developmentally disabled adults at his home, had abused his clients, grew marijuana in a shed on his property, and kept drug paraphernalia and marijuana in various locations at his home.

Detective Humphreys of the Springfield Police Department was present for M's interview, which he observed on a television monitor in another room. Humphreys subsequently arranged to record a telephone call between M and defendant, in which M asked defendant about inappropriate touching and defendant denied any wrongdoing. Several days later, Humphreys, along with two narcotics detectives, went to defendant's home to investigate the allegations. They wore plain clothes and drove unmarked police cars. The officers knocked on defendant's door, and defendant invited them inside.

[266 Or.App. 242] When asked if he knew why the officers had come to his home, defendant told Humphreys that he had received a call from M in which M asked defendant about inappropriate touching and that he believed that the officers were there to investigate those allegations of abuse. Humphreys explained that they were also investigating allegations that defendant had abused his clients but did not mention the narcotics investigation. Humphreys asked for consent to search the house

Page 192

to verify the safety and living conditions of the clients. Defendant gave consent, and, in the subsequent search, the officers discovered evidence of a marijuana-growing operation, along with marijuana and MDMA.[1]

While the narcotics detectives processed that evidence, Humphreys informed defendant that he was not under arrest and advised him of his Miranda rights. Humphreys and defendant discussed defendant's marijuana-growing operation and his personal use of marijuana and MDMA. The conversation then turned to M. Defendant explained that he had found M's recent phone call odd and denied that he had ever touched M inappropriately. However, defendant recounted a time, approximately four years before, that he had been sleeping in the same room as M and had awakened to M sitting on top of him and touching him in a way that made him ...


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