Argued and Submitted: November 14, 2013.
Washington County Circuit Court. C110595CR. Thomas W. Kohl, Judge.
Andy Simrin argued the cause for appellant. With him on the briefs was Andy Simrin PC.
Tiffany Keast, 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 Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
[266 Or.App. 482] SERCOMBE,
Defendant appeals a judgment convicting him of second-degree rape, ORS 163.365; two counts of first-degree sexual abuse, ORS 163.427; three counts of unlawful delivery of marijuana to a minor, ORS 475.860(4)(a); and three counts of unlawful delivery of marijuana within 1,000 feet of a school, ORS 475.862. The evidence at trial was that defendant sexually abused L, his 13-year-old niece, after smoking marijuana with her. Defendant raises five assignments of error on appeal. We reject, without further discussion, defendant's third, fourth, and fifth assignments of error, and write only to address his first and second assignments. In those assignments of error, defendant contends that the trial court plainly erred in failing to strike, as impermissible vouching, the testimony of two witnesses that L's upset demeanor and crying when recounting the
sexual abuse to them was " not fake." We conclude that any error was not plain and, accordingly, affirm.
Because defendant was convicted, we summarize the relevant facts in the light most favorable to the state. State v. Barboe, 253 Or.App. 367, 369, 290 P.3d 833 (2012), rev den, 353 Or. 714, 303 P.3d 943 (2013). In early 2009, L, who was then 13 years old, lived with her father, his fiancé e (Bornman), and Bornman's daughter, M, who is the same age as L. Defendant was L's uncle; he was married to the sister of L's father. At that time, defendant lived with his wife and their three children in an apartment in Beaverton, located within 1,000 feet of a school. L was close to defendant and his family, having stayed with them on a number of occasions before her father became involved with Bornman in 2008.
By early 2009, L was sexually active and a marijuana user. Her father and Bornman were reluctant to leave L unattended when they were away from home. In March 2009, during L's spring break, father and Bornman sent L to stay at defendant's apartment while they were at work. L's father and Bornman did not know, as L later testified, that L had smoked marijuana with defendant at his apartment four or five times before then.
One morning, during the spring break stay, defendant invited L to smoke marijuana with him in his bedroom. [266 Or.App. 483] L did so and became intoxicated. L testified that defendant then " started grabbing me really rough * * * pushed me on the bed * * * [was] massaging me really, really rough * * * [and] grabbing my shoulders and my butt." Defendant took L's clothes off and then had sexual intercourse with her.
L later disclosed the sexual abuse to M, two other friends, and her boyfriend, Fuller. She told her father and Bornman about the abuse in October 2010. That disclosure was precipitated by another stay with defendant and his family (who by then had moved to L's paternal grandfather's house) during a weekend trip by father and Bornman. Before that trip and on their return, L complained about not being able to stay at home, but instead having to stay with defendant. According to Bornman's trial testimony, L appeared to be genuinely upset when Bornman and father returned from the trip. Bornman asked L what was wrong, and L disclosed and described the abuse by defendant. L then told her father about the abuse. That same day, L, her father, and Bornman went to the City of Tigard police station, where L reported the abuse to Officer Rivera. Rivera referred the matter to the Washington County Sheriff's Department, where it was investigated by Detective Rookhuyzen. Defendant was indicted for the crimes in March 2011, and the case went to trial in July of that year. During the trial, a number of witnesses described L's recounting of the sexual abuse and her demeanor while doing so, including (in order of testimony) Rivera, Rookhuyzen, Bornman, M, Fuller, and L's father. The demeanor testimony at issue was solicited by both the prosecution and the defense. Later in the trial, defense counsel asked defendant's daughter and wife about L's demeanor in family gatherings that occurred between March 2009 and October 2010.
Under questioning by the prosecutor, Rivera testified about L's emotional state during his interview of her, the same day L disclosed the sexual abuse to Bornman:
" Q. And during that time did you have a chance to observe whether or not she had any emotions one way or the other as she's talking about it?
" A. She spoke quietly, but she was sitting with her parents.
" Q. Okay.
[266 Or.App. 484] " A. I didn't observe much more.
" Q. Okay. So she wasn't hysterically upset or crying, but she was soft spoken?
" A. Yes."
Next up, Rookhuyzen spoke of interviewing L that evening. He testified that, under his direction, L had recorded a " pretext [telephone] call" to defendant at that time. The prosecutor asked whether, during the call, L " was nervous or was calm or do you remember anything about how she appeared to you, her demeanor?" Rookhuyzen responded, " She seemed pretty calm."
Bornman then testified that, upon father's and her return from a weekend trip in October 2010, L told Bornman about the sexual abuse by defendant following their use of marijuana. The prosecutor then asked about L's demeanor when she spoke with Bornman:
" Q. Okay. And how was she--what would you say her demeanor was? And when I use the word demeanor, I mean emotionally how was she acting when she was telling you these things?
" A. She was upset. She started crying. And her biggest fear with all of this was she loves her family. She loves her cousins. She loves her--
" [DEFENSE COUNSEL]: Objection, Your Honor.
" A. --aunt.
" THE COURT: Basis?
" [DEFENSE COUNSEL]: She's testifying to what--
" [PROSECUTOR]: I can ask the question in a different way.
" THE COURT: Okay.
" Q. (By [PROSECUTOR]) Did she tell you what her fears were when she was crying and telling you about the abuse that the defendant had done to her?
" A. Her fears were that it was going to break up the family and she wasn't going to be able to see her cousins or her aunt again.
" * * * * *
[266 Or.App. 485] " Q. Tell us how it's been on [L] since that point in time until today.
" A. [L's] not been allowed to see her cousins. She hasn't talked to her aunt. She has no involvement with that family at this point. She's not allowed to talk to any of them, and ...