Argued and Submitted January 15, 2014
Marion County Circuit Court. 12C42527. Albin W. Norblad, Judge.
Jason E. Thompson argued the cause for appellant. With him on the brief was Ferder Casebeer French & Thompson, LLP.
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 Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[267 Or.App. 572] NAKAMOTO, J.
Two of defendant's great-grandchildren, five-year-old K and four-year-old A, separately reported that defendant had sexually abused them. Following a consolidated jury trial, defendant was found guilty on all charges related to A and not guilty on the single charge related to K. Defendant appeals the resulting judgment of conviction for two counts each of sodomy in the first degree, ORS 163.405, and sexual abuse in the first degree, ORS 163.427. First, he argues that the trial court erred by admitting A's hearsay statements under OEC 803(18a)(b) because the state failed to satisfy the notice requirements of that statute; we reject that assignment of error without discussion. Second, he assigns error to the trial court's failure to strike, sua sponte, certain testimony by one of the state's witnesses. The state elicited the testimony without defendant's objection, but, according to defendant, it amounted to an impermissible comment on A's credibility. For the reasons that follow, we conclude that defendant has not established that the trial court committed plain error. We thus affirm.
We state the facts necessary to provide context for the testimony at issue on appeal. K told her mother that defendant " tickles me down there[,]" pointing to her vagina. K's mother took her to Liberty House, a child abuse assessment center, where she was interviewed. No charges were filed against defendant at that time. Subsequently, A told her mother that defendant made her put his penis in her mouth and touch his genitals. A's mother filed a report with the police, who referred A to Liberty House. There, A repeated the abuse allegations to a Liberty House interviewer, Mills. A's physical exam did not reveal physical signs of abuse. A police investigation ensued. The detective assigned to the case did not interview A because " [t]he interview had already been conducted by Liberty House[.]" Defendant was ultimately arrested and charged with various counts of sexual abuse and sodomy.
At trial, the victims and Mills testified on behalf of the state. On appeal, defendant challenges for the first time the trial court's failure to strike a portion of Mills's testimony. In evaluating whether the trial court plainly erred, [267 Or.App. 573] " we must consider the entire context" in which the challenged comments were given. State v. Corkill, 262 Or.App. 543, 544, 325 P.3d 796, rev den, 355 Or. 751, 331 P.3d 1010 (2014). We thus describe the trial proceedings involving Mills's testimony in some detail.
Mills, a " nationally certified counselor," stated that at Liberty House his " specialty or * * * expertise" was interviewing complainants. Mills estimated that he had interviewed " a couple hundred" children aged five or six years old. On direct examination, the prosecutor asked Mills to describe the specificity of A's disclosure of abuse during his interview of her:
" [PROSECUTOR:] Was this a descriptive disclosure, not so descriptive disclosure? How would you describe it?
" A. I would--the--I'm in court and I'm being honest. The word that comes to my mind is this is a solid description from a child this age. I would say that her development seemed solid enough. And I have talked with kids of this age who have given less description than she did."
On cross-examination, defendant questioned Mills, in part, concerning false accusations by children:
" [DEFENSE COUNSEL:] Okay. Now, you had testified that you have interviewed hundreds of children. And have you, through your experience of these interviews of hundreds of children, encountered incidences where the children had ...