Submitted May 27, 2014
Crook County Circuit Court. 12FE0008. Gary Lee Williams, Judge.
Peter Gartlan, Chief Defender, and Mary M. Reese, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Rolf C. Moan, Assistant Attorney General, filed the brief for respondent.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Mooney, Judge pro tempore.
[268 Or.App. 735] SERCOMBE, P. J.
Following a jury trial, defendant was convicted of one count of first-degree rape, ORS 163.375, two counts of first-degree sexual abuse, ORS 163.427, and one count of incest, ORS 163.525. He appeals from the resulting judgment, raising three assignments of error. We reject without discussion defendant's second and third assignments of error, and write only to address his first assignment in which he asserts that the trial court erred in admitting expert testimony concerning the victim's ability to consent. As explained below, we reject defendant's contention and, therefore, affirm.
We state the background facts necessary to provide context for the evidence at issue on appeal. The victim in this case is defendant's adult daughter who suffers from cerebral palsy and severe intellectual disabilities. The victim cannot speak, read, use sign language, walk unassisted, or use a toilet, nor can she feed, groom, dress, or bathe herself. Defendant was the victim's primary caretaker and, as part of that caretaking, bathed the victim and changed her diapers. On more than one occasion over a number of months, defendant had sexual intercourse with the victim.
After it became apparent to him that the victim was pregnant, defendant told his wife that he had engaged [268 Or.App. 736] in sexual contact with the victim. Defendant's wife reported the conduct to the police and, during a subsequent interview with officers, defendant admitted to having engaged in sexual conduct with the victim on more than one occasion. Defendant was charged with two counts of first-degree rape, two counts of first-degree sexual abuse, and two counts of incest. One of the rape counts was based on the allegation that the victim was incapable of consenting to sexual intercourse by reason of mental defect and the other was based on the allegation that the victim was incapable of consent because of physical helplessness. Similarly, one sexual abuse count alleged that the victim had a mental defect and the other alleged that she was physically helpless.
At trial, it was undisputed that defendant had engaged in sexual conduct with the victim and that she had become pregnant as a result. However, based on the allegations in the indictment, the state was required to prove that the victim was incapable of consent by reason of mental defect or physical helplessness. For the purposes of first-degree rape and sexual abuse, the term " '[m]entally defective' means that a person suffers from a mental disease or defect that renders the person incapable of appraising the nature of the conduct of the person." ORS 163.305(3). " ORS 163.305(3) refers to a mental defect that prevents one from appraising the nature of one's own conduct. The 'appraisal' must constitute an exercise of judgment and the making of choices based on
an understanding of the nature of one's own conduct." State v. Reed, 339 Or. 239, 244, 118 P.3d 791 (2005). " 'Physically helpless' means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act." ORS 163.305(5).
Although she could not testify, the state presented a video of the victim. In addition, among other things, the state presented expert testimony from a clinical psychologist, Dr. Elena Balduzzi, that the victim was not competent to consent to sexual activity. After defendant objected to Balduzzi's conclusions, asserting that the testimony was " lacking any foundation in scientific evidence," the court [268 Or.App. 737] held a hearing to determine whether the evidence met the standards articulated in State v. Brown, 297 Or. 404, 687 P.2d 751 (1984), and State v. O'Key, 321 Or. 285, 899 P.2d 663 (1995), for the admission of scientific evidence under OEC 702 and OEC 401. At the hearing, the court heard evidence--set forth in detail later in this opinion--relating to Balduzzi's assessment of the victim and, in particular, her use of the " Sexual Consent and Education Assessment" (SCEA).
The court concluded that the evidence was relevant under OEC 401, and helpful to the jury under OEC 702. In particular, the court evaluated the scientific validity of the evidence under the factors set forth in Brown and O'Key. The court concluded that the evidence was relevant under OEC 401 and that it was scientifically valid and admissible. Accordingly, the court denied defendant's motion to exclude Balduzzi's testimony that, based on her assessment using the SCEA protocol, the victim was incapable of consenting to sexual conduct. The jury ultimately convicted defendant of one count of first-degree rape (based on inability to consent by reason of physical helplessness), two counts of [268 Or.App. 738] first-degree sexual abuse (based on inability to consent, one by reason of mental defect and the other by reason of physical helplessness), and one count of incest.
Defendant challenges the rape and sexual abuse convictions on appeal, asserting that the " trial court erred in admitting Balduzzi's opinion that [the victim] was not competent to consent to sexual activity and her related testimony sustaining that opinion." In defendant's view, Balduzzi's opinion based on the SCEA did not possess sufficient indicia of scientific reliability and, therefore, was not admissible. The state " agrees with defendant that the testimony was 'scientific' evidence and thus had to satisfy the standards articulated in State v. Brown, * * * and State v. O'Key " for admitting scientific evidence under OEC 702 and OEC 401. It contends that it " demonstrated that Dr. Balduzzi's testimony about the SCEA, and about its application to the victim was--in O'Key 's words, and in light of its seven-factor test--'based on scientifically valid principles and * * * pertinent to ...