Submitted May 28, 2014.
Clackamas County Circuit Court CR1101757. Ronald D. Thom, Judge.
Peter Gartlan, Chief Defender, and Eric Johansen, 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 Michael R. Salvas, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.
[269 Or.App. 389] GARRETT, J.
Defendant was convicted of two counts of first-degree sexual abuse, ORS 163.427, and sentenced to a total of 112 months in prison. The victims were two girls ages 12 and 7. On appeal, defendant seeks reversal of the convictions. In his first, second, and third assignments of error, defendant challenges the trial court's admission into evidence of a videotaped interrogation of defendant by Detective Gates. The videotape, which was played for the jury, includes statements by Gates expressing her views that defendant was lying and that the victims were telling the truth. Defendant argues that those statements were prejudicial comments on the credibility of defendant and the victims and should have been excluded under OEC 403. The state responds that defendant's OEC 403 argument was unpreserved and that the trial court's admission of the evidence was not plain error. We agree with the state, and we affirm the judgment.
The conduct at issue occurred at the home of D, the 12-year-old victim. She lived there with her mother, father, and two brothers. A, the seven-year-old victim, is related to the family and stayed at the home one night. Defendant was a close friend of the family and also stayed that night. Both D and A later reported to family members that defendant had touched them. D said that she awoke to find defendant rubbing her thigh near her genital area. A said that defendant had touched her under her clothes. She later told a CARES interviewer that defendant had touched her on her " pee" with his hand.
Gates received a report of suspected abuse from the Department of Human Services and attended A's CARES interview. Gates later interviewed defendant; at the end of that approximately two-hour interview, she arrested defendant. That videotaped interview is the subject of this appeal. In the interview, defendant repeatedly denied the allegations. Gates made numerous comments indicating [269 Or.App. 390] that she believed the victims and that defendant was not being truthful. The following examples are illustrative:
" [GATES:] [B]ut if I have someone saying a completely different story than everyone else--I have a little kid saying you did something, and she's crying and scared, doesn't want to go back to grandma and grandpa's, has no reason to lie about this, has no reason to pin it on you. She doesn't know you.
" * * * I have a little girl that's saying what she's saying, and I've got a video of it, and it's extremely telling [because] it's heartbreaking. The girl had no history of, you know, lying, making accusations against people that have turned out to be lies.
" We have [D] that you sat here yourself and said she's a ...