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State v. Swinney

Court of Appeals of Oregon

March 11, 2015

STATE OF OREGON, Plaintiff-Respondent,
CRAIG ALAN SWINNEY, Defendant-Appellant

Submitted November 26, 2013

Josephine County Circuit Court 10CR0269. Pat Wolke, 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 Ryan Kahn, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.


Page 510

[269 Or.App. 549] ORTEGA, P. J.

Defendant appeals a judgment of conviction for six counts of first-degree sexual abuse, ORS 163.427; one count of first-degree unlawful sexual penetration, ORS 163.411; one count of first-degree sodomy, ORS 163.405; one count of second-degree unlawful sexual penetration, ORS 163.408; one count of second-degree sodomy, ORS 163.395; and one count of first-degree rape, ORS 163.375. Defendant challenges the trial court's admission of a police detective's expert testimony regarding grooming behavior generally and his opinion that defendant's behavior as described by the victim was consistent with grooming behavior. We write to address defendant's arguments that the detective's testimony is not relevant under OEC 401, that it did not assist the trier of fact because the detective was not sufficiently qualified as an expert under OEC 702, and that the trial court should have excluded the

Page 511

grooming evidence sua sponte because it constituted an indirect comment on the victim's credibility.[1] We conclude that the grooming evidence was relevant, that the detective was sufficiently qualified as an expert to testify as he did, and that the testimony did not constitute a comment on the victim's credibility. Accordingly, we affirm.

The following trial evidence is pertinent to our review. Defendant met the victim when she was about six years old and living in Sacramento, California. The victim's mother had multiple sclerosis that affected her vision and physical mobility, making it difficult for her to perform housework. In order to pool financial resources and to help the victim's mother with housework, defendant, his wife, and his two children moved in with the victim and her mother. When the victim was about seven, defendant's wife and two children moved out of the house and defendant began a romantic relationship with the victim's mother. The victim testified that she viewed defendant as her father. Around the same time, he began tucking her in at night. As he did so, he would kiss her on the lips and say goodnight. Those kisses progressed from " a peck" to kisses that were " more involved, *** [l]ike a girlfriend kisses her boyfriend." When [269 Or.App. 550] the victim was about eight-and-a-half, defendant began kissing her with his tongue. At first, the victim felt " awkward" about the kisses, but after a time, she thought the kisses were normal, and they made her feel like defendant loved her.

When the victim was almost 10, the family moved to Oregon and began living at a campground in Cave Junction. The victim stayed in a tent separate from her mother and defendant, but she testified that defendant continued to kiss her at night, progressively kissing her for longer periods of time. As he would kiss her, defendant began to hug her and rub his hands on her chest over her clothes. The victim described learning to kiss defendant back and feeling loved and cared for, particularly because she was a " bigger kid" who had been made fun of for being fat and the kissing made her feel like someone thought she was pretty. Defendant had been the only protective male figure in her life. While living at the campground, defendant and the victim would swim in a nearby river; defendant would often throw the victim while they were in the water and would touch her bottom and vagina, briefly rubbing her vagina right before he released her.

After living at the campground for a few months, the family moved into a trailer on a nearby ranch. By that time, the victim's mother's health had declined; she was almost blind, and she took sleeping pills and smoked marijuana, which meant that she slept heavily at night. The victim testified that defendant continued to kiss her at night and began touching her over her clothes on her breasts, stomach, hips, thighs, and vagina, and would rub on the top of her vagina. She described feeling " weird" about that at first, but then becoming accustomed to it and liking it. She testified that, after a few months of that, defendant began touching her vagina underneath ...

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