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State v. Pergande

Court of Appeals of Oregon

April 8, 2015

STATE OF OREGON, Plaintiff-Respondent,
v.
EDWARD JOSEPH PERGANDE, Defendant-Appellant

Argued and Submitted December 19, 2013.

Page 246

08CF048. Morrow County Circuit Court. Eva J. Temple, Judge.

Zachary Lovett Mazer, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Rebecca M. Johansen, 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 Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.

OPINION

Page 247

[270 Or.App. 281] ARMSTRONG, P. J.

Defendant appeals a judgment of conviction for first-degree rape (Count 1), unlawful sexual penetration (Count 2), first-degree sexual abuse (Counts 3 and 4), and coercion (Counts 5 and 6).[1] We write to address only defendant's third assignment of error because our disposition on that assignment obviates the need to address his other evidentiary assignments of error. In that assignment, defendant argues that the trial court plainly erred in allowing a clinical social worker to testify that she did not see any indications that the child complainants were subjected to suggestion or coaching because that testimony constituted an impermissible comment on the credibility of the complainants under State v. Lupoli, 348 Or. 346, 234 P.3d 117 (2010). We agree that the admission of that evidence constitutes plain error that we should exercise our discretion to correct and, accordingly, reverse and remand defendant's convictions on Counts 1 through 6.

The facts relevant to defendant's third assignment of error are largely procedural and undisputed. Defendant's convictions stem from his alleged physical and sexual abuse of his then-girlfriend's two daughters, S and J. The children's disclosure of the sexual abuse did not occur until several months after it had allegedly occurred. When the children were examined, there was no physical evidence of sexual abuse.

Both S and J testified at trial. A clinical social worker, Terry, also testified. Terry treated both S and J for about a year and a half and testified to, among other things, the statements that each child had made during treatment about the abuse and her diagnosis of both girls as having post traumatic stress disorder based on the sexual abuse. In the course of her direct examination, Terry discussed, in general, the suggestibility of children and the things to look for in determining whether a child has been coached, such as the use of age-appropriate language. After testimony about S's and J's statements about the abuse, Terry had the following exchange with the prosecutor:

[270 Or.App. 282] " [PROSECUTOR:] Were their--were their responses--were they able to give you spontaneous and descriptive details of their abuse?
" [TERRY:] Oh, throughout the time, yeah.
" [PROSECUTOR:] And did you find--you've testified--told us some time ago about the kinds of indications you saw [ sic ] suggestion or coaching. And did you see any of ...

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