Argued and Submitted September 29, 2014
Jackson County Circuit Court. 120791FE. Richard L.
David O. Ferry, Senior Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. Seth Jared Logston filed the supplemental brief pro se.
Peenesh Shah, Assistant Attorney General, argued the cause for appellant. 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.
[270 Or.App. 298] NAKAMOTO, J.
Defendant appeals a judgment of conviction for two counts of first-degree sexual abuse, ORS 163.427, asserting that an improper closing argument by the prosecutor violated his right to a fair trial. The conviction rested largely on the complainant's testimony describing the abuse, with corroboration by other witnesses to whom she had reported it. At trial, three defense witnesses--relatives of defendant and the complainant--provided opinions that the complainant was untruthful and had a reputation in their family for untruthfulness. During rebuttal closing argument, the prosecutor stated that defendant had not given " one single good example of what exactly" a reputation for being a liar meant, urging jurors to disbelieve the defense witnesses regarding the complainant's lack of credibility. The trial court overruled defendant's objection. On appeal, defendant contends that the state's closing argument was improper because Oregon evidence rules precluded defendant from presenting specific instances of the complainant's untruthfulness. We reverse and remand, because the argument improperly focused the jury on a factual deficit
that defendant was powerless to ameliorate and likely affected the verdict.
The relevant facts are primarily procedural. The complainant was defendant's cousin and was approximately age 10 at the time of the alleged conduct. Defendant babysat the complainant and other young cousins during family gatherings. The complainant testified that defendant touched her vagina under her clothes on several occasions while defendant was babysitting. The state also called other witnesses to testify, including a school friend of the complainant, the complainant's mother, defendant's mother, and investigating officers.
Defendant testified and denied that he had sexually abused the complainant. Defendant also called three [270 Or.App. 299] relatives who testified that the complainant had a character trait of untruthfulness. Defendant's mother testified that, based on her contacts with the complainant, she had formed the opinion that the complainant was " not always truthful." Defense counsel asked her whether she was familiar with the complainant's reputation for honesty in her family. After the witness said yes, defense counsel asked, " [W]ithout describing anything specific, how are you familiar with her reputation?" Defendant's mother stated that the complainant's reputation for honesty within the family was that she was " [n]ot always truthful." Continuing his direct examination of defendant's mother, defense counsel asked a question moments later that appeared to allow her to describe a specific example of the complainant's dishonesty at a time when the witness was babysitting a number of children, including the complainant and her brother. The prosecutor objected and stated, " I don't know if this is going to get into specific character evidence." Defense counsel then appears to have clarified that he would not be asking for any kind of character evidence, and the court allowed the question. An older relative of the complainant and defendant also testified that she occasionally had had contact with the complainant by babysitting her or by going to family events. She testified that the complainant's character for truthfulness was " [n]ot very good," that the complainant " lies," and that the complainant's reputation within the family for honesty was that she was " [n]ot very honest." Defendant's sister testified that she was the regular babysitter for the complainant's younger brother and would also babysit the complainant and that, in her opinion, the complainant was " not a truthful child." Defendant's sister also testified to the complainant's reputation for truthfulness within the family, stating that she " is known to be an untruthful child."
During closing arguments, defense counsel argued, among other points, that the detective's interview of the complainant had been leading and improper; family members who observed the complainant's interactions with defendant testified that her demeanor had never changed around him and that she had not displayed any fear of him; and the jury had heard from family members who knew that the complainant was recognized in the family for being dishonest [270 Or.App. 300] and who also held personal opinions, based on their contacts with her, that she was dishonest. In rebuttal, the prosecutor argued, in part, that defendant's witnesses were biased in his favor:
" And these people came in here today and it's understandable. This is a serious case for them, too. When you're evaluating witness testimony, it says you need to look at evidence concerning the biased motives and interests of the witness. All those witnesses that came in here today are family close to [defendant]. They have a bias. They have a motive. They have an interest. That's why they came here today ...