Submitted June 18, 2014
12FE0153. Deschutes County Circuit Court. Wells B. Ashby, Judge.
Peter Gartlan, Chief Defender, and Daniel C. Bennett, Senior Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Karla H. Ferrall, Assistant Attorney General, filed the briefs for respondent.
Before Duncan, Presiding Judge, and Haselton, Chief Judge, and Wollheim, Senior Judge.
[271 Or.App. 2] HASELTON, C. J.
Defendant, who was convicted of various sexual offenses involving multiple victims, appeals. We write only to address defendant's assertions that the trial court committed reversible " plain error" by (1) admitting " vouching" testimony by a witness, Muggia, relating to victim RW's credibility with respect to Count 4 (first-degree unlawful sexual penetration) and (2) failing to instruct the jury as to the requisite mental state for forcible compulsion, a material element of first-degree sodomy and attempted first-degree sodomy, as charged in Counts 1 and 5. As explained below, the asserted errors either do not qualify as " plain error," see State v. Brown, 310 Or. 347, 355, 800 P.2d 259 (1990), or we decline to exercise our discretion to correct them, see Ailes v. Portland Meadows, Inc., 312 Or. 376, 381-82, 823 P.2d 956 (1991). Accordingly, we affirm defendant's convictions.
As pertinent to our review, defendant was charged with, and convicted of, committing sex offenses against a girl and two women who are directly, or collaterally, related to his wife: (1) RW, his step-granddaughter; (2) E, an adult cousin of RW's; and (3) RB, his adult step-daughter and RW's mother. As explained more fully below, the only charge relating to RW was Count 4 (first-degree unlawful sexual penetration). Counts 1 (first-degree sodomy) and 5 (attempted first-degree sodomy) related to E and RB, respectively. We separately relate the predicate circumstances of those charges below in our consideration of the asserted plain error as to each. For narrative and analytical coherence, we begin with the alleged impermissible vouching for RW's credibility.
1. Count 4: Admissibility of Muggia's " Vouching" Testimony
At the time of the charged conduct, sometime during the summer of 2006, RW was 10 years old. RW and her older [271 Or.App. 3] sister, S, were living with defendant and his wife, their maternal grandmother. According to RW, she awoke one morning to find defendant touching her genital area. That incident was not reported until May 18, 2007, when S disclosed it to a school counselor. That same day, S repeated the allegations to Child Protective Services child abuse investigator Valentina Muggia. Muggia, in turn, interviewed RW, who provided further details about the alleged abuse.
The state charged defendant with first-degree unlawful sexual penetration, ORS 163.411. Both RW and Muggia testified at trial. On direct examination, Muggia recounted RW's statements and demeanor during the May 18, 2007, interview. Then, after referring to Muggia's extensive training and experience interviewing child victims, the prosecutor and Muggia had the following exchange about that interview:
" Q. * * * [W]hat were the significant observations that you made in determining that there--there is a need for help here or intervention?
" A. Well, one is the--the specific amount of details that [RW] was able to disclose during the interviews. And then also her--her demeanor in how much this interview[ ] was affecting it and--and her anger that she had in expressing her feelings. Those were all collectively what led me to believe that indeed she had been molested."
The italicized statement is the basis of defendant's appellate assertion that Muggia impermissibly vouched for RW's credibility. Defense counsel did not object to, or move to strike, that statement. Rather, on cross-examination, defense counsel revisited Muggia's opinions as to RW's believability:
" Q. Okay. And part of your investigation, is it to decide whether what's being disclosed is true or not?
" A. I--I--part of my investigation is to determine whether I have enough evidence to say that child abuse has occurred.
" Q. Okay. And part of that evidence is to determine whether the--whether the child is telling the truth?
[271 Or.App. 4] " A. I suppose so, yeah.
" Q. Okay. Well, you have to, I mean--okay. So you don't care so much about whether they're telling the truth if there's evidence?
" A. I guess it's in my experience if I founded the cases is because the child has been ...