Argued and Submitted July 18, 2013.
C101293CR. Washington County Circuit Court. Rick Knapp, Judge.
Brian P. Conry argued the cause and filed the briefs for appellant.
Susan G. Howe, Senior 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 Nakamoto, Presiding Judge, and Haselton, Chief Judge, and Egan, Judge.[*]
[271 Or.App. 249] HASELTON, C. J.
Defendant appeals, challenging his convictions for one count of first-degree sodomy, ORS 163.405, and two counts of first-degree sexual abuse, ORS 163.427, following a second jury trial. Most significantly--and dispositively--for our review, defendant contends in his first assignment of error that the trial court erred in admitting, as prior consistent testimony, OEC 801(4)(a)(B), evidence of the complainant's testimony before the grand jury, as well as excerpts of the complainant's testimony during the first trial (which ended in a mistrial). We conclude that the trial court so erred and that that error was not harmless. Accordingly, we reverse and remand.
The circumstances pertinent to our review are as follows. Defendant was indicted in 2010 for sexual offenses against the complainant, his stepdaughter, A. The alleged conduct occurred between 1996 and 1999, when A was between the ages of five and eight and was living with her mother, defendant, and A's four siblings. A first reported the alleged abuse in a conversation with her boyfriend in late 2008. Not long thereafter, she also told her mother about the alleged abuse. By the time of A's disclosures, defendant and A's mother were no longer married.
Defendant was initially indicted on two counts of first-degree rape, two counts of first-degree sodomy, two counts of first-degree unlawful sexual penetration, and four counts of first-degree sexual abuse. Immediately before the first trial, the state dismissed five of the charges, viz., one count of first-degree rape, one count of first-degree sodomy, one count of first-degree unlawful sexual penetration, and two counts of first-degree sexual abuse (Counts 1, 3, 5, 7, and 9, respectively). After the state presented its case-in-chief, the trial court granted defendant's motion for judgment of acquittal (MJOA) on the remaining count of first-degree rape (Count 2). The jury was unable to reach a verdict on the remaining charges of sodomy, unlawful sexual penetration, and two counts of sexual abuse (Counts 4, 6, 8, and 10), and the trial court granted a mistrial.
The state proceeded to a second trial on the four remaining counts, and at that second trial, as at the first, [271 Or.App. 250] the state presented evidence that, at the time of the alleged abuse, A's mother worked weekday mornings and, for at least part of that time, defendant stayed at home caring for the children. With two significant exceptions described below, A's testimony at the second trial was generally consistent with her testimony during the first trial. Specifically, A recalled that the family was living in a mobile home and that the abuse occurred " many times" ; nevertheless, she could recall the specifics of, at most, four encounters. She recalled that, in one instance, defendant took her to his and her mother's bedroom alone, undressed her, and forced her to lie on her stomach. He then lay on top of her. She testified that she felt pain in the area of her vagina and anus. She testified that, in another instance, defendant
forced her to hold his penis and moved her hands up and down, and, in a separate instance, defendant forced her to lick his penis, telling her to " lick it like a lollipop."
Again, generally consistently with her testimony at the first trial, A further recalled that, during another instance of abuse when she was lying on her stomach and defendant was on top of her, her siblings knocked on the door to come in. A testified that, when her siblings could not open the door, she remembered seeing little fingers pushed under the door. This memory was corroborated at trial by the testimony of two of her siblings, who testified that they remembered defendant taking A into the bedroom alone, remembered trying to go into the bedroom themselves and finding the door locked, and remembered some of A's brothers sticking their fingers under the locked door. A's mother also testified that the doorknob to the bedroom had a locking mechanism.
As noted above, A's testimony during the second trial varied substantially from her testimony at the first trial in two respects: (1) Whereas, at the first trial, A testified that defendant had touched her vagina, at the second trial, [271 Or.App. 251] she did not recall and recount that contact. (2) Similarly, at the first trial, A testified that she had felt defendant's penis " inside of" her, but, at the second trial, she could no longer remember that circumstance.
At the second trial, as at the first, defendant's predominant theory of defense was that A had a motive to lie about the alleged abuse. The defense posited, and presented evidence of, two overarching motives. First, defendant contended that A was motivated by dysfunctional family dynamics--that A had first told her mother about the alleged abuse during an argument between the two of them in early 2009, and that, as the consequences of that accusation snowballed, A became too deeply committed to recant. Second, defendant contended, A had fabricated, and persisted in, her accusations so as to obtain favorable immigration consequences. It was undisputed that A was born in Mexico and had moved to the United States when she was a baby, but had no legal documentation allowing her to stay in this country. Defendant also adduced evidence pertaining to A's putative eligibility for a " U visa" predicated on status as a victim of domestic or sexual abuse and elicited an admission from A, on cross-examination, that she had first become aware of her potential eligibility within about a week of her initial report to her mother. Defendant contended that, from that point on, A had persisted in false accusations so as to be eligible for a U visa.
In the course of the second trial, to counter the defense attacks on A's credibility, the state moved for the [271 Or.App. 252] admission of certain evidence pursuant to OEC 801(4)(a)(B). That rule provides:
" A statement is not hearsay if:
" (a) The declarant testifies at the trial or hearing and is subject to cross-examination concerning the ...