Argued and submitted November 25, 2014
Marion County Circuit Court 12C42386, 12C40423; A153242 (Control), A153243
Lindsay R. Partridge, Judge. (Judgments entered November 30, 2012; Amended Judgment entered February 6, 2013)
Tracy A. Prall, Judge. (Amended Judgment entered January 3, 2014) .
David O. Ferry, Senior Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Offce of Public Defense Services.
Andrew M. Lavin, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Lagesen, Presiding Judge, and Flynn, Judge, and De Muniz, Senior Judge.
Case Summary: Defendant appeals a judgment of conviction for one count of sexual abuse in the second degree and one count of assault in the fourth degree. He assigns error to, among other things, the trial court's exclusion of evidence of the victim's juvenile delinquency history and custody status. Held: Defendant was entitled to make a threshold showing of the victim's bias or interest through evidence of her criminal conduct and custody status. The trial court erred when it prevented defendant from making that showing, and the error was not harmless.
LAGESEN, P. J.
On trial for charges of statutory rape and assault, defendant sought to cross-examine the complaining witness pursuant to OEC 609-1 regarding her juvenile adjudication history, in particular, about the fact that she was incarcerated in a juvenile detention facility both at the time of trial and at the time she originally incriminated defendant. The trial court denied that request, ruling that defendant was not entitled to cross-examine the complaining witness regarding any aspect of her juvenile delinquency history. On appeal, defendant assigns error to that ruling, arguing that, under Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), he was entitled, under the Sixth and Fourteenth Amendments to the United States Constitution, to cross-examine the complaining witness as to why she "might have been biased or otherwise lacked th[e] degree of impartiality expected of a witness at trial" and that the complaining witness's custody status in connection with her juvenile adjudications provided one reason that her testimony might not be trustworthy. (Emphasis omitted.) We agree with defendant. Under Davis-and OEC 609-1- defendant was entitled to explore on cross-examination of the complaining witness the extent to which her testimony, and her initial statements incriminating defendant, may have been influenced by the fact that she was incarcerated in a juvenile detention facility under the control of the state. The trial court erred in ruling that defendant could not do so and, as explained further below, that error was not harmless.
Although this consolidated appeal involves judgments against defendant in two separate criminal cases, all of the parties' arguments on appeal pertain to only one of those cases-viz., Case No. 12C42386. In that case, defendant was charged with three counts of sexual abuse in the second degree, in violation of ORS 163.425; one count of assault in the fourth degree constituting domestic violence, in violation of ORS 163.160; and one count of strangulation, in violation of ORS 163.187. The charges arose out of defendant's relationship with 16-year-old K. Defendant, who was 25 years old, met K at her friend's house. They began a relationship, and K moved in with defendant at defendant's mother's house, where she lived for several months. During that time period, K was on runaway status; she also was on probation for a juvenile adjudication and had a warrant out for her arrest on a probation violation. While K lived with defendant, the two frequently had sex. The relationship ended after the two had a physical altercation. Defendant was outside drinking a beer, and K knocked it out of his hand. Defendant responded by physically assaulting K and then telling her to leave the house.
K went to her grandmother's house where others noticed her injuries. K's family notified police about K's return, and Salem Police Officer Asay retrieved K from her grandmother's house and took her to the Marion County Juvenile Department. Asay questioned K about her injuries, but she refused to show them to him, and she did not disclose that defendant had assaulted her. Upon leaving K in the care of the Juvenile Department, Asay asked staff members there to encourage K to report the assault and allow them to photograph her injuries. He requested that they call him if she provided additional information.
K's father and grandfather visited her at the Juvenile Department. Following that conversation, K disclosed to a Juvenile Department staff member that defendant had assaulted her. The staff member then contacted the Department of Human Services with that information, and Asay was informed that K was willing to make a report about defendant's conduct. K told Asay that she had had a sexual relationship with defendant, who was 25 years old, and that defendant had assaulted her ...