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State v. Flores

Court of Appeals of Oregon

April 12, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
JOSE VAZQUEZ FLORES, aka Jose Vasquez-Flores, aka Jose Vasquezfores, aka Jose Vasquez Flores, Defendant-Appellant.

          Submitted August 23, 2016

         Lane County Circuit Court 201411281; Mustafa T. Kasubhai, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Meredith Allen, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Shannon T. Reel, Assistant Attorney General, fled the brief for respondent.

          Before Sercombe, Presiding Judge, and DeHoog, Judge, and Flynn, Judge pro tempore.

         Case Summary: Defendant challenges his convictions for two counts of first-degree sexual penetration, two counts of first-degree sodomy, two counts of first-degree rape, and two counts of first-degree sexual abuse. In his sole assignment of error, he contends that the trial court erred in admitting, pursuant to the common-law curative admissibility doctrine, conclusions from a crime lab report regarding DNA analysis of the victim's clothing. The state argues that the conclusions from the crime lab report were admissible, but, in any event, any error in admitting those conclusions was harmless. Held: If the trial court did err in admitting conclusions from the crime lab report concerning DNA analysis of the victim's clothing, that error was harmless.

         Affirmed.

          DEHOOG, J.

         In this criminal case, defendant challenges his convictions for two counts of first-degree unlawful sexual penetration, ORS 163.411, two counts of first-degree sodomy, ORS 163.405, two counts of first-degree rape, ORS 163.375, and two counts of first-degree sexual abuse, ORS 163.427. In his sole assignment of error, defendant contends that the trial court erred in admitting, pursuant to the common-law curative admissibility doctrine, conclusions from a crime lab report regarding DNA analysis of the victim's clothing. The state argues that the conclusions from the crime lab report were admissible, but, in any event, any error in admitting those conclusions was harmless. For the reasons discussed below, we conclude that, if the trial court did err in admitting that evidence, that error was harmless. Accordingly, we affirm.

         In determining whether the erroneous admission of disputed evidence was harmless, we review all pertinent portions of the record. State v. Basua, 280 Or.App. 339, 340, 380 P.3d 1196 (2016). We state the following facts consistently with that standard.

         Defendant's criminal charges arose from sexual conduct involving his niece, E, alleged to have occurred between May 29, 2011 and September 16, 2013. E was between six and eight years old at the time. Defendant and his wife, E's aunt, often babysat E, and defendant frequently assisted E with her homework. E also periodically stayed overnight at defendant's home and, on those occasions, would sleep with her aunt and defendant either on the floor of their bedroom or in their bed. Suspicions of defendant's sexual offenses arose on September 16, 2013, when defendant was helping E with her homework at his home. E's other aunt, Flore, was also present, but went outside to take a phone call. When she came back inside, Flore noticed that defendant's and E's shadows on the dining room wall made it appear as though defendant was in a kneeling position in front of E. When Flore entered that room, defendant and E quickly separated and went to opposite sides of the table where they had been working. Defendant and E appeared nervous to Flore. Flore's observations made her uncomfortable, and she immediately took E home. On the drive to E's home, Flore asked her what she had been doing with defendant; E ultimately disclosed to Flore that defendant had sexually abused her on that and other occasions. After Flore dropped E off at her home, her mother followed up with additional questioning at Flore's urging. E's mother subsequently called the police. When officers arrived, they collected the clothing that E had been wearing at defendant's home.

         The state's theory at trial was that defendant had committed a series of sexual offenses against the victim during a three-year period beginning when she was approximately six years old. Unlike some of defendant's other sexual offenses against E, the state believed that both defendant and E had remained fully clothed during the sexual abuse that Flore had walked in on. As to the clothing that E had worn that day, a state's witness, Detective Williams, testified without objection that a state police crime lab report indicated that no bodily fluids-such as semen or saliva- had been recovered from those clothes. In light of that testimony, the state did not anticipate offering DNA evidence related to such fluids or, for that matter, any DNA evidence. On cross-examination of Williams, however, the following colloquy occurred:

"[DEFENDANT]: *** [S]o you didn't find any DNA evidence that links [defendant] ...

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