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State v. Cone

Court of Appeals of Oregon

December 20, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
RICHARD RAY CONE, Defendant-Appellant.

          Submitted November 15, 2016

         Jefferson County Circuit Court 13CR09206; Annette C. Hillman, Judge.

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

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jonathan N. Schildt, Assistant Attorney General, fled the brief for respondent.

          Before DeVore, Presiding Judge, and Garrett, Judge, and Duncan, Judge pro tempore.

         Case Summary:

         Defendant appeals a judgment of conviction for one count of sexual abuse in the first degree, ORS 163.427, arguing that the trial court plainly erred in not striking a witness's testimony that she "totally believed" the victim's disclosure of sexual abuse. The state acknowledges that the testimony constituted impermissible "vouching, " but argues that the trial court did not commit plain error because the record supported a plausible inference that defendant strategically chose not to object. Held: Because the record supports a plausible inference that defendant made a conscious choice not to object to the witness's comment, the trial court did not plainly err in declining to sua sponte strike that t es timony.

         Affrmed.

         [289 Or.App. 392] GARRETT, J.

         Defendant appeals a judgment of conviction for one count of sexual abuse in the first degree, ORS 163.427. On appeal, defendant raises two assignments of error. We reject without discussion the second assignment, which challenges the proportionality of defendant's sentence under State v. Rodriguez I Buck, 347 Or. 46, 217 P.3d 659 (2009). We write to address the first assignment, in which defendant argues that the trial court plainly erred in failing to sua sponte strike the testimony of a witness who said that she "totally believed" the victim's disclosure of abuse. For the reasons explained below, we conclude that the trial court did not plainly err, and we therefore affirm.

         Defendant was charged by indictment with one count of first-degree sexual abuse based on his alleged contact with a 13-year-old girl, B. Defendant waived his right to a jury trial. At the bench trial, the state presented evidence consisting of B's own testimony as well as the testimony of witnesses who described what B had told them about defendant's actions.

         The evidence established that defendant moved in with B, her mother, and her older brother when B was seven or eight years old. B testified that in November or December 2012, when she was 13, defendant touched her vaginal area over her clothes. B testified that she shared that information with her friend, D, within several days of the incident. Several months later, in March or April 2013, B and D together told D's mother, Strawn, about the incident. Strawn testified that she did not immediately share B's disclosure with authorities because B had asked her not to, explaining that she feared the consequences if defendant got in trouble because he was the sole provider for the family. In the course of the state's direct examination of Strawn, the prosecutor asked Strawn to describe her reaction to B's disclosure, and Strawn testified, "That it wasn't right. I was a little bit, you know, a little shocked at it, because [defendant's] always been, you know, so, like a father figure to her. But, I mean, I totally, I believed her."

         There was also evidence that after making her disclosures to D and Strawn, B told her mother about the [289 Or.App. 393] incident. According to the mother's testimony, B told her that defendant had touched her by the "buttocks" and "crotch, " and that B responded by kicking him and leaving the room. B's mother told B to let her know if it happened again, but she did not confront defendant or otherwise disclose the incident.

         The incident came to the attention of police in July 2013 when the Department of Human Services (DHS) informed Detective Webb that a parent had overheard a conversation between the parent's child and the child's friend, in which the friend said that B said defendant had touched her. The parent interpreted the account as a description of child sexual abuse and made a report to DHS. Webb testified that he interviewed B, who made statements incriminating defendant. B was later interviewed at a child abuse assessment center by a forensic interviewer, Hasbrouck, who also testified at trial. Hasbrouck testified that B described defendant's touching her "crotch" and "butt, " and that B also said she had reported the incident to D, Strawn, and her own mother shortly after it occurred.

         Defendant's theory at trial was that the abuse never occurred and that B had fabricated the allegations. In support of that theory, defendant's closing argument emphasized what he called "astounding" discrepancies between B's accounts of the incident in her various disclosures. Importantly for purposes of this appeal, defendant also attempted to establish that neither Strawn nor B's mother believed B's disclosures. In cross-examination of both witnesses, defendant highlighted their failures to report the incident to authorities, suggesting that those failures ...


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