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State v. Eladem

Court of Appeals of Oregon

February 14, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
HILMI HAMMAD ELADEM, Defendant-Appellant.

          Argued and submitted June 21, 2016.

         Washington County Circuit Court C132905CR; A157730 James Lee Fun Jr., Judge.

          Mary M. Reese, Deputy Public Defender, argued the cause for appellant. With her on the opening brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services. Hilmi Hammad Eladem fled the supplemental brief pro se.

          Susan G. Howe, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

         Case Summary: Defendant challenges his conviction for first-degree rape, arguing that the trial court should have dismissed that charge as time barred under ORS 131.125(2) (2013). Under that statute, when the victim is under 18 years of age, a prosecution for first-degree rape may be commenced any time before the victim turns 30 years of age or within 12 years after the offense is reported to a law enforcement agency or the Department of Human Services (DHS), whichever occurs first. When the victim was eight years old, she told a playmate that defendant "rapes" her. Her playmate informed her foster mother, who informed DHS and the local police about the victim's statement. The victim denied any impropriety by defendant when DHS and local police investigated. More than 12 years later, the victim disclosed that defendant had sexually abused her for a period of years. A jury convicted him of numerous sexual offenses, including one count of first-degree rape. On appeal, defendant asserts that the victim's statement was a "report" that triggered the statute of limitations. Held:

         [290 Or. 213] The trial court did not err. A third-hand report of the use of the word "rapes" by an eight-year-old victim, without any additional explanation or specific factual disclosures, was too vague and ambiguous to trigger the statute of limitations because such a comment did not actually communicate the facts that form the basis for the particular offense reported.

         [290 Or. 214]

          ORTEGA, P. J.

         Defendant appeals a judgment of conviction for five counts of first-degree sexual abuse, ORS 163.427; seven counts of first-degree sodomy, ORS 163.405; one count of first-degree unlawful sexual penetration, ORS 163.411; and one count of first degree rape, ORS 163.375. In his first assignment of error, he challenges his conviction for first-degree rape, arguing that the trial court erred by not dismissing that count as time-barred. In his second and third assignments of error, he challenges his convictions on three counts of first-degree sexual abuse, asserting that the trial court plainly erred by not sua sponte acquitting him of those counts and by instead entering convictions on them. We reject defendant's second and third assignments without written discussion, and write to address the statute of limitations issue presented in his first assignment.[1]Ultimately, we conclude that information that was transmitted to the Department of Human Services (DHS) and a local police department 13 years before defendant was indicted was insufficient to trigger the statute of limitations for first-degree rape. Accordingly, we affirm.

         Defendant's first assignment of error raises the issue of whether the statute of limitations in ORS 131.125(2) (2013), amended by Or Laws 2015, ch 417, § 1; Or Laws 2016, ch 120, § l[2] was triggered when the eight-year-old victim told a playmate, C, in 2000 that defendant "rapes" her or "was raping" her, and C's foster mother reported that information to DHS and local police. ORS 131.125(2)(a) provides that a prosecution for first-degree rape

"may be commenced within six years after the commission of the crime or, if the victim at the time of the crime was [290 Or. 215] under 18 years of age, anytime before the victim attains 30 years of age or within 12 years after the offense is reported to a law enforcement agency or the Department of Human Services, whichever occurs first[.]"

         Defendant claims that, for the purposes of ORS 131.125(2), the events that occurred in 2000 constitute a "report" of first-degree rape to DHS and the local police, which triggered the running of the statute of limitations. He further argues that, because the report occurred more than 12 years before he was indicted for first-degree rape, the trial court erred by not dismissing that count as time barred.

         For purposes of defendant's motion to dismiss the first-degree rape count, the parties stipulated to the following facts. Defendant began dating the victim's mother in 1996, and at times he lived in the victim's home. In October 2000, the foster mother of C called DHS to report that the victim had told C that defendant "rapes her." C had explained to her foster mother that defendant had invited C and the victim into the victim's house to play, but the victim told her that she did not want to go into the house without her older brother because defendant "rapes her." Neither C nor her foster mother asked the victim what she meant by that statement. After receiving the call, DHS contacted the local police department. The next day, a DHS caseworker and a police officer contacted the victim, who was then eight years old, at her school. When asked about defendant, the victim said that defendant "has never done anything to her that she did not like" and denied telling anyone that he had touched her in an inappropriate way. When the DHS caseworker told the victim that someone had contacted DHS and stated that they had heard her say that she was being inappropriately touched by defendant, the victim responded that she had never said anything like that to anyone and did not know why someone would ...


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