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 ...