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State v. Krieger

Court of Appeals of Oregon

April 25, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
DOUGLAS GEORGE KRIEGER, Defendant-Appellant.

          Argued and submitted April 26, 2016

          Yamhill County Circuit Court 13CR02576 Ronald W. Stone, Judge.

          Kenneth A. Kreuscher argued the cause and fled the brief for appellant.

          Michael S. Shin, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Before DeVore, Presiding Judge, and Lagesen, Judge, and James, Judge. [*]

         Case Summary: Defendant appeals from a judgment of conviction for two counts of first-degree sexual abuse, ORS 163.427. The charges were based on allegations that defendant sexually abused his wife's two grandsons. Defendant assigns error to the trial court's ruling that excluded the potential testimony of defendant's wife that her daughter-the mother of the two victims-had been sexually abused by another man. The trial court excluded the testimony on grounds that it would have been improper "bolstering" and, alternatively, was unduly prejudicial under OEC 403.

         Held: Defendant did not make an offer of proof sufficient to permit the court to determine whether any error in excluding the testimony was prejudicial.

          [291 Or.App. 451] DEVORE, P. J.

         Defendant appeals from a judgment of conviction for two counts of first-degree sexual abuse, ORS 163.427. The charges were based on allegations that defendant sexually abused his wife's two grandsons. Defendant assigns error to the trial court's ruling that excluded the potential testimony of defendant's wife that her daughter-the mother of the two victims-had been sexually abused by another man. The trial court excluded the testimony of defendant's wife on grounds that her testimony about the sexual abuse of her daughter would have been improper "bolstering" and, alternatively, was unduly prejudicial under OEC 403. We conclude that the judgment must be affirmed because defendant did not make an offer of proof sufficient to permit us to determine whether any error in excluding the testimony was prejudicial.[1]

         We recount only those facts necessary to frame the trial court's ruling. Defendant married his wife, Patricia, when her daughter KF was about eleven or twelve years old.[2] Some years later, in 2001 and 2005, KF had two sons, J and W From the time of their birth, defendant acted as their grandfather. In December 2011, KF and her husband parked their fifth-wheel trailer, in which the family lived, on the property at the home of defendant and Patricia. The boys J and W frequently slept in the front room in the grandparents' home. Sometime after Christmas or in early January 2012, W, then age six, told his mother, KF, that he had a nightmare and had crawled into bed with his grandparents. W said that defendant put his hand inside W's pajamas and rubbed his genitals. When KF asked J, then age 10, if defendant had done anything to J, J recounted that, when he had been sleeping on a couch, someone had taken J's hand and held it to another's pubic hair and privates. J said that, when he opened his eyes, he saw defendant moving away.

         KF immediately told her mother Patricia, who came to hear the boys repeat the disclosures to her. The next day, [291 Or.App. 452] the boys repeated their disclosures to their father. Later that month, both boys gave videotaped statements to a forensic interviewer at Juliette's House. The state charged defendant with two counts of first-degree sexual abuse, ORS 163.427, and three counts of harassment involving a sexual or intimate part, ORS 166.065(4)(a).

         Before trial, the state moved to exclude, among other things, any evidence of sexual abuse of the boys' mother, KF. Defense counsel responded that, having already conferred with defendant, he did not intend "to raise those issues in [defendant's] case." The trial court approved, indicating "So ordered." Just before Patricia testified, the state asked the court to remind her of the several matters subject to the motion in limine, including the sexual abuse of KF. Defense counsel again responded that defendant did not want to ask Patricia about the sexual abuse of KF, but defense counsel said:

"On the majority of that I certainly don't have any objection. The prior sexual abuse of [KF] I don't want to address that. It may come into play, Your Honor, because there was, Patricia, wife, was in a relationship where the father of the children committed sex abuse against the kids. And so that could create a situation where she would be hyper vigilant.
"And I think, I am not saying the Court should let [Patricia] talk about the sexual abuse of [KF], but that could go to her, kind of her ability to essentially would be to protect. But, Your Honor, I guess if the question is proposed to her did you ever see signs of sexual abuse, and the answer is no, and then the follow-up question was would you pay special attention to that and her answer was yes, it seems to me that would come in, and then she would be able to explain why she would pay super close ...

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