Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Covington

Court of Appeals of Oregon

May 2, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
WESLEY KIRT COVINGTON, Defendant-Appellant.

          Argued and submitted October 29, 2015

          Clackamas County Circuit Court CR1200564; Thomas J. Rastetter, Judge.

          Lindsey K. Detweiler, Deputy Public Defender, argued the cause for appellant.

          With her on the opening brief was Peter Gartlan, Chief Defender, Offce of Public Defense Services. With her on the reply brief was Ernest G. Lannett, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services. Wesley K. Covington fled the supplemental brief pro se.

          Shannon T. Reel, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

          Before Armstrong, Presiding Judge, and Egan, Chief Judge, and DeVore, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for six counts of first-degree sexual abuse, contending that the trial court erred by refusing to conduct an in camera review of grand juror notes for evidence of inconsistencies between the grand jury and trial testimony of the alleged victims and their mother. Held: Defendant made a showing that was sufficient to require the trial court to conduct an in camera review of the grand juror notes, because the record indicated that the notes plausibly would disclose the existence of material impeachment evidence regarding one of the witnesses, and there were no countervailing considerations that could support a decision not to review the notes.

         Vacated and remanded.

         [291 Or.App. 515] ARMSTRONG, P. J.

         Defendant appeals a judgment of conviction for six counts of first-degree sexual abuse, ORS 163.427, for abusing his three step-daughters. Defendant raises ten assignments of error and three additional supplemental pro se assignments. Of the thirteen assignments, we reject all but one without extended written discussion.[1] We address defendant's second assignment of error, in which he assigns error to the trial court's refusal to conduct an in camera review of grand juror notes for evidence of inconsistencies between the grand jury and trial testimony of the step-daughters and their mother. The state responds that defendant failed to make a sufficient showing to establish that the evidence would have been material and favorable to his case. We conclude that defendant made a showing that was sufficient to require the trial court to conduct an in camera review of the grand juror notes, because the record indicated that the notes plausibly would disclose the existence of material impeachment evidence regarding one of the witnesses, and there were no countervailing considerations that could support a decision not to review the notes. Thus, we vacate and remand for the trial court to review in camera the grand juror notes for one witness.

         Defendant was convicted of sexually abusing his three minor step-children in various ways over a period of years. The abuse allegedly occurred when the children were between six and twelve years of age. The alleged victims' accounts of the abuse differed slightly from one victim to the [291 Or.App. 516] next. Although defendant sought disclosure of grand juror notes of the testimony of all of the victims, he identified only one instance of a possible inconsistency between the trial and grand jury testimony of one of the victims, L, which concerned Count 1 of the indictment.

         Defendant was charged in Count 1 with rubbing his penis on L's vagina. However, L testified at trial that defendant had not done that. Rather, she testified that defendant had forced her to grab his erect penis, which is conduct for which defendant was not charged. In contrast, a police officer testified at trial that L had admitted to him that defendant had rubbed his penis against her vagina. In cross-examination of L and in closing argument, defendant highlighted inconsistencies in L's trial testimony as well as inconsistencies in L's report to a social worker and to an employee of Child Abuse Response and Evaluation Services (CARES), in addition to instances in which L had recanted her accusations against defendant. L sought to address all of that by explaining that she had testified truthfully at trial because she was testifying under oath. The jury convicted defendant of all counts, including Count 1, viz., the count in which L had testified at trial that defendant had not engaged in the charged conduct.

         Because the indictment indicates that L had testified before the grand jury, defendant argued to the trial court that L presumably had testified consistently with the allegations in the charged count, that is, by telling the grand jury that defendant had rubbed his penis on her vagina. Defendant also identified minor inconsistencies in the testimony of other witnesses. Thus, according to defendant, he was entitled to have the trial court conduct an in camera review of the grand juror notes to look for evidence of inconsistent ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.