and submitted March 23, 2018.
Josephine County Circuit Court 15CR46131. Pat Wolke, Judge.
D. Robinson, Deputy Public Defender, argued the cause for
appellant. With him on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Mayfield, Assistant Attorney General, argued the cause for
respondent. On the brief were Ellen F. Rosenblum, Attorney
General, Benjamin Gutman, Solicitor General, and Michael A.
Casper, Assistant Attorney General.
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
Summary: Defendant appeals a judgment of conviction for eight
counts of second-degree sexual abuse, one count of
third-degree sexual abuse, four counts of third-degree rape,
and one count of third-degree sodomy. On appeal, defendant
raises fve assignments of error. In his first assignment,
defendant argues that the trial court plainly erred by
failing to strike, sua sponte, "a police detective's
expression of gratitude for the alleged victim's
'honesty.' " In his second through fifth
assignments, defendant contends that the trial court plainly
erred by failing to merge a number of the jury's guilty
verdicts for second-degree sex abuse and third-degree rape.
Held: The trial court did not plainly err by failing
to strike, sua sponte, the police detective's expression
of gratitude for the victim's honesty because it was not
"obvious" that the detective's out-of-court
statement was offered only for the truth of the credibility
opinion that it expressed. The trial court plainly erred when
it entered separate convictions for each of the second-degree
sexual abuse counts and each of the third-degree rape counts
that were [291 Or.App. 574] based on the same conduct, and
the Court of Appeals exercised its discretion to correct the
and remanded for merger consistent with this opinion;
remanded for resentencing; otherwise affirmed.
Or.App. 575] TOOKEY, J.
appeals a judgment of conviction for eight counts of
second-degree sexual abuse (Counts 1, 2, 4, 6, 9, 11, 13, and
14), one count of third-degree sexual abuse (Count 3), four
counts of third-degree rape (Counts 5, 8, 10, and 12), and
one count of third-degree sodomy (Count 7). On appeal,
defendant raises five assignments of error. In his first
assignment, defendant argues that the trial court plainly
erred by failing to strike, sua sponte, "a
police detective's expression of gratitude for the
alleged victim's 'honesty'" In his second
through fifth assignments, defendant contends that the trial
court plainly erred by failing to merge a number of the
jury's guilty verdicts. For the reasons that follow, we
reject defendant's first assignment. We conclude,
however, that defendant's merger arguments are well
taken. We therefore reverse and remand for merger of the
affected convictions, and remand the entire case for
facts are few and undisputed. Defendant, who was then 26
years old, met the victim, who was 14 years old. Over the
course of several months, defendant engaged in a sexual
relationship with the victim. Eventually, the victim's
parents became aware of defendant's sexual relationship
with their daughter, and they confronted defendant. After
defendant acknowledged that he had been engaged in an
inappropriate sexual relationship with the victim, the
victim's parents contacted the police. At first, the
victim refused to talk with the police or to cooperate in any
way because she did not want defendant to get arrested, but
approximately a year later she disclosed the details to
victim was under a lot of "stress" and "very
emotional" when Harris interviewed the victim at the
Children's Advocacy Center. Approximately 70 minutes into
that interview, the victim became "really upset"
when Harris asked why it took the victim over a year to
report the abuse, and the following colloquy ensued:
" [Victim]: I'm dealing with things I wish I
didn't have to deal with.
"[Victim]: I tried to ignore it a lot.
[291 Or.App. 576] "[Victim]: But I've been thinking
a lot lately and I'm looking at my friends and how
they're being ...