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State v. Mayo

Court of Appeals of Oregon

July 11, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
ROBERT EARL MAYO, Defendant-Appellant.

          Argued and submitted July 27, 2017

          Washington County Circuit Court C142325CR; Thomas W. Kohl, Judge.

          Neil F. Byl, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Jamie K. Contreras, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Ortega, Presiding Judge, and Hadlock, Judge, and Schuman, Senior Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for first-degree sodomy, first-degree rape, first-degree sexual penetration, and three counts of first-degree sexual abuse for sexually abusing his ex-girlfriend's daughter. The trial court allowed defendant to introduce evidence of the victim's past sexual behavior with a boy about her age for the purpose of proving her motive in identifying defendant as the abuser, OEC 412(2)(b)(A), (C). However, on appeal, defendant asserts that that evidence should have been introduced for the OEC 412(2) (b)(B) purpose of rebutting or explaining scientific or medical evidence offered by the state. Held: The trial court did not err in ruling that the evidence could not be offered to rebut or explain the medical evidence because the victim's past sexual behavior did not support a reasonable inference that the boy caused her injuries.

         Affirmed.

         [292 Or.App. 752] ORTEGA, P. J.

         Defendant appeals a judgment of conviction for first-degree sodomy, first-degree rape, first-degree sexual penetration, and three counts of first-degree sexual abuse for sexually abusing his ex-girlfriend's daughter. The trial court allowed defendant to introduce evidence of the victim's past sexual behavior with a boy about her age for the purpose of proving her motive in identifying defendant as the abuser, OEC 412(2)(b)(A), (C), but defendant asserts that that evidence should have been introduced for the OEC 412(2)(b)(B) purpose of rebutting or explaining scientific or medical evidence offered by the state.[1] We conclude that the trial court did not err in ruling that the evidence could not be offered to rebut or explain the medical evidence, because the victim's past sexual behavior did not support a reasonable inference that the boy caused her injuries. Additionally, we reject without discussion defendant's assertion that the court plainly erred in failing to intervene sua sponte during what he contends was an improper closing argument made by the state. Accordingly, we affirm.

         Whether evidence can be admitted under OEC 412 "is a question of law that we review for errors of law." State v. Nelson, 246 Or.App. 91, 98, 265 P.3d 8 (2011). The relevant facts here are mainly procedural.

         The victim was about 7 years old when defendant's conduct began, and it continued until she was 11. One day, [292 Or.App. 753] when she was about 12, her mother found her with her pants down in her room with a boy about her age. The victim's mother took her to a therapist, and the victim disclosed that she had been sexually abused by defendant. The victim's mother then took her to Child Abuse Response and Evaluation Services (CARES), where an examination revealed a "well-healed scar on the hymen." Because the victim had "no other history of genital trauma other than the sexual abuse" allegation, the state sought to introduce evidence discovered during the CARES examination as proof that defendant had sexually abused the victim.

         Before trial, defendant filed a notice of intent to introduce evidence that the victim's mother had found her with a boy and with her pants down to rebut or explain the evidence of the CARES examination. Defendant argued that, during her CARES interview, the victim had indicated that doctor visits during the period of alleged abuse had not revealed any hymen injury, and he urged that the fact that the victim was caught with another male supported an inference that the "penetrating injury [that] occurred * * * [was] not from [defendant], but from sexual behavior with this boy." More narrowly, defendant asserted that the court could find by a preponderance of the evidence a strong inference that "it's very likely there ha[ve] been other encounters between her and this boy when, perhaps, they had more privacy," which would allow defendant to introduce the evidence under OEC 4l2(2)(b)(B).

         The state countered that, in order for that specific evidence to come in for the purpose of explaining or rebutting scientific or medical evidence, defendant had to prove, by a preponderance of the evidence, that there had been penetration by the boy. In the state's view, that required more evidence than that the victim's pants were down. That is, the state ...


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