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State v. Roden

Court of Appeals of Oregon

March 20, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
RANDY LEE RODEN, Defendant-Appellant.

          Argued and submitted October 5, 2018.

          Clatsop County Circuit Court 14CR32377; Paula Brownhill, Judge.

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

          Jordan R. Silk, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary: Defendant appeals a judgment of conviction for 11 offenses related to the death of his girlfriend's daughter and injuries to his girlfriend's sons. In his frst assignment of error, he challenges the admission of expert testimony on bite marks, arguing that it failed to meet the Brown/O'Key standards for scientifc evidence. See State v. Brown, 297 Or. 404, 687 P.2d 751 (1987); State v. O'Key, 321 Or. 285, 899 P.2d 663 (1995). In a second assignment of error, defendant asserts that the trial court improperly denied his motion to suppress evidence discovered on his cellular phone during the execution of a search warrant that he claims lacked the particularity that Article I, section 9, of the Oregon Constitution requires.

         Held: The trial court erred in admitting the bite mark testimony, and that error was harmless as to some counts but reversible as to those related to homicide because the evidence countered defendant's theory of the child's death and the erroneous admission of it may have therefore affected the verdict. However, the trial court did not err in denying defendant's motion to [296 Or.App. 605] suppress. The Court of Appeals determined that defendant's critique of the warrant was not presented in terms of the standards articulated in State v. Mansor, 363 Or. 185, 421 P.3d 323 (2018).

         Convictions on Counts 1, 2, 4, 6, and 7 reversed and remanded; otherwise affrmed. [296 Or.App. 606]

          DeVORE, J.

         Defendant appeals a judgment of conviction for 11 offenses related to the death of his girlfriend's daughter and injuries to his girlfriend's sons. In his first of two assignments of error, he challenges the admission of expert testimony on bite marks, arguing that it failed to meet the BrownlO'Key standards for scientific evidence.[1] The state concedes that the admission was erroneous, but argues that the evidence had little likelihood of affecting the jury's verdict as to any counts. We conclude that the error was harmless as to some counts but reversible for those counts related to homicide. In a second assignment of error, defendant asserts that the trial court improperly denied his motion to suppress evidence discovered during a search of his cellular phone. We conclude that the underlying warrant did not lack the particularity that Article I, section 9, of the Oregon Constitution requires.[2]We reverse and remand the judgment as to particular counts for which the admission of bite-mark evidence constituted reversible error. Otherwise, we affirm.

         I. BACKGROUND

         A. Facts

         Defendant and Wing met on Halloween in 2014. One week later, defendant moved into the apartment where Wing resided with her three young children, PK, PW, and EW PK and PW, boys, were ages five and two respectively. EW, a girl, was approaching her third birthday. Defendant began caring for the children regularly when Wing was away at work. In the month and a half that followed, the children sustained numerous injuries. By December 19, EW had become quite lethargic. Then, in the early hours of December 20, EW was found dead in her bed.

         Wing called 9-1-1 and police responded to the scene, followed by the county medical examiner. Defendant, Wing, PK, and PW went to the police station, where a Department [296 Or.App. 607] of Human Services caseworker evaluated the boys and, noticing their injuries, took custody for further evaluation. The boys were taken to the Randall Children's Hospital in Portland. There, it was determined by a pediatrician who specialized in such matters that their injuries were indicative of child abuse. Meanwhile, the state's deputy medical examiner autopsied EW and concluded that she died from battered child syndrome with terminal blunt force head trauma.

         As part of its investigation into the children's injuries and EW's death, the state obtained a warrant to search defendant's cellular phone for all communications with Wing and any communications or stored items related to the children. The warrant specified the following temporal parameters:

"The period of time for the relevant records is between October 1, 2014 and December 20, 2014, however because the data may not be able to be located by date, a search of all information on the cellular device, to locate the listed records is authorized."

         Forensic examiners used a device with specialized hardware and software to extract the information from defendant's cellular phone. As a result of that search, police obtained text messages discussing, among other things, discipline of the children, the children's injuries, attempts to conceal those injuries, and defendant's anger towards the children. The search also found photographs of the children's wounds.

         Defendant was charged with fifteen offenses: four counts of aggravated murder, ORS 163.095; two counts of murder by abuse, ORS 163.115(1)(c)(A) and (B); one count of felony murder, ORS 163.115(1)(b)(J); one count of first-degree unlawful sexual penetration, ORS 163.411; one count of first-degree sexual abuse, ORS 163.427; three counts of first-degree assault, ORS 163.185; and three counts of first-degree criminal mistreatment, ORS 163.205.

         B. Pretrial Motions

         Before trial, defendant moved to exclude expert testimony regarding the children having bite marks, arguing [296 Or.App. 608] that such opinions were scientifically unreliable under OEC 702, inadmissible under OEC 401 and OEC 403, and prohibited by the Eighth Amendment to the United States Constitution. After a hearing on the matter, the trial court denied defendant's motion.[3]

         Defendant also moved to suppress evidence discovered on his cellular phone, partially on the basis that the underlying search warrant was overbroad. The trial court denied that motion, as well.

         C. The State's Case

         Over the course of a four-week jury trial, the prosecution and defense presented their cases. The state created a timeline to paint a picture of defendant's role in the abuse. It showed a family that, while not perfect, was generally healthy in the past. Wing held a job, the oldest child attended school, and, although Wing engaged in inappropriate discipline, the children's documented medical problems were few and minor. Photographs from the preceding summer depicted the children happy and injury-free.

         The state contended that this all changed upon the arrival of defendant, a dishonest, drug-addicted, controlling, and abusive man with a history of aggression towards small children. The state noted that defendant, more so than Wing, cared for, and therefore had the opportunity to abuse, the children during the time leading up to the incident. The state also introduced the cellular phone communications, DNA evidence from clothing and the apartment, drug tests, and testimony from multiple acquaintances as evidence that defendant, not Wing, harmed the children.[4] In addition, the state offered evidence to show the nature of the abuse and the extent of the children's injuries. The evidence included photographs of the children, defendant, and the apartment. [296 Or.App. 609] The state also called a number of medical experts to testify about the children's injuries and their potential causes.

         Two medical examiners testified about EW's post-mortem condition: Nelson, who conducted the autopsy, and Giuliani, who responded to the scene of EW's death. Nelson testified that battered child syndrome with blunt force head trauma was the cause of death. He discovered hemorrhages in EW's scalp and skull and "significant trauma" in her brain, which he described as "a very severe concussion." EW also had small abscesses in her brain and heart.

         Both Nelson and Giuliani noted numerous other injuries to EW's head and body. They said that EW had "cauliform" ears, which commonly occurs among boxers and wrestlers as a result of damaged blood vessels and dead cartilage. She had various contusions, abrasions, and lacerations on her face and head, including lesions on her nose, ear, and scalp, some of which were infected. The tissue between EW's lip and teeth was destroyed, discolored, and infected, damage that both medical examiners believed to be caused by trauma to the mouth. EW's left arm was broken, purple, and swollen, with a spiral fracture to the humerus. Nelson surmised that such a break would occur as the result of someone grabbing and jerking the child by the arm. Various areas of EW's torso, arms, hands, and legs had contusions, abrasions, lacerations, or swelling, as well.

         Nelson considered EW's numerous injuries and signs of malnutrition in arriving at his diagnosis of battered child syndrome. He said that her injuries appeared to be intentionally inflicted. Nelson noted, however, that he could not specifically identify one isolated injury that, alone, caused the death:

"But I can't say that she would have died of the head trauma without everything else that's going on, and-and because she's got so much other stuff going on-you know, the fractured humerus, all the contusions and abrasions all over, stuff in her mouth that looks like it's infected, a few micro-abscesses in various areas of her body, a general state of malnutrition, *** that's why I chose to use the diagnosis of battered child syndrome, which essentially is by definition a child who has been abused over a period of [296 Or.App. 610] time. Those injuries lead to the death, and I can't specifically say that one thing, without all the others, caused her to die."

         The state also called a pediatrics professor as a witness. Based on a review of medical records, the autopsy report, photographs, videos of the crime scene, interviews with people involved, and police reports, she confirmed that EW's injuries were "clearly" caused by "multiple episodes of inflicted trauma or child abuse."

         Four doctors and an ER nurse testified to PW's and PK's injuries. As to PW, they generally agreed that he appeared to have been beaten. His face was bruised, marked, and swollen. Both eyes had hemorrhaging, which generally occurs due to direct trauma, and were nearly swollen shut. His scalp had red bumps and pustules. The witnesses believed PW had healing burns on his nose and ears, which were bruised and encrusted. One ear was infected. His mouth had extensively damaged tissue, which can occur from blunt trauma, and his lips and tongue had lesions. PW's hands had lacerations, abrasions, bruising, blistering, and crusting, with what appeared to be a burn. His fingers were bruised and he had a skin infection. PW ...


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