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Oregon Appellate Ct - Aug 10, 2016

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by: Sara Werboff • August 10, 2016 • no comments

Vouching - PTSD Diagnosis Admissible in Sex Abuse Case

The court declines to review for plain error vouching comments by the victim's mother because it plausibly could infer that counsel's failure to object was strategic. Counsel cross-examined the mother about other comments she had made concerning her daughter's untruthfulness. Additionally, the vouching comments were not directly related to the abuse allegations, and statements from a victim's mother were not as likely to persuade the jury as similar comments from an expert witness.

The court also concludes that the victim's PTSD diagnosis was relevant, even though the diagnosis occurred before the victim disclosed the abuse to her psychologist, because the diagnosis tended to show that it was more likely than not that the victim suffered from a traumatic event. But then the court concludes that the diagnosis is not equivalent to a sexual abuse diagnosis, inadmissible under 403 and Southard, because "while a PTSD diagnosis presupposes a traumatic event in the victim's history, it is not dependent on a particular traumatic event." Therefore the PTSD diagnosis was not a determination that sexual abuse had occurred.

State v. Hanson, 280 Or App 186 (2016) (Sercombe, P.J.)


Post-Conviction Relief - Failure to Request Curative Instruction for Sheriff's Vouching Comments Not Prejudicial - Prosecutor Did Not Vouch During Closing

The court concludes that petitioner did not establish inadequate and ineffective assistance of counsel because he was not prejudiced by his counsel's failure to move to strike and request a curative instruction after a sheriff made comments vouching for the victim's credibility in a sex abuse case. The victim had claimed that petitioner sexually abused her on a log in the woods. When brought to the woods by police, the victim pointed out a stump. When questioned at trial about that discrepancy, the sheriff testified that "there was no doubt in [his] mind about her credibility or honesty." Trial counsel objected and the objection was sustained. The court first notes that counsel may have had a strategic basis for not calling additional attention to the comment by requesting a curative instruction or moving to strike. The court then concludes that no prejudice occurred because the vouching comment was immaterial to the jury's guilty finding as defendant was acquitted of the "log in the woods" charge.

The court also holds that the prosecutor's repeated statements during closing concerning the victim's honesty were not vouching because the prosecutor was simply arguing that the jury could infer the victim's credibility from the record, which is permissible argument. The prosecutor was not making "factual assertions purportedly based on counsel's own knowledge of the facts not introduced into evidence." Thus, counsel was not ineffective for failing to object to those statements.

Heroff v. Coursey, 280 Or App 177 (2016) (Sercombe, P.J.)


Probation Revocation - Trial Court Constrained By Terms of Judgment in Imposing Sentence on Revocation

The terms of the judgment control the sanction that is available upon revocation of probation. Even though defendant was originally eligible for RPO sentence, the trial court imposed a downward dispositional departure. The judgment in defendant's underlying case set forth only his gridblock classifications and did not mention RPO eligibility. Therefore, the trial court could only impose that gridblock sentence following revocation of defendant's probation. Additionally, the court also concludes that a RPO sentence is not a "presumptive" sentence prescribed by the sentencing guidelines for the purposes of reviewability under ORS 138.222, and therefore appellate review is not precluded.

State v. Denson, 280 Or App 225 (2016) (DeHoog, J.)


RPO Sentence Imposed After Probation Revocation is Reviewable - Plain Error Review Not Warranted

The court concludes that a RPO sentence imposed following the revocation of defendant's probation is reviewable under ORS 138.222 because it is not a presumptive sentence prescribed by the sentencing guidelines. The court further concludes that defendant's argument that the court can only impose a presumptive guidelines sentence upon revocation (relying on OAR 213-010-0002(2)) is unpreserved and does not warrant plain error review. The error is not "obvious" because there is no appellate case law resolving the legal question of whether a presumptive RPO sentence may lawfully be imposed upon revocation of probation.

State v. Webster, 280 Or App 217 (2016) (DeHoog, J.)