Oregon Appellate Ct. - Mar. 11, 2015
by: Frangieringer and Abassos • March 11, 2015 • no comments
OEC 412 Evidence Dissimilar To Circumstances of Alleged Sexual Assault Is Not Admissible
Proffered 412 evidence involving other sexual acts of the complainant is only admissible if it is similar to the complainant’s behavior during the alleged assault. Here, the Defendant sought to introduce prior incidents in which the complainant got so drunk she was unable to remember having sex the next day. The description of the instant offense was that the complainant refused the Defendant’s requests for sex and that she was fully unconscious when the sex occurred. As such, the prejudicial effect of the proffered evidence outweighed its probative value. State v. Davis, 269 Or App 532 (2015).
Expert Testimony – Not Vouching When Objectively Analyzing Facts Relayed by Complainant
Expert testimony on “grooming” is relevant and not vouching when 1) it goes to helping the jury understand how “familial sex abuse typically presents,” and 2) the expert only describes that, if true, the complainant’s statements fit with typical grooming behavior. Here, a detective was qualified as an expert and testified that the events described by the victim constituted grooming i.e. offenders targeting vulnerable children who lacked protective parents. Because he did not state the Defendant groomed the complainant, but made an objective analysis based on the facts as described by the complainant, the expert did not vouch for the complainant. State v. Swinney, 269 Or App 548 (2015).
Identity Theft – Possession of Stolen Documents Generally Used for ID Theft Sufficient to Infer Guilt
There is sufficient evidence to infer that a defendant intends to use documents to deceive or defraud when a defendant is in possession of personal identification documents from different people that are consistently used to commit identity theft. Here, the Defendant was found in possession of passports, credit cards, Social Security cards, and birth certificates from different people, all of which had been reported stolen. Because these are all items that are generally used in the commission of identity theft, there was sufficient evidence for a jury to infer the Defendant’s intention to deceive or defraud. As such, the trial was not in error in denying the Defendants MJOA. State v. Hodges, 269 Or App 568 (2015).
MJOA – Plain Error Review for Theft by Receiving
A trial court is not in error in denying a MJOA on a theft by receiving charge where there was sufficient evidence for the government to make a “credible argument . . . that any error would not be plain.” Here, where a box containing stolen documents was found in a stolen car, and the box was addressed in another name in a distant city, there was sufficient evidence to survive plain error review. State v. Hodges, 269 Or App 568 (2015).
