Oregon Appellate Ct. - Mar. 11, 2015
by: Frangieringer and Abassos • March 11, 2015 • no comments
OEC 412 Evidence of Past Sexual Behavior Is Only Admissible if Circumstances Are Similar
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 drunk, hit on guys, had sex and was unable to remember anything the next day. At trial, the testimony was that the complainant refused the Defendant’s requests for sex and that, later, she was unconscious and unresponsive when the defendant sexually penetrated her. Unlike with the 412 evidence offered, there was no evidence in this case that the complainant was drunkenly sexual toward client or that she was drunk but consenting to sex. As such, this is exactly the sort of prejudicial 412 evidence that has little weight but involves the degrading disclosure of intimate details about the victim's private life. State v. Davis, 269 Or App 532 (2015).
Vouching - An Expert's Testimony That Complainant's Statements, If True, Indicate Grooming is Not Vouching
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 Identification Documents From Multiple People is Sufficient to Infer Intent to Deceive or Defraud
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 intent to deceive or defraud. As such, the trial court appropriately denied the Defendants MJOA. State v. Hodges, 269 Or App 568 (2015).
