Oregon Appellate Court July 18, 2012
by: Sduclos • July 18, 2012 • no comments
Vouching > Expert Cannot "Explain" Why Complainant Delayed Reporting
Expert testimony offered to explain a particular child's denial of alleged abuse cannot include testimony regarding "grooming" techniques used by child abusers. Here, a nurse practitioner testified, in the absence of supporting physical evidence, that the complainant delayed reporting her rape because she was afraid of the defendant and had been groomed. Although the practitioner did not "diagnose" the victim as having been sexually abused, the evidence was unfairly prejudicial vouching for the victim's story. State v. McCarthy.
Rape I and Sex Abuse I > Forcible Compulsion Need Not Rise to the Level of Violence
In determining whether the state met its burden as to forcible compulsion, the trier of fact can consider difference in age, size, and strength between victim and defendant as well as the relationship between them. Here, the defendant was 40 years old and was babysitting the 14-year-old victim and her brothers while their parents were on vacation. The victim testified that defendant was twice her weight and that the defendant lifted up one of her arms to take off her shirt, pushed her down onto the bed, and used his hands to hold her wrists and forearms above her head while he had sex with her. Based on the totality of the circumstances, the state established physical force with respect to the rape and sex abuse. State v. O'Hara.
Contempt- Validity of Underlying Court Order is not Dispositive for Punitive Contempt
Contempt can be based on an invalid court order where the defendant was aware of a valid requirement. Defendant was held in punitive contempt of court for failure to appear. The defendant argued that the release agreement requiring him to attend hearings was unenforceable. The court held that in the context of punitive contempt, the validity of the underlying order is not dispositive. It is enough that there was evidence that the defendant was aware of a requirement to appear and willfully violated it.
On a second count, the defendant argued that a supplemental local rule did not require him to appear and that there was no evidence, other than an OJIN record, that showed that the trial court directed him to attend. The court held that there may have been other evidence that the trial court required defendant to attend the hearing, such as an earlier hearing attended by the defendant where it can be inferred he was told to attend. Therefore, the trial court was not in plain error in rejecting defendant's motion for judgment of acquittal.State v. Graham.
Merger > Merger for Two Counts of Theft Based on Two Theories of Theft for Same Property
Taking and selling the same property constitutes one act for the purpose of merger in a theft case. The various forms of unlawful property deprivation have been consolidated into a single offense of theft under ORS 164.015 and State v. Cox. State v. Harper.
Merger > Resisting Arrest of Two Officers
Where defendant committed a single offense of resisting the contemporaneous efforts of the two officers to arrest him, it is plain error to not merge the charges into a single conviction. Defendant here did not separately resist each officer but made a single act of resisting arrest while both officers attempted to arrest him at the same time, since there was no lapse of time to separate the act(s) of resisting arrest, the trial court should have merged the separate charges into one conviction. State v. Birchard.
Evidence Procedure > Issues Developed After Pretrial Motions
It was improper for the court to exclude a defense expert on county protocols for child sex abuse investigation. The need to call the expert arose in the middle of trial after the police investigator denied familiarity with the protocols. There were no timeliness issues because it was not a discovery violation, and the state could have easily found a rebuttal witness who knew about the protocols if desired. The evidence was relevant because ORS 418.747 indicates that all law enforcement personnel are bound by the county's protocols. It was a proper subject for an expert because the investigation of sex cases is outside the familiarity of most lay people. State v. Hites-Clabaugh.
Dependency > Excusable Neglect
"Parental rights should not be terminated because of a good faith - if careless - mistake as to the time of a hearing." Here, mother mistakenly wrote down the wrong time for a pretrial hearing and attempted but failed to obtain transportation to court when she realized her mistake. The state did not demonstrate any prejudice or reliance that would outweigh the mother's parental rights. Thus, the trial judge abused its discretion in denying mother's motion to set aside the judgment terminating her parental rights. DHS v. KMP.
