State v. Bumgarner

• Decision Date: 07 May 2008
• Docket Number: A126264.,03CR1425FE.
• Citation: 184 P.3d 1143,219 Or. App. 617
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Kevin Mitchell BUMGARNER, Defendant-Appellant.
• Court: Oregon Court of Appeals

184 P.3d 1143

219 Or. App. 617

STATE of Oregon, Plaintiff-Respondent, v. Kevin Mitchell BUMGARNER, Defendant-Appellant.

03CR1425FE.

A126264.

Court of Appeals of Oregon.

Argued and Submitted on May 17, 2007.

Decided May 7, 2008.

J. Michael Alexander, Salem, argued the cause for appellant. With him on the briefs was Swanson, Lathen, Alexander & McCann, PC.

Paul L. Smith, Assistant Attorney General, argued the cause for respondent. On the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Anna M. Joyce, Assistant Attorney General.

Before WOLLHEIM, Presiding Judge, and ARMSTRONG and SERCOMBE, Judges.

SERCOMBE, J.

This is a criminal case in which defendant was convicted of a number of sex crimes involving a four-year-old child. On appeal, defendant makes five assignments of error, four of which relate to his convictions and one of which relates to his sentence. For the reasons explained below, we affirm defendant's convictions, but remand for resentencing.

On a hot day in mid-August 2003, defendant, his daughter, and several members of his ex-wife's family gathered at a family member's house. Among the people present were the son and daughter of defendant's former brother-in-law, N and the victim, respectively.

Early in the afternoon, the group decided to go swimming in a local river and have a barbecue. They took several vehicles. The four-year-old victim and her 10-year-old brother N rode with defendant in his truck. The truck had a bench seat and a standard transmission with a shifter on the floor. N sat by the passenger-side window, and the victim sat between N and defendant.

After defendant left with the children, there was some confusion about the exact location where the group would reconvene, and defendant drove down a number of roads that led toward the river, looking for the others. Defendant had been drinking beer earlier, and he continued to drink during the drive. N testified that defendant, while going down the roads, hit a pole and a tree, and backed into another tree. According to the victim, when defendant hit a tree, she was thrown hard into the gear shift. Each time they went a short way down those roads, defendant asked N to get out of the truck to look for the rest of the group. N testified that the victim appeared to be content when he left the truck, but would then be crying when he returned. N also testified that, while they all were in the truck, defendant kept reaching up the victim's dress and touching her on her upper thigh, "where her underwear was." After trying in vain to find the rest of the family for two to three hours, defendant took the children to his house.

Meanwhile, other family members were concerned that defendant and the children had not shown up. According to defendant's daughter, "my dad had been drinking [and family members] were realizing, oh, my God, you know, the kids are with him, he's not here, he's been drinking. You know, they were a little concerned." Eventually, defendant's son's girlfriend called defendant's house from a telephone at a ranger station. When she got off the telephone, having confirmed that defendant was at his house and that he had the children with him, she was concerned. "She said that [defendant] was being weird." Defendant's daughter and defendant's former brother-in-law went to defendant's house to get the children.

Defendant had a pool at his house that was partially filled with water and inhabited by water spiders and other insects. N testified that, after defendant took them to his house, he and the victim were by the pool looking at the insects when defendant came out of the house, first in a grey T-shirt and underwear and a short time later in a T-shirt with nothing else on. N testified that defendant then took the victim into the house, leading her by the hand.¹ A few minutes later, N heard the victim screaming. N testified, "I knew she was getting hurt because she never screamed like that before. I've heard her throw a fit, and like I've heard her cry because she got hurt, and it wasn't like that. It was really, really bad." After hearing his sister scream for five minutes, N went into the house, where he encountered defendant, emerging from his bedroom. Defendant obscured the doorway so that N could not see into the bedroom. Defendant returned to the bedroom, closing and locking the door.

N pounded on the closed door, as the victim continued to scream from inside the bedroom. Defendant told N (through the closed door) that the victim was all right, but that she had been scratched by his cat. Defendant also said that he wanted the victim to take a bath, but that she didn't want to. N testified, "I knew that those were excuses because I'd never heard her scream before like that." N tried to open the door to the bedroom, but he could not move the handle. Meanwhile, the victim was screaming, "I'm in here" and "Help me." N found a telephone and tried to dial 9-1-1, but he could not get the telephone to work. N then went to the next-door neighbor's house, who called police.

Deputies Koberstein and Pariani responded to the emergency call at about 5:00 p.m. They went first to the neighbor's house, where they encountered N, who was, according to Koberstein, "traumatized, he was upset." Koberstein testified that N "was absolutely sure that his sister was in pain and hurting. She had been screaming for her daddy from behind a locked bedroom door." The deputies then went to defendant's house. As they arrived, they encountered defendant, dressed only in a tank top and with a partially erect penis. As the deputies approached the house, defendant retreated into the house, ignoring commands to get down on the floor. Based on defendant's furtive behavior-repeatedly glancing toward a closed box-Koberstein was concerned that defendant might reach for a weapon. Koberstein therefore "rushed" defendant and forced him onto the floor. In fact, Koberstein later found a loaded Glock pistol lying behind the box. Throughout the encounter, the deputies could hear a child crying or whimpering in the background.

With defendant subdued, Koberstein went to the victim, who was wearing a sundress and underpants and was curled up in a fetal position on a recliner, dirty and sweaty. Koberstein testified, "[I]n her eyes I saw a fear that—that I've only seen maybe once or twice in accident victims where children have been involved in car accidents and that kind of thing. She was severely, severely traumatized." When Koberstein asked the victim what had happened, she replied, "He had sex with me." Meanwhile, defendant was talking and "spouting off." Koberstein told him to be quiet, because his voice was traumatizing the victim. As Koberstein explained, "Every time he would say anything I could see her cringe, her fear return to her eyes again." While Koberstein and Pariani were processing defendant and the scene, defendant's telephone rang. When Koberstein went to answer it, he discovered that it was covered in a greasy, colorless substance. N testified that, when he had earlier attempted to use the telephone, it had been clean. Police later found an open jar of Vaseline in defendant's bedroom.

After defendant was placed in the patrol car, Koberstein asked the victim again what had happened. She responded that defendant had touched her where she did not want to be touched, pointing to her upper right thigh. The victim told Koberstein that defendant had taken her into the back room, despite the fact that she did not want to go there. She told Koberstein that she wanted to go with her brother, but that defendant would not let her. Koberstein testified:

"She said he grabbed her and indicated to me by her body movements that she was being held down around her waist, her midsection, and that she was on a bed. [The victim] said to me, `He had sex with me.' I asked [the victim] what she meant by that and she said, he was rude to me. I asked her where he'd been rude to her and asked her if she could show me, and she took me, my hand, and led me to the back bedroom * * *.

"She then led me into the living room and pointed to the same brown chair that I found her in in the fetal position when we arrived."

The deputy did not see any bruising or red marks on the victim's body.

Defendant's daughter and the victim's father (defendant's former brother-in-law) arrived at the scene. Defendant's daughter asked the victim what had happened. The victim replied, "That man tried to have sex with me." Although defendant's daughter saw no bruises on the victim that day, she saw "hand-print" sized bruises "all over" her the following day. The victim's father also asked the victim what had happened and, he testified, "I thought that she said he had sex with me." The next day, when he went to bathe the victim, her father noted bruising on her buttocks. "To me," he testified, "they looked like fingerprints on her buttocks."

Defendant, after donning blue jeans, was taken to the Douglas County Jail. He was initially placed in a cell that had a grate in the floor where an arrestee could urinate; there was some water around the grate that could be scooped out. Because he became combative when placed in the cell, defendant was placed in leg restraints. Defendant tried to take water from the area of the grate and put it on his face. At that point, he was placed in wrist restraints in addition to the leg restraints. Defendant then asked to use a toilet, so he was placed in another cell, one that had a toilet and a sink. Once in that cell, defendant tried to take water from the toilet and wash his genitals.

The victim was taken to Mercy Medical Center, where she was examined by Dr. Smith, a physician in the emergency department who had specialized training in sexual assault recognition. The examination revealed that the victim had a tear on the outside of her right labia, a tear just inside the left labia, and a lot of swelling of the left labia; s...