State v. Inman, A153569

• Decision Date: 30 December 2015
• Docket Number: A153569
• Parties: STATE OF OREGON, Plaintiff-Respondent, v. KENNETH EUGENE INMAN, Defendant-Appellant.
• Court: Oregon Court of Appeals

STATE OF OREGON, Plaintiff-Respondent,
v.
KENNETH EUGENE INMAN, Defendant-Appellant.

A153569

COURT OF APPEALS OF THE STATE OF OREGON

Argued and submitted on November 10, 2014
Resubmitted en banc October 15, 2015
December 30, 2015

Curry County Circuit Court
12CR0651

En Banc

Cynthia Lynnae Beaman, Judge.

Zachary Lovett Mazer, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Gregory A. Rios, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Tiffany Keast, Assistant Attorney General.

Before Haselton, Chief Judge, and Armstrong, Ortega, Sercombe, Duncan, Nakamoto, Hadlock, Egan, DeVore, Tookey, Garrett, and Flynn, Judges.

HADLOCK, J.

Affirmed.

Armstrong, J., concurring.

Ortega, J., concurring.

Sercombe, J., dissenting.

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HADLOCK, J.

Defendant challenges his convictions for first-degree sodomy, a violation of ORS 163.405, and harassment, a violation of ORS 166.065. He first argues that the trial court erred by "permitting" a police detective to comment on the credibility of another witness, the sodomy victim, despite the lack of any objection by defendant to that aspect of the detective's testimony. As explained below, even if we agreed that the trial court plainly erred by not striking that testimony sua sponte, we would decline to exercise our discretion to correct the error. Accordingly, we need not determine whether the trial court plainly erred in the way that defendant contends. Defendant also argues that the trial court erred when it made various rulings related to defendant's conviction by nonunanimous jury verdicts (11-1 on sodomy; 10-2 on harassment) and when it imposed the 300-month statutorily mandated sentence on his sodomy conviction. We reject each of those latter arguments without further discussion. Accordingly, we affirm.

In addressing defendant's argument that the trial court plainly erred by failing to strike certain testimony sua sponte, we consider the evidence in the light most favorable to the state. State v. Wilson, 266 Or App 481, 482, 337 P3d 990, rev den, 356 Or 837 (2014). Later, in exploring whether we should exercise our discretion to correct any such error, we consider all of the pertinent evidence and other relevant aspects of the record. Cf. State v. Blaylock, 267 Or App 455, 456 n 1, 341 P3d 758 (2014), rev den, 357 Or 299 (2015) (explaining that "we look at all pertinent evidence" when assessing whether evidentiary error was harmless). We describe the facts in keeping with those

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standards.

This case involves several children, including J (the sodomy victim), E (the harassment victim, and a friend of J), R (another of J's friends), and Q (J's older brother). In early 2012, defendant moved into the home where R lived with her parents and siblings; he stayed there for five or six months. J and E, who then were about seven years old, and Q, who was about eleven years old, often played at R's house during the summer. One afternoon in June or July, Q saw defendant in an upstairs bedroom in that house, bending down in front of J with his face near her "privates." J's pants were down around her ankles and she had no underwear on. Q heard defendant ask J if he could "lick her privates"; Q also heard J ask defendant to stop what he was doing. Q ran downstairs and tried to tell R's parents what was happening, but they were occupied and did not pay attention to him. Q went home and told his mother (who is also J's mother) what had happened, but she testified at trial that she had not understood Q and, consequently, did not immediately learn of the abuse.

On August 15, J's mother did receive information about the abuse, which prompted her to call the sheriff's office. A deputy sheriff spoke with J and Q before the case was referred to the Brookings Police Department. The next day, J's mother met with a detective from that department, McCourt, and told him that defendant had abused J "a couple of times."

McCourt then contacted defendant and asked him about the allegations. Defendant told McCourt that the children had "conspired against him to make up these

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allegations" because "he wouldn't play with them anymore." Defendant also told McCourt that he had kissed J on the nose and on the cheeks, and that he might have contacted her "crotch area" when they were "playing around." Defendant denied performing oral sex on J, telling McCourt that he "would never do anything they wouldn't like or want." Defendant also told McCourt that J had told him that somebody else had performed oral sex on her about a month earlier.

McCourt interviewed Q on the day after his mother first contacted the sheriff's office about the abuse. Shortly thereafter, Q was interviewed by Dotson, a forensic interviewer at the local child-advocacy center. In addition, McCourt coordinated a "pretext call" from Q to defendant. During that call, McCourt gave "information and questions to [Q] about what to say," because the child was having difficulty talking to defendant. McCourt "kind of felt bad while [they] were doing it," but he believed that the pretext call "was necessary to try to get as much evidence as we could." Defendant apparently made no admissions during that call. Q also spoke with a prosecutor a few times in the weeks before trial.

McCourt also spoke briefly with J on the day following her mother's report to the sheriff's office, but he "did not talk to [her] about the case at all." That same day, Dotson conducted a forensic interview of J, who told Dotson that she was at the center because "a guy molest [her]." Dotson testified that the word "molest" is not a word that a child J's age typically would know or use. Dotson asked J if she knew what "molest" means and J said that she had forgotten. J then told Dotson that defendant had licked her

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vagina with his tongue and that it happened once, at night, about a week before the interview.¹ Dotson testified that about 50 percent of children J's age use the word "vagina." J also spoke with the prosecutor before trial.

At some point, E (one of J's friends) disclosed that, one day while the children were playing at R's house, defendant had grabbed her legs and looked under her dress. At trial, she testified that defendant's actions made her feel nervous because she did not "know what [he] was going to do." E told defendant to stop, but he did not, so she ran back to her home.

During her forensic interview, J also disclosed that, on a particular occasion when defendant and E were present, defendant looked under the two girls' dresses. J also described another incident when defendant looked under E's dress while he pretended to take a nap.

The state initially charged defendant with two counts of first-degree sodomy and three counts of harassment, but later dismissed some of those charges. Consequently, defendant was tried on one count of first-degree sodomy (against J) and one count of harassment (against E).

In his opening statement, defendant suggested that "the amount of contact and discussions about this" that occurred between J, Q, and their mother "before the police ever got involved" might cause the jurors to question whether certain standards for

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sex-crime investigations had been met. Q, J, Dotson, McCourt, and E then testified to the facts described above. In apparent support of an argument that the children had been interviewed too many times, defendant cross-examined Dotson about protocols for investigating child sex-abuse cases. In response, she agreed with defense counsel's statement that, according to those guidelines, "you're to try to minimize the number of interviews with the child." Dotson also acknowledged that she believed that J had spoken to her mother about the abuse.

During his direct examination, McCourt was asked about conversations that he and prosecutors had with J shortly before trial. McCourt responded with the testimony that is the subject of defendant's "vouching" argument on appeal:

"Q. * * * What was the purpose of those visits?

"A. We like to make--We like to talk to the witness again before the trial just to see, make sure they're going to be able to--if they're going to be able to come testify in a court, make sure they still remember, or if they have--if they decide--Let's say that they were lying to us or they told us a fib, we like to find that out before we get to this point so we can--we don't have to waste your time and the court's time. And we talked to her on the Thursday of last week.

"Q. Okay. And if there had been any inconsistencies or any problems, wouldn't those have needed to be reported to all parties?

"A. Yes.

"Q. And you did not write any such a report or * * * note any such inconsistencies at any time?

"A. I did not."

Defendant did not object to that testimony. The prosecutor did not linger on the topic of McCourt's conversations with J, but instead moved to questioning

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McCourt about the interviews of Q and the other children.

After the state rested, defendant called J's mother as a witness and questioned her about how she interacted with J after she learned of the abuse. In addition, defendant asked J's mother about her understanding of when the abuse had occurred. Defendant also called McCourt and questioned him about the information that he had received from J's mother on the same topic.

Defendant then testified on his own behalf. He described the relationships among the children and testified that he played with them, "swinging them around in circles" and catching them as they jumped off of things. Defendant denied ever having attempted to perform oral sex on J; he also denied having tried to look between E's legs. On cross-examination, defendant downplayed what he had told McCourt about the children having been upset at him for not playing with them; he testified that the children had...