State v. Kim

• Decision Date: 20 January 2022
• Docket Number: A171036
• Citation: 317 Or.App. 126,503 P.3d 1272
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Abigail Minjung KIM, Defendant-Appellant.
• Court: Oregon Court of Appeals

317 Or.App. 126

503 P.3d 1272

STATE of Oregon, Plaintiff-Respondent,

v.Abigail Minjung KIM, Defendant-Appellant.

A171036

Court of Appeals of Oregon.

Argued and submitted November 15, 2021.

January 20, 2022

Stephen A. Houze, Portland, argued the cause for appellant. Also on the briefs was Jacob G. Houze.

Joanna Hershey, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Tookey, Presiding Judge, Aoyagi, Judge, and Armstrong, Senior Judge.

PER CURIAM

Defendant was convicted of second-degree rape, second-degree sodomy, and first-degree sexual abuse. On appeal, she raises four assignments of error, challenging several evidentiary rulings and a jury instruction. We affirm.

First assignment of error . Defendant argues that the trial court erred in denying her motion to suppress evidence obtained from her cell phone. The trial court denied the motion on the basis that defendant voluntarily consented to the search of her phone. Defendant maintains that she did not voluntarily consent or, alternatively, that the search exceeded the scope of her consent. Having reviewed the record, we reject those arguments and conclude that the trial court did not err in denying the motion to suppress.

Second assignment of error . Defendant contends that the trial court erred by allowing vouching testimony over her objection. "Vouching" is the expression of one's personal opinion about the credibility of a witness and is prohibited by judicial rule. State v. Chandler , 360 Or. 323, 330-31, 380 P.3d 932 (2016). Witnesses are categorically prohibited from expressing a view on whether another witness is "telling the truth," because credibility determinations are the exclusive province of the jury. State v. Middleton , 294 Or. 427, 438, 657 P.2d 1215 (1983).

Defendant was charged with committing sexual crimes against an autistic 13-year-old boy, K. At trial, K's treating psychologist testified regarding his observations of "the impact of autism

on [K]." As relevant here, the psychologist said that K "gets into a lot of imaginary things" and wants to be a scientist. When asked if K is able to come back to reality when redirected, even though he "gets very absorbed in these ideas about space and aliens and things of that nature," the psychologist said yes and talked about K's school performance. When asked if K is able to recount things that have happened to him, the psychologist said yes, that K has a good memory, and gave examples of K being able to tell him every school that he has attended, which ones he liked, where he has lived, and what those cities are like. When asked if K was able to discuss those things without incorporating his fantasy world, the psychologist answered that K "can be very real when it comes to, where do you live, what school do you go to, where are you going to live next, would you rather live here, rather live there."

The psychologist further testified that, if you give K a book that is not interesting to him, K will probably read a few paragraphs, get distracted, and need someone to get him on track. But he can read three paragraphs and tell you what he read. Asked if K can recount past events accurately, the psychologist testified to his experience with K being that he "can get [K] back on topic easily"; that K "has a very clear idea about who he is, where he lives, what his brothers are doing, what his father does"; that K can answer questions about what happened at school or on the weekend; and that K is pretty "reality based," such that his imaginative tendency "doesn't shape his whole orientation." Finally, asked if K has "a psychotic disorder

," the psychologist said he did not think so, explaining that a psychotic disorder is "when there's a major distortion in some form of reality which interferes with daily functioning," such as paranoia or schizophrenia, and K does not have that. The prosecutor then moved on to a different line of questioning.

Defendant contends that the trial court should have excluded some of the foregoing testimony as vouching. We disagree. "Admittedly, it is not always easy to draw the line between an inadmissible statement that is tantamount to a direct comment on the credibility of a witness and an admissible statement that is relevant for a different reason but that tends to show that a witness is telling the truth." State v. Beauvais , 357 Or. 524, 545, 354 P.3d 680 (2015). Here, however, we agree with the state that the witness was commenting generally on K's mental capacity to describe past events accurately, not expressing a view on whether K's accusations against defendant were truthful. Cf. Smith v. Franke , 266 Or. App. 473, 479-80, 337 P.3d 986 (2014), rev den , 356 Or. 689, 344 P.3d 1111 (2015) ("Testimony that a child demonstrated knowledge of the difference between the truth and a lie does not amount to testimony that the child...