State v. Middleton

• Decision Date: 16 September 1982
• Docket Number: No. 80-12-511,80-12-511
• Citation: 648 P.2d 1296,58 Or.App. 447
• Parties: STATE of Oregon, Respondent, v. Lawrence E. MIDDLETON, Appellant. ; CA A21064.
• Court: Oregon Court of Appeals

Page 1296

648 P.2d 1296

58 Or.App. 447

STATE of Oregon, Respondent, v. Lawrence E. MIDDLETON, Appellant.

No. 80-12-511; CA A21064.

Court of Appeals of Oregon.

Argued and Submitted April 23, 1982.

Decided Aug. 4, 1982.

Reconsideration Denied Sept. 16, 1982.

David E. Groom, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

Before GILLETTE, P. J., and WARDEN and YOUNG, JJ.

GILLETTE, Presiding Judge.

Defendant was convicted of the first degree rape of his 14-year old daughter. He appeals, assigning as error the admission of certain testimony and the denial of his motion for a new trial on the basis of newly discovered evidence. We affirm.

Defendant was divorced and had custody of his four children, including the victim. On December 23, 1980, the victim told a friend at school that she had been raped that morning by her father. She then told the friend's mother, who reported the incident to the Children's Services Division (CSD) and took the victim to a hospital for an examination. The doctor found evidence of vigorous sexual intercourse and diagnosed rape within the past 24 hours. The victim recounted the details of the rape to a county juvenile counselor and a police officer. Defendant was arrested, and the children were removed from the home. The victim was placed in foster care. She testified before a grand jury on December 30 or 31, 1980; defendant was indicted.

On February 6, 1981, the victim wrote a statement, witnessed by her mother and two other persons, stating that she had lied about the rape and had made up the story because she wanted to be out on her own and thought that, by saying she was raped by her father, she would be able to leave home. She stated that she was influenced by her half-sister and others who pushed her into making statements that were not true. Other testimony offered at trial indicated that she had told several persons that she had lied about the rape and had told still others that she was going to say that there had been no rape because she did not want her father to go to prison. Her testimony at trial, however, was consistent with the original reports of rape made in December.

During the trial, four witnesses were allowed to testify that the victim had told them that she had been raped by her father. Two of the witnesses were allowed to give detailed accounts of the incident as related to them by the victim. In addition, a county juvenile counselor and a CSD social worker were allowed to testify that, in their dealings with her, the victim acted similarly to other children who had been sexually abused by family members.

After defendant was convicted, the victim contacted a Portland newsperson. She made a video-taped statement in which she stated that she had lied when she said that her father had raped her. Defendant moved for a new trial, submitting the video tape in support of that motion. The trial court viewed the tape, ruled that the evidence was cumulative of evidence already introduced at trial and denied the motion.

Defendant first assigns error to the admission of the testimony of the witnesses who were allowed to recount the report of the rape made to them by the victim. The testimony allowed was beyond the scope of the specific exception to the hearsay rule for sexual assaults:

" * * * (A) person to whom a complaint of sexual misconduct is made by the prosecuting witness can testify that a complaint was made, but cannot testify as to the details of the complaint." State v. Waites, 7 Or.App. 137, 140, 490 P.2d 188 (1971).

See State v. Hackett, 49 Or.App. 857, 621 P.2d 609 (1980); State v. Yielding, 238 Or. 419, 395 P.2d 172 (1964). ¹ Its admissibility-if any-must therefore be found in some other evidentiary rule. ²

The trial court allowed the testimony as a prior consistent statement admissible to rehabilitate the prosecuting witness after she had been impeached by her written statement retracting the claim of rape. ³ Prior consistent statements are admissible in certain circumstances:

"Ordinarily a witness's out-of-court statements are not competent evidence to corroborate his in-court testimony. However, where the witness's credibility has been attacked on the ground that his testimony is a recent fabrication or that he has some motive for testifying falsely, evidence that he made consistent statements when the motive did not exist is admissible." State v. Clark, 26 Or.App. 55, 57, 551 P.2d 1313, rev. den. (1976).

See also State v. Drew, 8 Or.App. 471, 475, 494 P.2d 270, rev. den. (1972); McCormick, Evidence 102-107, § 49 (2d ed Cleary 1972).

In State v. Clark, supra, the court allowed the admission of testimony concerning the victim's report of a sexual assault after the defendant had impeached the victim by suggesting a motive to fabricate the story of the assault. In Clark, the defendant's theory was that his stepdaughter invented the assault, because she resented the fact that he had remarried and that she was required to spend time caring for her half-brother. We held that testimony concerning reports of sexual contact between the defendant and his stepdaughter had before the suggested motive for fabrication was admissible on the issue of the credibility of the complaining witness.

In this case, part of defendant's theory was that his daughter invented the story of the rape because she wanted to get away from home and live nearer her boyfriend. This theory is not the same as that in Clark. Here, the victim's suggested motive-getting away from her father-arose prior to any of her reports. The challenged evidence was not " * * * evidence that (she) made consistent statements when the motive did not exist." If defendant's theory on impeachment had been limited to this approach, the trial court's ruling would have been error.

Defendant, however, had a second theory of impeachment. He attempted to show that the victim's testimony at trial was the result of pressure by her sister, her attorney and the CSD social worker to go back to her original story of being raped. Against this theory, the victim's statements-which were made prior to the time any such "pressure" could have been exerted-were admissible as prior consistent statements. State v. Clark, supra. The trial court did not err.

Defendant's second assignment of error concerns the testimony of a county juvenile counselor and a CSD social worker, both of whom were asked to compare the behavior of the victim with that of other sexually abused children. Defendant does not contend the witnesses are not experts; rather he contends that their testimony invaded the province of the jury.

The county juvenile counselor, called as a witness for the prosecution, testified that she interviewed the victim. She described the way the victim acted during that interview and then testified as follows:

"Q. And have you interviewed other children who have reported that they have been abused sexually by a family member?

"A. Yes.

"Q. How do-what is the typical response upon initially speaking with you, a juvenile court worker, in terms of their demeanor, holding their hands and-

" * * *

"A. I found her behavior very much in keeping with children who have complained of sex molestation at home."

The CSD worker was called by defendant and was questioned about the victim's behavior between the time the rape was reported and the time of trial. She indicated that the victim had run away from foster care and had skipped school. She was also questioned about whether the victim had wanted to retract her claim that she had been raped. On cross-examination she testified as follows:

"Q. Are you familiar with behavior of children who have reported this type of claim?

"A. Absolutely.

" * * *

"Q. Now, Mrs. Lindemann, regarding the behavior of the child, * * * of running away from two foster homes, can you characterize that testimony or that behavior * * * in terms of other sexually abused children?

"A. Yes, that is very characteristic. What happens with children is that they get very anxious and are guilt-ridden. They carry the responsibility. When we talk about sex victims, we are really talking about victims, and children really assume so much of the guilt and so much of the responsibility for what has happened, that one of the ways that teenage kids and kind of impulsive kids handle that kind of thing is simply to run away. That is a very common kind of thing for a child to do.

"Q. Now, what about retracting reports before a Grand Jury or made to police? What about that?

"A. That is also a very common kind of thing to happen. When a child does do that, again because of the guilt, that they felt the responsibility, they realize this is my father or my stepfather or whatever, this is my parent and I still care for this person. And look what I'm doing to them. And look what I'm doing to my family. And the easiest thing to do, of course, is to say gee, I just made it all up and it isn't true after all. I think that kids would like that to actually be true. They wish it were true, that it hadn't happened.

"Q. Is any of the behavior that you have learned of (the victim), in supervising her case, different than other sexually abused children?

"A. No, it's not different at all, it's very typical for a teenage sex abuse victim."

The Supreme Court has recently stated that

" * * * The test (of the admissibility of expert testimony) is not whether a jury is capable of drawing its own inferences from the evidence presented. Rather, the test is whether the expert's testimony, if believed, will be of help or assistance to the jury." State v. Stringer, 292 Or. 388, 391, 639 P.2d 1264 (1982).

See also Koch v. Southern Pacific Co., 266 Or. 335, 513 P.2d 770 (1973)....