State v. Newberry

• Decision Date: 05 March 1979
• Docket Number: No. 18-071,18-071
• Citation: 39 Or.App. 119,591 P.2d 404
• Parties: STATE of Oregon, Respondent, v. Thomas Norman NEWBERRY, Appellant. ; CA 11202.
• Court: Oregon Court of Appeals

Page 404

591 P.2d 404

39 Or.App. 119

STATE of Oregon, Respondent, v. Thomas Norman NEWBERRY, Appellant.

No. 18-071; CA 11202.

Court of Appeals of Oregon.

Argued and Submitted Dec. 21, 1978.

Decided March 5, 1979.

J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Karen H. Green, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

Before SCHWAB, C. J., and THORNTON, BUTTLER and GILLETTE, JJ.

BUTTLER, Judge.

Defendant appeals his conviction by a jury of the crime of rape in the first degree, having been charged with kidnapping, rape and sodomy.

At trial, during cross-examination of the victim and other witnesses, testimony was elicited to the effect that the victim did not report the alleged sodomy to some of the investigating officers who questioned her after the incident. Also, victim could not recall whether she had reported the alleged sodomy to the investigating officers. Subsequently, for the purpose of rehabilitating the testimony of the victim and rebutting the implication of a recent fabrication by her, the prosecution elicited testimony from a different officer and from a nurse at the hospital where the victim was examined, that the victim had reported the alleged sodomy to them within a few hours after the incident. The prosecution also introduced a tape recording of an investigating officer's interview with the victim during which she mentioned the alleged sodomy.

Defendant objected to this testimony, contending that these prior consistent statements were inadmissible hearsay. He did not request, nor did the court give, a jury instruction that such evidence should be considered only on the issue of the victim's credibility. He assigns as error the admission of the testimony and the failure of the court to give a limiting instruction Sua sponte.

The rule in Oregon with respect to the admissibility of prior consistent statements of a witness is clear:

"The only conclusion which could be drawn from defendants' attack on the credibility of plaintiff's witness was that defendants were contending either that the witness was giving recently contrived testimony or he had a failing memory, or both. In any event, we hold the introduction of the witness's prior consistent statement to be proper. It tended to prove both that his testimony was not recently contrived and that at a time when his memory was fresh he remembered the occurrence in conformance with his testimony at trial." Cook v. Safeway Stores, Inc., 266 Or. 77, 88-89, 511 P.2d 375, 381 (1973).

See also State v. Clark, 26 Or.App. 55, 551 P.2d...