State v. Rodriguez-Castillo

• Decision Date: 24 January 2007
• Docket Number: 030872.,A122360.
• Citation: 210 Or. App. 479,151 P.3d 931
• Parties: STATE of Oregon, Respondent, v. Cesar RODRIGUEZ-CASTILLO, Appellant.
• Court: Oregon Court of Appeals

151 P.3d 931

210 Or. App. 479

STATE of Oregon, Respondent, v. Cesar RODRIGUEZ-CASTILLO, Appellant.

030872.

A122360.

Court of Appeals of Oregon. En Banc.

Argued and Submitted February 22, 2006.

Resubmitted En Banc September 13, 2006.

Decided January 24, 2007.

Jamesa J. Drake, Deputy Public Defender, argued the cause for appellant. With her on the brief were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Office of Public Defense Services.

Kaye Ellen McDonald, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before BREWER, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, WOLLHEIM, SCHUMAN, ORTEGA, and ROSENBLUM, Judges.

ROSENBLUM, J.

Defendant was charged with a number of offenses including eight counts of first-degree sexual abuse. ORS 163.427.¹ A jury convicted him only on Count 7, first-degree sexual abuse, and acquitted him of the remaining charges. On appeal, defendant contends that the trial court erred in two respects: in admitting the hearsay testimony of a police detective concerning statements that the victim made to him through an interpreter and in failing to instruct the jury that 10 or more of its members must agree on the same set of underlying facts to convict him of any particular count in the indictment. We affirm.

We take the following undisputed facts from the record. Defendant and the victim are cousins, and both speak Spanish as their first language. The victim moved to the United States from Mexico in 2000 and, in the summer of 2002, went to live, along with her father and two brothers, with defendant and his family. The victim was 13 years old at the time. Sometime later that summer, defendant and his family moved out of the home and relocated temporarily to California. They returned to the home in October 2002. The events leading to defendant's trial and conviction occurred when the victim's family and defendant's family lived together, before defendant and his family moved to California.

Sometime after defendant returned from California, the victim told her friend Rosales and Rosales's mother, Cortes, that someone had touched her all over her body and raped her. Cortes told the victim that she should talk to her family about it. The victim then told her aunt that defendant had raped her. Her aunt explained to her what it means to be raped and asked her if she was sure. The victim then told her that it had not been rape but that defendant had touched her.

In December 2002, the victim disclosed to a tutor at her school, Perez, that someone had touched her "where they're not supposed to." The police were notified. Detective Lane interviewed the victim twice. He also interviewed defendant twice. We recount the substance of those interviews at some length below. Based on the victim's disclosures to him, Lane arranged for the victim to be examined and interviewed at CARES Northwest, a child abuse assessment center. The examination revealed no physical signs of abuse, but the victim told the examining nurse and a social worker at the center, Burton, that defendant had touched her genital area twice.

Defendant was charged with one count of unlawful sexual penetration in the first degree; one count of unlawful sexual penetration in the second degree; eight counts of sexual abuse in the first degree; and one count of private indecency. At the beginning of the jury selection process in defendant's trial, the court read the indictment to the potential jurors. All charges were based on incidents that were alleged to have occurred between December 2001 and August 2002. With respect to the sexual abuse charges, the indictment alleged that, on two "separate and distinct" occasions, defendant touched the victim's breasts and vagina.² For each act, the state charged two counts, one alleging that the victim was under the age of 14 and one alleging that defendant had subjected the victim to forcible compulsion.³

The victim testified at trial that there were three different incidents during which defendant subjected her to sexual contact. Each incident took place in the home that the victim and her family shared with defendant and his family. The victim testified that one incident occurred when she was playing a card game with her brother, defendant, and defendant's family. She testified that, after they finished the game, defendant touched her genital area on the outside of her clothes.

The victim testified further that, on another day, she was sitting on the couch in the living room watching television and defendant was sitting on the floor. According to the victim, her brother was asleep on the other couch and defendant's wife was sleeping in the next room. The victim testified that defendant touched her breasts and put his hand down her pants, touched her vagina, and inserted his fingers inside. She said that he later pulled her into the kitchen, showed her his penis, and told her to touch it.

The victim testified that a third incident occurred on a day when defendant's wife and children were in Salem. She stated that her cousin Martin and her brother had been at the house and that she had been playing outside with them and defendant; Martin later left. According to the victim, while her brother was taking a shower, defendant followed her into her bedroom, pushed her onto her bed, laid on top of her, and touched her breasts. She testified that that night she was watching TV when defendant came home from work, sat next to her, and touched her genital area on top of her clothes.

The state also presented corroborating evidence, primarily in the form of witness testimony, about statements that the victim made to those witnesses about being abused and statements that defendant made during the course of the investigation. Witnesses who testified that the victim had told them that defendant had abused her included the victim's friend Rosales, Rosales's mother, the victim's aunt, two school officials, Detective Lane, the CARES nurse who examined the victim, and Burton, the social worker.

As noted, Lane interviewed the victim on two occasions. Lane testified, without objection, to the substance of his initial interview with the victim, which occurred on December 5, 2002, after he was notified by staff at the victim's school that she may have been abused. One of the school's teachers, McCoy, helped interpret the interview. Lane testified that the victim was very hesitant to discuss the abuse; she eventually told him that defendant touched her "some place that made [her] feel uncomfortable," but then "shut down and quit talking."

Lane's second interview with the victim took place on December 9, 2002, with Perez, the victim's bilingual tutor at the school, acting as interpreter. Defendant objected to Lane's testimony concerning that interview on hearsay grounds, but the trial court ruled that the testimony was admissible under OEC 803(18a)(b) as a statement concerning an act of abuse. Lane testified that the victim was more willing to tell him what had happened: "[S]he started talking and information just started flowing out of her." According to Lane, the victim first described the day that defendant's wife had gone to Salem. Lane's testimony about what she said tracked many of the details that the victim gave in her trial testimony, including those about her cousin Martin, the game they played outside, the fact that defendant pushed her onto her bed and touched her breasts while her brother was in the shower, and that defendant touched her genital area later that night after he got home from work.

Lane also testified that the victim had told him about a night on which defendant's wife was sleeping in another room and her brother was asleep on the other couch, and defendant touched her while she was watching TV. According to Lane, the victim told him that defendant touched her breasts and then put his hand "in her pants under her underwear" and touched her on "the inside of her body." Lane testified that the victim also told him that defendant later pulled her into the kitchen, pulled down his pants and wanted her to touch his penis. Again, the details reflected the victim's trial testimony.

After Lane testified, the state called Perez as a witness. Perez testified that he had worked for six years as a Spanish language tutor at the victim's school. He also testified that Spanish was his native language and that he spoke the language "quite well." When the prosecutor asked Perez if he had accurately interpreted the conversation between Lane and the victim, he testified, "I think so. I think it's—yeah, as far as I—as far as I know." There was no evidence that Perez was certified as an interpreter or that he had any professional training as an interpreter.

The state also called Burton, the CARES social worker, to testify, and introduced the videotape of her interview with the victim, along with a translated transcript of the interview. The transcript shows that the victim told Burton about the incident in which defendant's wife was in Salem, including some of the details that she told Lane, but, beyond saying that it had happened twice, did not provide any details about any other incident.

The jury also heard testimony about defendant's interviews with the police. Lane testified regarding his first interview with defendant, which occurred on December 6, 2002. According to Lane, defendant denied touching the victim sexually but explained that he sometimes wrestled with the victim and that one time he picked her up and may have inadvertently touched the genital area over her clothes. Defendant was interviewed by the police again on February 11, 2003. That interview was videotaped, and portions of the videotape were played and interpreted for the jury. In the interview, defendant told the officers that, one night, the victim sat down very close to him...