State v. Ross
| Decision Date | 13 May 2015 |
| Docket Number | 12FE0153,A151742. |
| Citation | 271 Or.App. 1,349 P.3d 620 |
| Parties | STATE of Oregon, Plaintiff–Respondent, v. Robert Dean ROSS, aka Robert D. Roth, Defendant–Appellant. |
| Court | Oregon Court of Appeals |
271 Or.App. 1
349 P.3d 620
STATE of Oregon, Plaintiff–Respondent
v.
Robert Dean ROSS, aka Robert D. Roth, Defendant–Appellant.
12FE0153
A151742.
Court of Appeals of Oregon.
Submitted June 18, 2014.
Decided May 13, 2015.
Peter Gartlan, Chief Defender, and Daniel C. Bennett, Senior Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Karla H. Ferrall, Assistant Attorney General, filed the briefs for respondent.
Before DUNCAN, Presiding Judge, and HASELTON, Chief Judge, and WOLLHEIM, Senior Judge.
Opinion
HASELTON, C.J.
Defendant, who was convicted of various sexual offenses involving multiple victims, appeals. We write only to address defendant's assertions that the trial court committed reversible “plain error” by (1) admitting “vouching” testimony by a witness, Muggia, relating to victim RW's credibility with respect to Count 4 (first-degree unlawful sexual penetration) and (2) failing to instruct the jury as to the requisite mental state for forcible compulsion, a material element of first-degree sodomy and attempted first-degree sodomy, as charged in Counts 1 and 5. As explained below, the asserted errors either do not qualify as “plain error,” see State v. Brown, 310 Or. 347, 355, 800 P.2d 259 (1990), or we decline to exercise our discretion to correct them, see Ailes v. Portland Meadows, Inc., 312 Or. 376, 381–82, 823 P.2d 956 (1991). Accordingly, we affirm defendant's convictions.1
As pertinent to our review, defendant was charged with, and convicted of, committing sex offenses against a girl and two women who are directly, or collaterally, related to his wife: (1) RW, his step-granddaughter; (2) E, an adult cousin of RW's; and (3) RB, his adult step-daughter and RW's mother. As explained more fully below, the only charge relating to RW was Count 4 (first-degree unlawful sexual penetration). Counts 1 (first-degree sodomy) and 5 (attempted first-degree sodomy) related to E and RB, respectively. We separately relate the predicate circumstances of those charges below in our consideration of the asserted plain error as to each. For narrative and analytical coherence, we begin with the alleged impermissible vouching for RW's credibility.
1. Count 4: Admissibility of Muggia's “Vouching” Testimony
At the time of the charged conduct, sometime during the summer of 2006, RW was 10 years old. RW and her older
sister, S, were living with defendant and his wife, their maternal grandmother. According to RW, she awoke one morning to find defendant touching her genital area. That incident was not reported until May 18, 2007, when S disclosed it to a school counselor. That same day, S repeated the allegations to Child Protective Services child abuse investigator Valentina Muggia. Muggia, in turn, interviewed RW, who provided further details about the alleged abuse.
The state charged defendant with first-degree unlawful sexual penetration, ORS 163.411. Both RW and Muggia testified at trial. On direct examination, Muggia recounted RW's statements and demeanor during the May 18, 2007, interview. Then, after referring to Muggia's extensive training and experience interviewing child victims, the prosecutor and Muggia had the following exchange about that interview:
“Q. * * * [W]hat were the significant observations that you made in determining that there—there is a need for help here or intervention?
“A. Well, one is the—the specific amount of details that [RW] was able to disclose during the interviews. And then also her—her demeanor in how much this interview[ ] was affecting it and—and her anger that she had in expressing her feelings. Those were all collectively what led me to believe that indeed she had been molested. ”
(Emphasis added.)
The italicized statement is the basis of defendant's appellate assertion that Muggia impermissibly vouched for RW's credibility. Defense counsel did not object to, or move to strike, that statement. Rather, on cross-examination, defense counsel revisited Muggia's opinions as to RW's believability:
“Q. Okay. And part of your investigation, is it to decide whether what's being disclosed is true or not?
“A. I—I—part of my investigation is to determine whether I have enough evidence to say that child abuse has occurred.
“Q. Okay. And part of that evidence is to determine whether the—whether the child is telling the truth?
“A. I suppose so, yeah.
“Q. Okay. Well, you have to, I mean—okay. So you don't care so much about whether they're telling the truth if there's evidence?
“A. I guess it's in my experience if I founded the cases is because the child has been telling the truth.
“Q. Okay. So is it—have you investigated cases when child—children were not telling the truth?
“A. I—believe it or not, in my experience I only had two cases where the child was not talking—not saying the truth, and generally was because has been coached by a parent.
“Q. Okay. Or another person?
“A. Correct. So over 600–plus cases, I only had two.
“Q. So during your investigation process do you take precautions to make sure a child hasn't been coached?
“A. Well, that's part of the training that we received, yes.
“Q. Okay. So in this investigation did you take any steps to make sure no one was coaching her?
“A. Based on my experience, the way that the child disclosed, the amount of detail, and how she talked to me, she had not been coached.
“Q. Okay. Now, you said when you first talked to her she wanted to know what her sister had said.
“A. Uh-huh.
“Q. Didn't that throw up a flag for you?
“A. No, not at all. A lot of children, you know, do that, especially if they've been talked to—you know, they talk to a sibling about abuse that has happened. Especially if it's an older sibling, you know, they want to know that they are okay. They want to know that their sibling is okay. And so that's actually very common.
“Q. Okay. So—but—so you don't think that's a flag at all, that one person—one child is trying to make sure they're saying the same story as another child?
“A. No. Not in this case.
“Q. Okay. Do you think that's a mistake to do that?
“A. I—I don't. I guess from my experience is that when a child has been coached, they're not able to provide the details. They are very repetitive with the same answer. And so you can ask a different question, and the answer will be just the same. They're very limited in what they can offer. And this was not the case for [RW].”
Thus, defense counsel's questions not only invited Muggia to reiterate her previously expressed opinion about RW—but also called, repeatedly, for her to further develop and to defend that opinion.
During closing arguments, neither party mentioned Muggia's assessment of RW's believability. The state, in referring to Muggia's testimony, focused on the content of the statements that RW made to Muggia but did not comment on Muggia's assessment of the truthfulness of those statements.
On appeal, defendant argues that the trial court erred by failing to sua sponte exclude or strike Muggia's statement that, based, in part, on RW's statements, Muggia “believe[ed] that indeed she had been molested.” Defendant acknowledges that he failed to raise that issue before the trial court, but argues that the admission of that statement constitutes an “error of law apparent on the record,” ORAP 5.45(1), and that we should exercise our discretion under Ailes to correct it.
Generally, we will not consider an unpreserved issue on appeal. State v. Wyatt, 331 Or. 335, 341, 15 P.3d 22 (2000). We may, however, review an unpreserved assignment of error as one “apparent on the record” if (1) the error is one of law; (2) the legal point is “obvious”—that is, “not reasonably in dispute”; and (3) the error appears “on the face of the record,” such that “[w]e need not go
outside the record or choose between competing inferences to find it, and the facts that comprise the error are irrefutable.” Brown,...
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...to instruct the jury that it had to find that defendant knowingly subjected the victim to forcible compulsion, but, as in State v. Ross, 271 Or.App. 1, 349 P.3d 620, rev. den., 357 Or. 743, 361 P.3d 608 (2015), we conclude that the error was harmless. In addition, we conclude that, under St......
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...years of experience and training in the field of child abuse prevention, can be given considerable weight by the jury." State v. Ross, 271 Or.App. 1, 7, 349 P.3d 620, rev. den., 357 Or. 743, 361 P.3d 608 (2015).6 This is not such a case. McCourt was not presented as an expert in identifying......
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