State v. Simon

• Decision Date: 15 November 2018
• Docket Number: A161756
• Citation: 433 P.3d 385,294 Or.App. 840
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Howard James SIMON, Defendant-Appellant.
• Court: Oregon Court of Appeals

294 Or.App. 840
433 P.3d 385

STATE of Oregon, Plaintiff-Respondent,
v.
Howard James SIMON, Defendant-Appellant.

A161756

Court of Appeals of Oregon.

Argued and submitted August 15, 2017.
November 15, 2018

Kendra M. Matthews, Portland, argued the cause for appellant. Also on the briefs was Boise Matthews LLP.

Jennifer S. Lloyd, Assistant Attorney General, Salem, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General.

Before Tookey, Presiding Judge, and Shorr, Judge, and Linder, Senior Judge.

LINDER, S. J.

294 Or.App. 842

Defendant appeals from a judgment of conviction on one count of unlawful sexual penetration in the first degree, ORS 163.411 (Class A felony), and seven counts of sexual abuse in the first degree, ORS 163.427 (Class B felony). Defendant’s assignments of error frame two main issues on appeal.¹ One issue

433 P.3d 388

is whether OEC 803(18a)(b), the hearsay exception for statements concerning sexual abuse, extends to double hearsay—that is, a statement by a victim to one person, who reports the statement to a second person, who then relates the victim’s statement at trial. The second issue is whether defendant established that, because of cognitive deficits that were diagnosed after trial, he was not competent to be sentenced or to stand trial. For the reasons we explain below, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

We begin with a summary of the evidence at trial and the procedural events that gave rise to the issues on appeal. In our analysis of the hearsay and competency issues raised on appeal, we provide added factual and procedural details that have particular relevance to those discrete issues.

Defendant was charged with a total of eight sexual offenses committed against three girls. Two of the girls (KLM and SAM) are twin sisters; the third (KCH) is their older cousin. Defendant is their uncle. The victims were between five and nine years old when the crimes were committed, which occurred over a period of years and involved multiple, isolated incidents of sexual touching. The victims’ allegations did not come to the attention of law enforcement authorities until several years after the abuse ended. By the

294 Or.App. 843

time of trial, KCH was 24 years old; the twins were 16 years old; and defendant was 80 years old.

Each of the three victims testified at trial and gave their first-hand accounts of defendant’s sexual contacts with them. According to KCH, when she was about eight or nine years old, while defendant and his wife were babysitting her for the day, defendant took her to an upstairs bedroom, sat her on the bed, lifted her skirt, and began to rub his hand above her vagina, while asking her if what he was doing "felt good." KCH’s memory of that touching was vivid. She also remembered other times when defendant touched her inappropriately, but by KCH’s own account, those other memories were fainter and more indistinct.² The twins, KLM and SAM, testified to sexual touching by defendant that began when they were between about five and seven years old and stopped around third grade. In particular, KLM recalled times when defendant fondled her buttocks while greeting and hugging her. Both twins also described their memories of inappropriate touching by defendant when he would go swimming with them. KLM remembered how defendant would touch her vagina and her buttocks, both underneath her swimsuit and over the top of it.³ SAM likewise remembered defendant touching her vaginal area, but only over the top of her swimsuit. Finally, SAM also remembered several other sexual contacts by defendant in his home when she and KLM were being babysat by defendant and his wife. As to those contacts, SAM remembered that once, while she was with defendant in a bedroom, defendant put lotion on her legs and touched her vaginal area with his hand. Another time, while SAM was with defendant in the living room, defendant had SAM touch his penis with her hand and move her hand while he watched a pornographic video on TV. SAM also remembered, on a different occasion when

294 Or.App. 844

she was with defendant in the living room, that defendant touched her vagina with his hand and penetrated her vagina with his finger.⁴

433 P.3d 389

The victims each described feeling traumatized and confused by defendant’s sexual contacts with them, and were reluctant to tell anyone about the abuse. While still in grade school, KCH confided in a few friends and cousins, telling them that her uncle (defendant) was a bad person, and sometimes saying that he had molested her, without describing the details of the abuse. Towards the end of high school, KCH finally told her mother that defendant had abused her when she was younger, again without giving details, but her mother (defendant’s sister-in-law) insisted that KCH not tell anyone. The twins both testified that they confided in each other after the abuse began, sometimes crying together at night; but they did not tell each other details. KLM’s father testified that, once, after KLM came home from defendant’s house upset and crying, one or both of the twins told him that that they were not comfortable around defendant because he touched them on their butts; KCH also said that defendant touched her "on the front too," which her father understood to mean between her legs. Their father got upset, told their mother (his then-wife and another of defendant’s sisters-in-law), and threatened to confront defendant. But, according to the twins’ father, their mother insisted that the conduct was not "that bad" and stopped him. Their mother did, however, call KCH, tell her what KLM had said, and ask KCH if defendant had done anything like that to her. KCH testified that, when she answered yes, the twins’ mother told her not to talk about it.

Although defendant’s alleged abuse of KCH stopped when she was about nine years old, she testified that various things would "trigger" her memory, causing her to have

294 Or.App. 845

traumatic "flashbacks" of defendant touching her vaginal area in the upstairs bedroom. A grade-school friend, who also had briefly been KCH’s boyfriend in college, testified that he witnessed KCH go through those traumatic reactions well into her college years. After college, while in graduate school, KCH began seeing a psychotherapist to deal with having been abused when she was young. During that time, KCH decided to bring defendant’s abuse to the attention of authorities, which led to KCH being interviewed by a detective.⁵ As part of the investigation, the detective recorded a phone call between KCH and defendant in which KCH confronted defendant about his abuse of both her and KLM; defendant denied the allegations. The detective also interviewed KLM, who had difficulty talking about the abuse, but described defendant’s fondling and groping during hugs and while swimming; KLM also suggested that SAM may have been abused. The detective interviewed the twins’ mother, who confirmed that one of the twins had made a limited disclosure of the abuse to their father several years before.

The detective’s investigation resulted in referring the twins for CARES interviews and physical examinations.⁶ Each of the twins was individually interviewed; each interview lasted about 45 minutes and was video recorded. The videos were played in full at trial for the jury as substantive evidence. The twins’ statements to the CARES interviewer about defendant’s sexual contacts paralleled the substance of their testimony at trial. The videos also permitted the jury to observe the twins’ demeanor during the interviews, their difficulty talking about the abuse, and how the interviews were conducted.

294 Or.App. 846

Numerous other witnesses also testified. The state presented several witnesses

433 P.3d 390

(friends, family members, and KCH’s psychotherapist) who corroborated the disclosures that the victims had made over the years as well as other corroborating circumstances, such as the victims’ discomfort around defendant, and, in KCH’s case, the traumatic flashbacks that she experienced. Defendant’s case focused on impeaching the victims’ credibility by cross-examining the victims and the corroborating witnesses in an attempt to expose inconsistencies in the statements that the victims had made over time, inherent weaknesses in their accounts of events, and other circumstances that arguably undercut the victims’ and the state’s other witnesses’ believability (such as bias due to intrafamily tensions). By way of an affirmative case, defendant presented character witnesses who testified that defendant was sexually appropriate around children; his wife, who testified that, when she and defendant babysat the victims, none of the victims was ever out of her sight or alone with defendant; and the twins’ mother, who testified that the twins were lying about the abuse.⁷

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