State v. Stevens

• Decision Date: 30 April 1997
• Citation: 938 P.2d 780,147 Or.App. 592
• Parties: STATE of Oregon, Respondent, v. Gary Todd STEVENS, Appellant. 10-92-10418; CA A85716.
• Court: Oregon Court of Appeals

Page 780

938 P.2d 780

147 Or.App. 592

STATE of Oregon, Respondent, v. Gary Todd STEVENS, Appellant.

10-92-10418; CA A85716.

Court of Appeals of Oregon.

Argued and Submitted March 4, 1996.

Decided April 30, 1997.

[147 Or.App. 593-A] Stephen A. Houze, Portland, argued the cause and filed the brief for appellant.

Kay Sunderland, Salem, argued the cause for respondent. On that brief were Theodore R. Kulongoski, Attorney General, Virginia Linder, Solicitor General and Ann Kelley, Assistant Attorney General.

Before WARREN, P.J., and EDMONDS and ARMSTRONG, JJ.

EDMONDS, Judge.

Defendant appeals from convictions for murder by abuse and intentional murder of Sarah Rambeck, an 18-month-old child. ORS 163.115. He makes ten assignments of error. We discuss only those assignments that benefit the bench and bar, and we reverse defendant's convictions.

Sarah Rambeck died sometime between 9:00 p.m. and midnight on May 7, 1992, from massive blows to the abdomen and the head. Defendant and Sarah's mother, Lisa Rambeck, were the only two adults who were with Sarah during that time. At trial, defendant's position was that Sarah had been killed by her mother. Defendant did not offer his own testimony about what happened but offered circumstantial evidence of Rambeck's actions before and after Sarah's death that he claims demonstrates that she was the perpetrator of the crimes. In support of his theory of the case, defendant sought to offer evidence that Rambeck had slapped and screamed at her other two children in 1989 and 1992. Defendant's initial assignments of error concern the refusal of the trial court to admit that evidence during the cross-examination of Rambeck. The trial court ruled that the evidence was inadmissible character evidence.

Character evidence is evidence of a particular human trait and indicates a person's disposition or propensity towards certain behavior. State v. Marshall, 312 Or. 367, 371-72, 823 P.2d 961 (1991). OEC 405 provides that, when evidence of character is admissible, proof can only be made by reputation or opinion testimony and that specific instances of conduct are not admissible, subject to certain exceptions.

OEC 404(3) provides:

"Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

To be admissible under OEC 404(3), the evidence must be (1) independently relevant for a noncharacter purpose, (2) the proponent of the evidence must offer sufficient proof that the misconduct was committed and (3) the probative value of the misconduct must not be substantially outweighed by the unfair prejudicial effect of the evidence. State v. Hampton, 317 Or. 251, 254, 855 P.2d 621 (1993).

In State v. Gibson, 144 Or.App. 523, 928 P.2d 344 (1996), rev. den. 325 Or. 80, 934 P.2d 1126 (1997), we considered the admissibility of similar evidence of specific instances where the defendant had assaulted his other children in the context of an intentional murder and murder by abuse prosecution. We noted the lack of similarities between the prior misconduct and the circumstances surrounding the charged crimes. Accordingly, we rejected the state's argument that the evidence of the prior misconduct had any relevance to the defendant's state of mind regarding the events that led up to the death of the victim. Id. at 533, 928 P.2d 344.

In this case, defendant offered the specific instances of Rambeck's treatment of her other children to prove her "state of mind" and "modus operandi." The trial court did not err in ruling initially that defendant could not cross-examine Rambeck about her mistreatment of her other children to prove that she had killed Sarah. In substance, that evidence is simply evidence that, because she mistreated her other children in the past, she must have killed Sarah. The evidence is not probative to demonstrate that she abused Sarah on May 7, 1992, and is exactly the kind of character evidence that we held inadmissible in Gibson. Moreover, the circumstances surrounding Rambeck's treatment of her other children in public places bear no similarity to the circumstances surrounding the death of the child in this case, who was found battered in her crib and died as a result of massive abdominal and head injuries.

Next, defendant makes several assignments of error regarding the admission of evidence about his assaults and abuse of Rambeck. During the trial, Rambeck initially testified without objection that defendant physically abused her. Defendant objected for the first time when the prosecutor asked her about the circumstances that had caused an earlier separation between him and Rambeck. The trial court ruled that because defendant's theory was that Rambeck caused her daughter's death, the evidence was relevant to refute that theory, to explain her actions and to lay the foundation for testimony from a subsequent witness that Rambeck suffered from battered women syndrome (BWS). Later, other evidence was admitted over defendant's objection that corroborated Rambeck's testimony. That evidence is the subject of several other assignments of error. All of the evidence is admissible if the expert's testimony about BWS was properly admitted, so we turn to that issue.

First, the state contends that defendant has not preserved his argument on appeal regarding the BWS testimony because defendant did not specifically argue to the trial court that BWS is not a "scientific theory" under State v. Brown, 297 Or. 404, 687 P.2d 751 (1984). ¹ However, the state and defendant filed extensive memoranda in the trial court about whether BWS evidence should be admitted, and the holding in Brown was briefed by the parties and addressed by the trial court. In State v. Hitz, 307 Or. 183, 188, 766 P.2d 373 (1988), the court held that for purposes of preservation, the "raising" of an issue at trial is "essential," but "identifying" a particular source for a claimed position and making a particular argument are less essential. Defendant's presentation to the trial court suffices under Hitz to preserve the issue he now raises on appeal.

We then turn to the issue of whether, under Brown, testimony regarding BWS is admissible scientific evidence. ² The Brown test requires us to apply OEC 401, 702, and 403 and to

"identify and evaluate the probative value of the [proffered scientific] evidence, consider how [that evidence] might impair rather than help the factfinder, and decide whether truthfinding is better served by exclusion or admission." Brown, 297 Or. at 409, 687 P.2d 751.

Specifically, the factors to be considered are:

"(1) The technique's general acceptance in the field;

"(2) The expert's qualifications and stature;

"(3) The use which has been made of the technique;

"(4) The potential rate of error;

"(5) The existence of specialized literature;

"(6) The novelty of the invention; and

"(7) The extent to which the technique relies on the subjective interpretation of the expert." Brown, 297 Or. at 417, 687 P.2d 751.

Those factors are not intended to be exclusive nor to be considered as a mechanical checklist. Thus, what is necessary is not a lock-step analysis of each factor but the consideration of each factor in terms of the overall probative value of the proffered evidence. Id. at 417-18, 687 P.2d 751.

The state's pretrial offer of proof centered around Professor Karil Klingbeil's testimony. Klingbeil holds a bachelor's degree in sociology and psychology and received her master's degree in social work in 1960 from the University of Washington. She is employed at the University of Washington as an associate professor, teaches in the graduate school there and is also the director of social work at Harbor View Medical Center, a hospital affiliated with the university. Klingbeil instructs others in the areas of assessment, detection and recognition of violent behaviors, violent acts, battered women syndrome, child abuse syndrome and other components of interpersonal violence, including elder abuse. She has over 20 years of experience in clinical research and teaching in the field of interpersonal violence, which includes a number of components, including violence toward women.

In 1973, Klingbeil founded the Sexual Assault Center at Harbor View, which is a nationally recognized program that deals with victims of child sexual abuse, incest and adult victims of rape. She has also published a number of articles pertaining to the assessment and identification of battered women. Previously, she has been accepted as an expert witness in courts in the states of Washington, Alaska, Idaho and Montana.

In her pretrial testimony, Klingbeil testified that there is a significant amount of literature about BWS and the methodology of diagnosing a person with BWS. She also testified that when she diagnoses a person with BWS, she follows a method of evaluation that is accepted within the psychological community. That process of evaluation consists of a variety of steps in which the evaluator conducts a psychosocial interview and examines the subject's childhood, adolescence, adult life, family of origin, employment history and previous relationships during the person's adult life. It also includes consideration of the subject's education, health care records, shelter care records, history of substance abuse, and criminal justice records. Also, interviews of family, friends and other witnesses are conducted.

Klingbeil defines BWS as

"a psychological diagnosis that refers to a collection or pattern of characteristics coupled by abuse which may be physical, psychological, sexual, or social, or all of those kinds of abuse, occurring over a period of time, usually repeatedly.

" * * * * * " * * * [BWS] is often referred to as a subset of...