State v. Thomas
| Decision Date | 22 June 2016 |
| Docket Number | A156080 |
| Citation | 279 Or.App. 98,379 P.3d 731 |
| Parties | State of Oregon, Plaintiff–Respondent, v. Shaun Patrick Thomas, Defendant–Appellant. |
| Court | Oregon Court of Appeals |
279 Or.App. 98
379 P.3d 731
State of Oregon, Plaintiff–Respondent,
v.
Shaun Patrick Thomas, Defendant–Appellant.
A156080
Court of Appeals of Oregon.
Argued and submitted September 29, 2015.
June 22, 2016
Erica Herb, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Doug M. Petrina, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Duncan, Presiding Judge, and DeVore, Judge, and Flynn, Judge.
DEVORE, J.
Defendant appeals a judgment convicting him of four counts of sodomy in the first degree, ORS 163.405, and four counts of sexual abuse in the first degree, ORS 163.427. As to the first two assignments of error, we conclude, for different reasons, that the court did not err in limiting the testimony of defendant's experts. We reject defendant's third and fourth assignments of error without discussion. And, we affirm.
Defendant first assigns error to the trial court's limitation on testimony from a professor of psychology about research studies involving children's memories of a medical procedure requiring the manipulation of their genitalia. The trial court ruled that the details of the studies were inadmissible hearsay and excluded them on that basis. We affirm that ruling, for the reasons that will follow.
Defendant next assigns error to the court's limitation on the testimony of a clinical psychologist who reviewed an agency's interview with the victim, opined that the interview was conducted appropriately, but would have faulted the agency's investigator for lack of follow up, suggesting that the interviewer may have been biased in favor of the victim's mother. The trial court, recognizing that the agency investigator freely admitted the lack of follow up on cross-examination, disallowed as irrelevant the psychologist's testimony about the lack of follow up. We affirm the ruling but for a different reason.
FACTS
We summarize the facts leading to defendant's conviction consistently with the jury's verdict. State v. Nistler , 268 Or.App. 470, 472, 342 P.3d 1035, rev. den. ,
357 Or. 551, 357 P.3d 504 (2015). Defendant was convicted for sexual contact with his nephew, ZM, beginning some time after the child was seven or eight years old. Defendant is the brother of ZM's mother, Crosby. Defendant lived with Crosby off and on throughout most of ZM's childhood—in time periods ranging from one night to six months. When defendant was not staying with Crosby, he lived out of a backpack and carried a sleeping bag
and items he needed on the road. When defendant stayed with Crosby, he frequently watched ZM and ZM's siblings.
ZM's parents, Crosby and Marin, separated. When ZM was 14 years old and was staying with Marin, ZM revealed to Marin that defendant had sexually abused him. Marin told Crosby. When Crosby asked, ZM told Crosby that defendant had been inappropriate with him. Crosby contacted the police. Her report prompted an evaluation by the Amani Center, a child abuse assessment center. During an interview, ZM repeated that defendant had sexually abused him.
At trial, ZM testified that he did not remember how old he was when defendant began to sexually abuse him. He testified that the abuse happened “[a]lmost anywhere,” but often it would occur when defendant forced him to get into defendant's sleeping bag. ZM recounted that defendant would touch ZM's penis and force ZM to touch defendant's penis. ZM said that defendant would often hold ZM down, while ZM fought to get up, and place his penis inside ZM's bottom. ZM estimated that defendant touched ZM's penis at least four times and “held [him] down and pushed his penis inside of [ZM's] bottom” at least three times. ZM did not remember all of the details of the abuse, such as the location of each incident, but he testified that the abuse happened “[t]oo often” when he was a child. ZM did not remember when defendant stopped sexually abusing him. ZM was afraid to tell anyone about the abuse because defendant had threatened him.
ZM's sisters, CM and JK, testified that, while they were growing up, defendant frequently watched the children. The sisters remembered defendant separating ZM from the girls for “punishment,” leaving defendant alone with ZM. JK testified that on one occasion, defendant sent the girls to their room, and she heard ZM crying. JK left the room to see why ZM was crying and saw ZM with defendant in defendant's sleeping bag. Defendant saw her and yelled at her to get back in the room and close the door.
At trial, the defense's theory of the case was that ZM's parents had biased him and had planted a false memory of defendant abusing him. To that end, defendant offered
evidence that Marin was a poor father figure, often used drugs in front of the children, and shared pornography with his son when he was 12 years old. Marin and defendant did not get along well, and when they disagreed, Marin called defendant derogatory names that referred to his sexual orientation.
The defense contended that the Amani Center, the agency that had investigated the abuse allegation, was biased against defendant and biased in favor of Crosby. The contention, in defendant's view, was supported by the failure of the agency to investigate the mother when ZM remarked, during the interview, that Crosby was physically abusive to him on a few occasions. The investigator had doubted the validity of ZM's remarks.
EVIDENCE FROM STUDIES
As noted, defendant first assigns error to a limitation on the testimony of his first expert. Defendant offered testimony from Dr. Daniel Reisberg, a professor of psychology, in order to show “how false memories are created” and how “traumatic events are memorialized and remembered.” The state filed a motion in limine to restrict that testimony and requested a Rule 104 hearing to determine admissibility. At the Rule 104 hearing, Reisberg testified that his expertise included the “science of the way traumatic events are remembered in children.” He was asked whether there have been studies about the way traumatic events are remembered, and he answered affirmatively, describing the ways that memory is studied.
After identifying studies generally, including studies on how children remember trips to the emergency room, Reisberg testified that “[a] number of people have studied childrens' memories for what I think may be most useful for the court, medical procedures in which the child has had his or her genitals closely examined and manipulated.” Defendant's counsel then asked Reisberg to “tell the court more about that last area of study, the medical procedures, sort of the studies that you're familiar with and the way—more of the details about the way they were conducted.” Reisberg explained that there were “five or six or seven studies that have specifically examined cases in which children
had to undergo, for medical reasons, a procedure called a voiding cystourethrogram [VCUG].” In the course of the VCUG procedure, a dye is injected through a child's urethra into the bladder, which is then x-rayed. Reisberg described the procedure as
“involv[ing] the child being stripped naked, exposing his or her genitals to a crowd of three or four or five strangers * * * all of whom are intently staring at the child's genitals, a medical professional manipulating the child's genitals and inserting a small tube into them, injecting fluid.”
Reisberg testified that researchers later interviewed a group of children who had undergone the procedure, and they found that, with the exception of children under the age of three, children tend to remember the procedure “extremely well,” including specific details of “the sequence of events, * * * roughly how many people were in the room, * * * how they had to disrobe, * * * specific instructions that they were given, [and] * * * what hospital they were taken to.”
In seeking to limit Reisberg's testimony, the state contended that he could rely on the VCUG study to form an opinion but that “it doesn't mean that that's a fact or vehicle to get all of the [inadmissible] hearsay in before the jury.” Defendant disagreed, reasoning that OEC 703 “allows Dr. Reisberg to talk about otherwise inadmissible hearsay, including the data and the specific method of the VCUG studies.”
The trial court agreed with the state, questioning the “importance of going into the details of the specific study,” considering that Reisberg was offering an opinion on the memory of trauma generally and was not offering an opinion about ZM's memory of the alleged abuse.1 The court ruled that Reisberg could not “specifically discuss the medical procedure of the genital inspection. He can just generally indicate that there are intrusive medical procedures that children have been—have received that resulted
...To continue reading
Request your trial