State v. Wilson
| Decision Date | 22 October 2014 |
| Docket Number | C110595CR,A150479. |
| Citation | 266 Or.App. 481,337 P.3d 990 |
| Court | Oregon Court of Appeals |
| Parties | STATE of Oregon, Plaintiff–Respondent, v. Joshua Brett WILSON, Defendant–Appellant. |
Andy Simrin argued the cause for appellant. With him on the briefs was Andy Simrin PC.
Tiffany Keast, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and HADLOCK, Judge.
Defendant appeals a judgment convicting him of second-degree rape, ORS 163.365 ; two counts of first-degree sexual abuse, ORS 163.427 ; three counts of unlawful delivery of marijuana to a minor, ORS 475.860(4)(a) ; and three counts of unlawful delivery of marijuana within 1,000 feet of a school, ORS 475.862. The evidence at trial was that defendant sexually abused L, his 13–year–old niece, after smoking marijuana with her. Defendant raises five assignments of error on appeal. We reject, without further discussion, defendant's third, fourth, and fifth assignments of error, and write only to address his first and second assignments. In those assignments of error, defendant contends that the trial court plainly erred in failing to strike, as impermissible vouching, the testimony of two witnesses that L's upset demeanor and crying when recounting the sexual abuse to them was “not fake.” We conclude that any error was not plain and, accordingly, affirm.
Because defendant was convicted, we summarize the relevant facts in the light most favorable to the state. State v. Barboe, 253 Or.App. 367, 369, 290 P.3d 833 (2012), rev. den., 353 Or. 714, 303 P.3d 943 (2013). In early 2009, L, who was then 13 years old, lived with her father, his fiancée (Bornman), and Bornman's daughter, M, who is the same age as L. Defendant was L's uncle; he was married to the sister of L's father. At that time, defendant lived with his wife and their three children in an apartment in Beaverton, located within 1,000 feet of a school. L was close to defendant and his family, having stayed with them on a number of occasions before her father became involved with Bornman in 2008.
By early 2009, L was sexually active and a marijuana user. Her father and Bornman were reluctant to leave L unattended when they were away from home. In March 2009, during L's spring break, father and Bornman sent L to stay at defendant's apartment while they were at work. L's father and Bornman did not know, as L later testified, that L had smoked marijuana with defendant at his apartment four or five times before then.
One morning, during the spring break stay, defendant invited L to smoke marijuana with him in his bedroom.
L did so and became intoxicated. L testified that defendant then “started grabbing me really rough * * * pushed me on the bed * * * [was] massaging me really, really rough * * * [and] grabbing my shoulders and my butt.” Defendant took L's clothes off and then had sexual intercourse with her.
L later disclosed the sexual abuse to M, two other friends, and her boyfriend, Fuller. She told her father and Bornman about the abuse in October 2010. That disclosure was precipitated by another stay with defendant and his family (who by then had moved to L's paternal grandfather's house) during a weekend trip by father and Bornman. Before that trip and on their return, L complained about not being able to stay at home, but instead having to stay with defendant. According to Bornman's trial testimony, L appeared to be genuinely upset when Bornman and father returned from the trip. Bornman asked L what was wrong, and L disclosed and described the abuse by defendant. L then told her father about the abuse. That same day, L, her father, and Bornman went to the City of Tigard police station, where L reported the abuse to Officer Rivera. Rivera referred the matter to the Washington County Sheriff's Department, where it was investigated by Detective Rookhuyzen. Defendant was indicted for the crimes in March 2011, and the case went to trial in July of that year. During the trial, a number of witnesses described L's recounting of the sexual abuse and her demeanor while doing so, including (in order of testimony) Rivera, Rookhuyzen, Bornman, M, Fuller, and L's father. The demeanor testimony at issue was solicited by both the prosecution and the defense. Later in the trial, defense counsel asked defendant's daughter and wife about L's demeanor in family gatherings that occurred between March 2009 and October 2010.
Under questioning by the prosecutor, Rivera testified about L's emotional state during his interview of her, the same day L disclosed the sexual abuse to Bornman:
Next up, Rookhuyzen spoke of interviewing L that evening. He testified that, under his direction, L had recorded a “pretext [telephone] call” to defendant at that time. The prosecutor asked whether, during the call, L “was nervous or was calm or do you remember anything about how she appeared to you, her demeanor?” Rookhuyzen responded, “She seemed pretty calm.”
Bornman then testified that, upon father's and her return from a weekend trip in October 2010, L told Bornman about the sexual abuse by defendant following their use of marijuana. The prosecutor then asked about L's demeanor when she spoke with Bornman:
Defense counsel then cross-examined Bornman about “crying and fake crying” during L's conversations with Bornman and L's father:
Bornman's daughter, M, then testified that L disclosed the sexual abuse to her in 2009. When asked by the prosecutor whether L seemed “happy or sad or upset or what,” M replied that, “She just seemed kind of nervous and scared and just really upset.” Fuller, the next witness, testified that L told him about the abuse in the fall of 2010, “So she finally after—she was getting teary eyed, and it was hard for her to say it, but finally she was able to come out with it, and she told me what happened.” The prosecutor then asked Fuller about L's demeanor:
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