State v. Wyatt

• Decision Date: 15 July 1998
• Citation: 155 Or.App. 192,962 P.2d 780
• Court: Oregon Court of Appeals
• Parties: STATE of Oregon, Respondent, v. Ralph Adrian WYATT, Appellant. CR9501237; CA A95425.

Page 780

962 P.2d 780

155 Or.App. 192

STATE of Oregon, Respondent, v. Ralph Adrian WYATT, Appellant.

CR9501237; CA A95425.

Court of Appeals of Oregon.

Argued and Submitted on March 31, 1998.

Decided July 15, 1998.

Ronald H. Hoevet argued the cause for appellant. With him on the brief was Hoevet & Snyder, P. C., Portland.

Ann Kelley, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before De MUNIZ, P.J., and HASELTON and ARMSTRONG, JJ.

HASELTON, Judge.

Defendant appeals from his convictions for rape in the first degree, ORS 163.375, sexual abuse in the first degree, ORS 163.427, and delivery of a controlled substance to a minor, ORS 475.995. He asserts, in part, that the trial court erred in precluding the testimony of a defense expert witness, Grimsbo, as a sanction for an alleged violation of the reciprocal criminal discovery statutes, ORS 135.835 and ORS 135.845, without adequately considering the prejudice to the state from the alleged violation and the availability of less onerous alternatives. We agree that the trial court erred in not assessing the availability of less onerous alternatives and conclude that that error was not harmless. Accordingly, we reverse and remand for a new trial.

Defendant's convictions all arise from his alleged conduct toward his stepdaughter on the evening and early morning of July 23-24, 1995. The preclusion of Grimsbo's testimony occurred during defendant's second trial, in July 1996; the first trial, in March and April 1996, ended with a hung jury. Although the parties obviously dispute whether defendant engaged in the alleged criminal conduct, the circumstances of the court's preclusion of Grimsbo's testimony are largely uncontroverted.

Defendant married the complainant's mother, Carol Wyatt, in August 1990 and moved into the house that Wyatt shared with complainant and two other children from a previous marriage. The marriage was unstable, primarily because of disagreements over financial matters, and, by the spring and summer of 1995, they were discussing divorce. On occasion, their domestic disputes became violent. ¹

On July 23, 1995, complainant was nine years old. Because complainant had not been able to go camping with her brothers earlier in the summer, she wanted to camp out in the front yard with defendant, and Wyatt agreed. At about 10:00 that night, defendant and complainant went out to a pup tent they had pitched and roasted marshmallows and talked. After complainant went to sleep, she awoke twice, and defendant gave her at least one pill on each occasion. The parties dispute the nature of those pills; defendant testified that they consisted of a nonprescription herbal sleep aid called "Silent Night"; the state asserted that defendant gave complainant a much more powerful narcotic.

The next morning, July 24, defendant left for work at around 7:00. By that time, complainant was back in her bed in the house. At around 9:00, defendant called the house and talked to one of his stepsons; at that time complainant was still asleep. About an hour later, at around 10:00, Wyatt called defendant at work, told him that complainant had been drugged and probably raped, and either accused defendant, or asked him, whether he had raped complainant. ²

Complainant's pediatrician, Dr. Joan Sage, examined her at 2:00 on the afternoon of the 24th. ³ Sage examined complainant and noted bleeding and irritation in the vaginal area and "almost non-existent hymenal tissues." Consequently, Sage referred complainant to Dr. Leila Keltner at the CARES ⁴ program at Emanuel Hospital for an emergency examination. When complainant arrived at the hospital she was throwing up, her coordination and vision were impaired, and her responses were very slow.

Keltner spoke with Wyatt, who told her that complainant had slept outside with defendant; that complainant had been very sleepy that morning; that complainant had complained of pain; and that she had found blood in the underpants that complainant had been wearing while camping the night before. Wyatt, who had placed the underpants in a bag, gave them to Keltner.

Keltner conducted an examination and determined that complainant had sustained acute trauma with lacerations, bleeding, and bruising of the hymen and that those injuries could be "very consistent with multiple episodes of penetration" occurring over a short period of time. Keltner also used a rape kit to collect swabs and arranged for a urine toxicology screen, which showed the presence of morphine, codeine, oxycodene, and acetaminophen.

Keltner asked complainant whether anyone had touched her genital area, and complainant responded that, while she and defendant had been camping and he thought she was sleeping, he had placed his hand over that area. At that time, complainant had been completely clothed. Complainant also said that twice during the night defendant had given her pills that had made her feel sleepy and that he had told her not to tell her mother.

After the examination, Keltner turned complainant's underwear over to a Clackamas County sheriff's deputy. Deputies later seized two sleeping bags, one from defendant's car and the other from the laundry room of the family home. Testing revealed no sperm, seminal fluid, or blood on the sleeping bags and no sperm, seminal fluid, or pubic hairs on the swabs of complainant's vagina. There was no seminal fluid on the complainant's underpants, but there were a small number of sperm ⁵ and some epithelial cells ⁶ in the crotch of the underpants. It is uncontroverted that the sperm found on the underpants were defendant's.

It is, thus, uncontroverted that: (a) The drug screen of complainant's urine revealed the presence of narcotic substances not found in "Silent Night"; (b) complainant's vagina had been subjected to multiple penetrations, with injuries that were consistent with penetration of a penis or penis-like object; and (c) there was blood and defendant's sperm on complainant's underpants. The central dispute--the dispositive dispute on which both of defendant's two trials depended--is whether defendant perpetrated those crimes, or whether Wyatt, motivated by a desire to prevent defendant from recovering anything in the impending divorce, "framed" defendant by staging the crime.

Defendant was first tried in March and April 1996. The state's theory was straightforward: Defendant had drugged complainant and then raped her. As support for that theory, the state relied substantially, albeit not exclusively, on complainant's, Wyatt's, and Keltner's testimony, as well as that of forensic experts, Kevin Humphries of the Oregon State Police Crime Lab, who tested and analyzed the sleeping bag, underpants, and swabs, and Susan Hormann, a specialist in serology and DNA testing at the OSP Crime Lab. Complainant had no memory of a rape and, with a few variations, generally reiterated the account she had given to Keltner and to law enforcement personnel. Wyatt testified that she had great difficulty rousing complainant on the morning of the 24th, that complainant had obviously been drugged, and that, when she took off complainant's underwear, she saw blood on the underpants. Wyatt also testified that, when she subsequently called defendant and told him that complainant had been drugged and probably raped, he responded, "You'll never be able to prove that I did it. You won't find any sperm." ⁷

Humphries testified as to his findings and explained that it was not unusual for swabs to test negative for the presence of seminal fluid, especially if blood is present. Humphries also stated that the small number of sperm on complainant's underpants was explainable in that such findings are not unusual in cases involving children. Hormann, in the first trial, testified that the " 'sperm fraction' from the panty crotch was consistent with the sperm from [defendant] and * * * carry-over epithelial cells consistent with [complainant]." Hormann did not explicitly exclude the possibility that the epithelial cells could have come from Wyatt's body. ⁸

Defendant's theory throughout was that Wyatt had staged the crime. In particular, defendant testified that, on the evening of July 23, before he and complainant camped out, he and Wyatt had engaged in sexual intercourse. ⁹ The defense asserted that, motivated by greed and hatred, Wyatt, a registered nurse, had "framed" defendant by drugging complainant after she came back inside the house on the morning of the 24th, assaulted complainant with a blunt object, and then applied the sperm she had saved from the night before to complainant's underpants. The defense emphasized the animosity between Wyatt and defendant, their disagreements over finances, Wyatt's alleged "looting" of the joint account, the lack of any prior sexual advances or contact between defendant and complainant, the absence of any blood, seminal fluid, or sperm on the sleeping bag, the absence of seminal fluid, sperm, or pubic hair on the vaginal swabs, and the absence of seminal fluid on the underpants. In closing argument, defense counsel repeatedly alluded to the "transferred sperm" hypothesis.

The jury in the first trial could not reach a verdict after four days of deliberations. Defendant was retried in July 1996. In early May 1996, in anticipation of the retrial, the state's DNA expert, Hormann, prepared a report that specifically addressed the "transferred sperm" hypothesis and, particularly, determined that, based on DNA typing, the epithelial cells found on complainant's underpants could not be Wyatt's. The implication of Hormann's report was that the sperm could not have been transferred from Wyatt's body. The state promptly provided Hormann's report to defense counsel. Defense counsel requested Hormann's handwritten notes, which underlay her report, and the state provided those materials shortly...