Defendant appeals from his conviction for sodomy in the first degree. ORS 163.405(b). He assigns error to the trial court’s refusal to grant his motion for change of venue and to three evidentiary rulings made at trial. The trial court did not abuse its discretion in refusing to grant defendant’s motion for change of venue and, if the court erred in making one of the evidentiary rulings, that error does not require reversal. Accordingly, we affirm.
Defendant owned and operated a preschool in Rose-burg. His wife operated a separate private kindergarten in Roseburg, and his son operated another private preschool in Winston. In 1983, defendant’s son was arrested on a sex crime charge. In 1987, defendant was indicted in this case for sexually assaulting a young boy who was a student at his preschool, and his son was indicted on six separate charges for sexually assaulting six other preschool students. Defendant’s son was tried in December, 1987, and found guilty of three of the six charges against him. In February, 1988, defendant and his wife were indicted on new charges for sexually assaulting another child. All of those events were highly publicized in Roseburg, where defendant’s trial was to be held.
Defendant’s first assignment is that the trial court should have granted his motion for change of venue, because the publicity precluded a fair and impartial trial. The trial court allowed counsel to submit a written questionnaire to each of the 60 members of the jury panel, which they filled out at the beginning of the trial. Thereafter, each of them was questioned individually. Twenty of the original 60 prospective jurors were excused for cause. Fourteen prospective jurors had not heard of the other criminal charges against defendant, his son and his wife. Only 13 of those had heard nothing of the charges against the
In
State v. Schroeder,
Defendant’s next contention is that the court erred when it overruled his objection to testimony by the state’s expert witness, a psychologist, that the single most specific symptom of a sexually-abused child is that the child engages in sexual activity with another child. Defendant’s objection, made after the first question had been answered, was “to any discussion of what he claims are symptoms.” The objection was overruled. The next question, calling for an explanation, was answered before defendant requested a continuing objection to any reference to “symptoms.” In response, the trial court instructed the prosecution that it should use the word “characteristic,” rather than the word “symptom.” Defendant did not object to the further questions asking whether certain behavior exhibited by the child was characteristic of a sexually-abused child, but asked for an instruction that the jury disregard the answer to the question to which he objected. Although the cumulative evidence of “characteristics” would probably be inadmissible under
State v. Hansen,
Defendant’s third assignment is that the trial court erred in sustaining the state’s objection to defendant’s question on re-direct examination of defendant’s expert, also a psychologist, asking him why defendant flew to Minnesota to see him. On cross-examination, the prosecution had impeached the. expert’s credibility by showing that he was being paid by defendant and that he had met in private with defendant in Minnesota, where the expert resides. On re-direct, after sustaining the objection, the court allowed the expert to testify that defendant had gone to Minnesota to submit to psychological testing, but did not allow him to testify to the results or that, as a matter of practice, he will not testify as an expert for a defendant who has not passed his psychological tests or if he is not satisfied that the person did not commit the crime.
During the direct examination of the psychologist, the trial court ruled inadmissible, under
State v. Hansen, supra,
Defendant’s final contention is that the court erred in overruling his objection to the statement by the state’s psychologist that children who have been sexually abused will very often not report the incident because they have been threatened by the abuser. Such testimony is admissible under
State v. Middleton,
Affirmed.
