As pertinent to our review, defendant was charged with, and convicted of, committing sex offenses against a girl and two women who are directly, or collaterally, related to his wife: (1) RW, his step-granddaughter; (2) E, an adult cousin of RW’s; and (3) RB, his adult step-daughter and RW’s mother. As explained more fully below, the only charge relating to RW was Count 4 (first-degree unlawful sexual penetration). Counts 1 (first-degree sodomy) and 5 (attempted first-degree sodomy) related to E and RB, respectively. We separately relate the predicate circumstances of those charges below in our consideration of the asserted plain error as to each. For narrative and analytical coherence, we begin with the alleged impermissible vouching for RW’s credibility.
1. Count 4: Admissibility of Muggia’s “Vouching” Testimony
At the time of the charged conduct, sometime during the summer of 2006, RW was 10 years old. RW and her older sister, S, were living with defendant and his wife, their maternal grandmother. According to RW, she awoke one morning to find defendant touching her genital area. That incident was not reported until May 18, 2007, when S disclosed it to a school counselor. That same day, S repeated the allegations to Child Protective Services child abuse investigator Valentina Muggia. Muggia, in turn, interviewed RW, who provided further details about the alleged abuse.
The state charged defendant with first-degree unlawful sexual penetration, ORS 163.411. Both RW and Muggia testified at trial. On direct examination, Muggia recounted RW’s statements and demeanor during the May 18, 2007, interview. Then, after referring to Muggia’s extensive training and experience interviewing child victims, the prosecutor and Muggia had the following exchange about that interview:
«Q. * * * [W]hat were the significant observations that you made in determining that there — there is a need for help here or intervention?
“A. Well, one is the — the specific amount of details that [RW] was able to disclose during the interviews. And then also her — her demeanor in how much this interview!] was affecting it and — and her anger that she had in expressing her feelings. Those were all collectively what led me to believe that indeed she had been molested.”
(Emphasis added.)
The italicized statement is the basis of defendant’s appellate assertion that Muggia impermissibly vouched for RW’s credibility. Defense counsel did not object to, or move to strike, that statement. Rather, on cross-examination, defense counsel revisited Muggia’s opinions as to RW’s believability:
“Q. Okay. And part of your investigation, is it to decide whether what’s being disclosed is true or not?
“A. I — I—part of my investigation is to determine whether I have enough evidence to say that child abuse has occurred.
“Q. Okay. And part of that evidence is to determine whether the — whether the child is telling the truth?
“A. I suppose so, yeah.
“Q. Okay. Well, you have to, I mean — okay. So you don’t care so much about whether they’re telling the truth if there’s evidence?
“A. I guess it’s in my experience if I founded the cases is because the child has been telling the truth.
“Q. Okay. So is it — have you investigated cases when child — children were not telling the truth?
“A. I — believe it or not, in my experience I only had two cases where the child was not talking — not saying the truth, and generally was because has been coached by a parent.
“Q. Okay. Or another person?
“A. Correct. So over 600-plus cases, I only had two.
“Q. So during your investigation process do you take precautions to make sure a child hasn’t been coached?
“A. Well, that’s part of the training that we received, yes.
“Q. Okay. So in this investigation did you take any steps to make sure no one was coaching her?
“A. Based on my experience, the way that the child disclosed, the amount of detail, and how she talked to me, she had not been coached.
“Q. Okay. Now, you said when you first talked to her she wanted to know what her sister had said.
A. Uh-huh.
“Q. Didn’t that throw up a flag for you?
A. No, not at all. A lot of children, you know, do that, especially if they’ve been talked to — you know, they talk to a sibling about abuse that has happened. Especially if it’s an older sibling, you know, they want to know that they are okay. They want to know that their sibling is okay. And so that’s actually very common.
“Q. Okay. So — but—so you don’t think that’s a flag at all, that one person — one child is trying to make sure they’re saying the same story as another child?
A. No. Not in this case.
“Q. Okay. Do you think that’s a mistake to do that?
“A. I — I don’t. I guess from my experience is that when a child has been coached, they’re not able to provide the details. They are very repetitive with the same answer. And so you can ask a different question, and the answer will be just the same. They’re very limited in what they can offer. And this was not the case for [RW].”
Thus, defense counsel’s questions not only invited Muggia to reiterate her previously expressed opinion about RW— but also called, repeatedly, for her to further develop and to defend that opinion.
During closing arguments, neither party mentioned Muggia’s assessment of RW’s believability. The state, in referring to Muggia’s testimony, focused on the content of the statements that RW made to Muggia but did not comment on Muggia’s assessment of the truthfulness of those statements.
On appeal, defendant argues that the trial court erred by failing to sua sponte exclude or strike Muggia’s statement that, based, in part, on RW’s statements, Muggia “believe [ed] that indeed she had been molested.” Defendant acknowledges that he failed to raise that issue before the trial court, but argues that the admission of that statement constitutes an “error of law apparent on the record,” ORAP 5.45(1), and that we should exercise our discretion under Ailes to correct it.
Generally, we will not consider an unpreserved issue on appeal. State v. Wyatt,
If those requirements are satisfied, we must then decide whether we should exercise our discretion to correct the error, based on the totality of the circumstances. See Ailes,
“the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court’s attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way.”
Id. at 382 n 6.
Under the first and second Brown plain error requisites, the operative question must be legal and its correct resolution must not be reasonably in dispute. In those respects, defendant argues — and the state concedes — that the statement italicized above constituted impermissible “vouching” under State v. Middleton,
The state remonstrates, however, that the asserted error is not plain because it does not comport with the third Brown requisite — that is, that it is not “apparent on the face of the record” because we must “choose between competing inferences” to reach it. According to the state’s theory, defense counsel’s cross-examination of Muggia supports a plausible inference that there was a conscious tactical choice not to move to strike Muggia’s comment (as opposed to not making a conscious choice at all, for whatever reason)— and, therefore, that the error is not “apparent” because we must “choose between competing inferences” to reach it. See State v. Lovern,
We need not resolve that matter. Even assuming, without deciding, that the trial court’s failure to sua sponte exclude Muggia’s statement constituted plain error, we would not, in any event, exercise our Ailes discretion primarily because, in these circumstances, any error was harmless. See State v. Matheson,
In many cases where credibility is critical to the outcome, even a single “vouching” statement by a witness like Muggia, with years of experience and training in the field of child abuse prevention, can be given considerable weight by the jury. See State v. Bahmatov,
2. Counts 1 and 5: Jury Instructions on Forcible Compulsion
As noted briefly above, defendant also contends that the trial court committed reversible plain error by failing to instruct the jury as to the requisite mental state for forcible compulsion with respect to Count 1 (first-degree sodomy, involving E) and Count 5 (attempted first-degree sodomy, involving RB). Defendant’s contention, as amplified below, is predicated on State v. Nelson,
For the reasons that follow, we conclude that, with respect to Count 1, the failure to instruct on the requisite mental state as to forcible compulsion constituted plain error, but we decline to exercise our Ailes discretion to correct that error. With respect to Count 5, we conclude that, in the circumstances here, involving an extension of Nelson to an attempt crime, the correctness of such an extension is subject to reasonable dispute, precluding plain error review. Brown,
We begin with the predicate circumstances of Count 1, pertaining to E. E, who was then 25 years old, has spastic diplegia, a form of cerebral palsy, and uses a wheelchair. She alleged that defendant sexually assaulted her on several occasions, including in March 2011, when he came to her residence, ostensibly to help her with household chores, and proceeded to grope her and ask her to give him oral sex. According to E, after she declined, defendant grabbed the back of her head with his hands and forcibly put his penis in her mouth and proceeded to force oral sex for several minutes.
Based on those allegations, the state charged defendant with first-degree sodomy, alleging that he “did *** knowingly, by forcible compulsion, cause [E] to engage in deviate sexual intercourse with *** defendant (defendant forcing [E] to give him oral sex - [E’s] mouth to defendant’s penis).”
At trial, E testified as described above. She also testified that defendant’s sexual advances were predatory and unwanted, and denied ever having any kind of consensual sexual or romantic relationship or encounter
As material to our review, the trial court instructed the jury as follows:
“Sodomy in the first degree, Count 1. Oregon law provides that a person commits the crime of sodomy in the first degree if the person knowingly engages in deviate sexual intercourse with another person and if the victim is subjected to forcible compulsion by the defendant.
“In this case, to establish the crime of sodomy in the first degree, the State must prove beyond a reasonable doubt the following four elements:
«* * * * *
“3. [Defendant] knowingly had deviate sexual intercourse with [E].
“4. [E] was subjected to forcible compulsion by the defendant.”
The jury found defendant guilty on all charges, including Count 1 as well as two other charges involving E.
As noted, on appeal, defendant asserts that, given Gray and its progeny, the trial court plainly erred by failing to instruct the jury as to the requisite culpable mental state with respect to the element of forcible compulsion on Count 1. For the reasons that follow, we agree with defendant that the asserted instructional error was plain error, but we decline to exercise our Ailes discretion.
Under our holdings in Gray,
Defendant contends that we should exercise our Ailes discretion to remedy that error. In that regard, defendant asserts that such correction would further “the ends of justice,” Ailes,
We conclude, however, that an exercise of discretion is not appropriate in this instance, because, in the totality of the circumstances, the failure to give the Nelson.-prescribed instruction was unlikely to have affected the verdict. By way of informative distinction, it is useful to contrast the circumstances in this case — specifically, the nature of the evidence and of the defense — with those in Gray, where our exercise of Ailes discretion rested largely on our conclusion that the absence of a Nelson instruction was not harmless.
In Gray, the evidence and the defense theory of the case put the defendant’s mental state with respect to forcible compulsion squarely at issue. There, at the time of the rape and first-degree sex abuse, the defendant and the complainant, A, were living together as a married couple. Although each testified to “drastically different versions of the encounter that precipitated the charges,”
“[E]ven if the jury believed A’s versions of the events (which, as defendant points out, is questionable given the mixed verdict), a reasonable juror might have doubted whether defendant knew that he had subjected A to forcible compulsion, particularly given A’s testimony that she had, on previous occasions, allowed defendant to pull her hair and put his hands on her neck. Therefore, the absence of a specific instruction with respect to defendant’s mental state cannot be said to have had little likelihood to have affected the verdicts.”
Id. at 131 (internal quotation marks omitted).
Here, in contrast, there was no evidentiary basis from which the jury could find that defendant, in engaging in the charged conduct, subjected E to forcible compulsion but not find that defendant did so knowingly. In E’s account — which the jury necessarily credited in finding forcible compulsion — after she had declined to give defendant oral sex, he grabbed her by the back of her head and forced his penis into her mouth. Unlike in Gray, nothing in the parties’ history suggested that such conduct had "previously been accepted sexual behavior” from which defendant might, plausibly, have not known that he was subjecting E to forcible compulsion. The asserted plain error was harmless. See State v. Digesti,
We therefore decline to exercise our Ailes discretion to correct the error. Accordingly, defendant’s conviction on Count 1 is affirmed.
We turn, finally, to defendant’s contention that the trial court concomitantly erred in its instructions on the attempted first-degree sodomy charge (Count 5), ORS 161.405(1) and ORS 163.405(1).
However, we have never addressed the propriety of extending Nelson’s analysis into the context of an attempted sexual crime. It is unclear whether, or how, Nelson’s instructional requirement would apply to such crimes, which are dissimilar from completed crimes with respect to the elements of the state’s proof. See State v. Walters,
Affirmed.
Notes
Defendant raises three separate assignments of error relating to alleged “plain error” in the admission of “vouching” testimony by three different witnesses as to Count 4. We address only the first of those statements; the latter two statements do not warrant published discussion.
We further reject, without published discussion, defendant’s fourth assignment of error, challenging the denial of his motion to sever the trial of counts pertaining to the different victims.
Defendant does not contend that counsel’s questions of Muggia on cross-examination were merely a “repair effort” — derivative of, and necessitated by, Muggia’s vouching testimony on direct examination. Accord State v. Hollywood,
“A person who engages in deviate sexual intercourse with another person or causes another to engage in deviate sexual intercourse commits the crime of sodomy in the first degree if *** [t]he victim is subjected to forcible compulsion by the actor.” ORS 163.405(1).
ORS 161.405(1) provides that “[a] person is guilty of an attempt to commit a crime when the person intentionally engages in conduct which constitutes a substantial step toward commission of the crime.” For ORS 163.405(1), establishing the crime of first-degree sodomy, see
With respect to Count 5, the trial court instructed the jury that “a person commits the crime of attempted sodomy in the first degree if the person intentionally attempts to engage in deviate sexual intercourse with another person and if the victim is subjected to forcible compulsion by the defendant.” Further, and in pertinent part, the jury was instructed that the state was required to prove that “[defendant] intentionally attempted to have deviate sexual intercourse with [RB]” and that “[RB] was subjected to forcible compulsion by the defendant.”
As with Count 1, there was no instruction as to defendant’s mental state with respect to forcible compulsion, and defendant did not propose additional instructions or take exception to those instructions.