Opinion
A176701
12-13-2023
STATE OF OREGON, Plaintiff-Respondent, v. SHANE AARON AKINS, Defendant-Appellant.
Anne Kimiko Fujita Munsey, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services. Robert M. Wilsey, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).
Argued and submitted June 5, 2023.
Clackamas County Circuit Court 18CR78427; Todd L. Van Rysselberghe, Judge.
Anne Kimiko Fujita Munsey, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.
Robert M. Wilsey, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Shorr, Presiding Judge, and Mooney, Judge, and Pagán, Judge.
MOONEY, J.
Defendant appeals from a judgment of conviction after a jury found him guilty of two counts of first-degree sodomy and three counts of first-degree sexual abuse. He assigns error, first, to the trial court's denial of his motion in limine to exclude "[a]ny evidence regarding delayed reporting as it relates to child sexual abuse," arguing that the testimony was impermissible vouching, and, in three combined assignments of error, asserts that the trial court erred in admitting certain hearsay statements made by the victim. As we will explain, we affirm.
We review whether a witness's statement constitutes impermissible vouching for errors of law. State v. Sperou, 365 Or. 121, 128, 442 P.3d 581 (2019). Likewise, we review a trial court's decision to admit hearsay evidence under OEC 803(18a)(b) for errors of law. State v. Lamb, 161 Or.App. 66, 69, 983 P.2d 1058 (1999).
At trial, defendant sought to exclude the testimony of Jennifer Wheeler, a forensic interviewer employed by Child Abuse Response and Evaluation Services (CARES), arguing that the testimony constituted impermissible witness vouching. Specifically, defendant objected to Wheeler's testimony that delayed reporting by victims of sexual abuse is a typical phenomenon that is not indicative of fabricated allegations. Defendant also sought to exclude text messages and statements made by the victim, arguing that the OEC 803(18aXb) hearsay exception for child declarants does not apply when the declarant is an adult at the time of trial.
Defendant argues on appeal that the Supreme Court's decision in State v. Perry, 347 Or. 110, 218 P.3d 95 (2009), which held that expert testimony about delayed reporting is admissible to rebut a defense theory that the victim's delay in reporting indicates fabrication, does not apply when the defense does not advance that theory. But we rejected that argument in State v. White, 252 Or.App. 718, 288 P.3d 985 (2012), where we held that expert testimony about delayed reporting is admissible to counter a possible inference, made by the jury absent an explicit theory advanced by the defense, that the victim's delay in reporting indicates fabricated allegations. To the extent that defendant now argues that White was wrongly decided and distinguishable from this case, we reject those arguments.
In the alternative, defendant argues that Wheeler's testimony was nonetheless inadmissible because it was impermissible vouching. We disagree.
Experts may provide "not only general testimony about" the typical behavior of abuse victims, but also "testimony as to whether the particular complainant's conduct was consistent with that general [behavior]." State v. Remme, 173 Or.App. 546, 558, 23 P.3d 374 (2001) (emphasis in original). Expert testimony becomes impermissible vouching only when it is "either a direct comment * * * or tantamount to a direct comment on the credibility of a witness." State v. Beauvais, 357 Or. 524, 545, 354 P.3d 680 (2015).
Here, Wheeler's testimony made no assertion regarding the victim's credibility. Indeed, Wheeler did not discuss the victim in her testimony at all. Wheeler merely described the general principles of delayed reporting without offering an opinion as to whether the victim's behavior here matched with that description. Cf. State v. Middleton, 294 Or. 427, 433 n 6, 657 P.2d 1215 (1983) (holding that expert testimony that a victim's behavior was "very typical" was not vouching.) Nor did Wheeler indicate that such a delay was evidence that the abuse did occur or that the victim was credible. See State v. Brand, 301 Or.App. 59, 67, 455 P.3d 960 (2019), rev den, 366 Or. 259 (2020), (holding that a witness's testimony was impermissible vouching where it indicated that the victim delayed reporting out of fear, thereby signaling the witness's belief that the victim was truthful). And, contrary to defendant's assertion, the fact that the victim's circumstances closely mirrored the general principles Wheeler described did not indicate whether Wheeler did or did not believe the victim. Thus, the trial court did not err by denying defendant's motion to exclude that testimony.
In defendant's combined second, third, and fourth assignments of error, he asserts that out-of-court statements made by the victim when she was a minor were not admissible under OEC 803(18a)(b) because she was an adult at the time of trial. Defendant's argument is foreclosed by our decision in State v. Juarez-Hernandez, 316 Or.App. 741, 503 P.3d 487, rev den, 369 Or. 856 (2022), which rejected similar arguments. We therefore reject defendant's arguments here.
Affirmed.