State v. Eladem

290 Or.App. 212

414 P.3d 426

STATE of Oregon, Plaintiff-Respondent,

v.Hilmi Hammad ELADEM, Defendant-Appellant.

A157730

Court of Appeals of Oregon.

Argued and submitted June 21, 2016.

February 14, 2018

Mary M. Reese, Deputy Public Defender, Salem, argued the cause for appellant. With her on the opening brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services. Hilmi Hammad Eladem filed the supplemental brief pro se.

Susan G. Howe, Assistant Attorney General, Portland, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

ORTEGA, P. J.

Defendant appeals a judgment of conviction for five counts of first-degree sexual abuse, ORS 163.427 ; seven counts of first-degree sodomy, ORS 163.405 ; one count of first-degree unlawful sexual penetration, ORS 163.411 ; and one count of first degree rape, ORS 163.375. In his first assignment of error, he challenges his conviction for first-degree rape, arguing that the trial court erred by not dismissing that count as time-barred. In his second and third assignments of error, he challenges his convictions on three counts of first-degree sexual abuse, asserting that the trial court plainly erred by not sua sponte acquitting him of those counts and by instead entering convictions on them. We reject defendant's second and third assignments without written discussion, and write to address the statute of limitations issue presented in his first assignment.¹ Ultimately, we conclude that information that was transmitted to the Department of Human Services (DHS) and a local police department 13 years before defendant was indicted was insufficient to trigger the statute of limitations for first-degree rape. Accordingly, we affirm.

Defendant's first assignment of error raises the issue of whether the statute of limitations in ORS 131.125(2) (2013), amended by Or. Laws 2015, ch. 417, § 1; Or. Laws 2016, ch. 120, § 1² was triggered when the eight-year-old victim told a playmate, C, in 2000 that defendant "rapes" her or "was raping" her, and C's foster mother reported that information to DHS and local police. ORS 131.125(2)(a) provides that a prosecution for first-degree rape

"may be commenced within six years after the commission of the crime or, if the victim at the time of the crime was under 18 years of age, anytime before the victim attains 30 years of age or within 12 years after the offense is reported to a law enforcement agency or the Department of Human Services, whichever occurs first[.]"

Defendant claims that, for the purposes of ORS 131.125(2), the events that occurred in 2000 constitute a "report" of first-degree rape to DHS and the local police, which triggered the running of the statute of limitations. He further argues that, because the report occurred more than 12 years before he was indicted for first-degree rape, the trial court erred by not dismissing that count as time barred.

For purposes of defendant's motion to dismiss the first-degree rape count, the parties stipulated to the following facts. Defendant began dating the victim's mother in 1996, and at times he lived in the victim's home. In October 2000, the foster mother of C called DHS to report that the victim had told C that defendant "rapes her." C had explained to her foster mother that defendant had invited C and the victim into the victim's house to play, but the victim told her that she did not want to go into the house without her older brother because defendant "rapes her." Neither C nor her foster mother asked the victim what she meant by that statement. After receiving the call, DHS contacted the local police department. The next day, a DHS caseworker and a police officer contacted the victim, who was then eight years old, at her school. When asked about defendant, the victim said that defendant "has never done anything to her that she did not like" and denied telling anyone that he had touched her in an inappropriate way. When the DHS caseworker told the victim that someone had contacted DHS and stated that they had heard her say that she was being inappropriately touched by defendant, the victim responded that she had never said anything like that to anyone and did not know why someone would report that. The DHS caseworker met with the victim's mother and told her about the allegations. The victim's mother was "shocked," but expressed that she had no knowledge of any wrongdoing by defendant. Because the victim denied the abuse, the DHS caseworker closed the case as "unfounded."

Thirteen years later, the victim disclosed to her father that defendant had sexually abused her over a period of at least four years. In December 2013, defendant was indicted for numerous sex offenses. As relevant to this appeal, the indictment alleged that defendant committed first-degree rape against the victim "on or between January 1, 1996 and December 31, 2000," when the victim was between three and eight years old. Before trial, defendant moved to dismiss the first-degree rape count, asserting his statute of limitations argument. The trial court denied the motion. The jury found defendant guilty of 14 counts, including the first-degree rape count at issue on appeal.³

On appeal, defendant renews his argument that the victim's statement to her playmate, which was related to DHS and the police, was a "report" for purposes of ORS 131.125(2) sufficient to trigger the statute of limitations. In defendant's view, the report "communicated facts that form the basis for a particular offense: rape." Defendant further asserts that the statute of limitations was triggered even though the victim herself denied any sexual activity by defendant when questioned by DHS and the police because it was enough that the report was specific to a particular act and time.

The state counters that the information that DHS and the police received was not sufficient to meet the standard for triggering the statute of limitations. The state contends that the information conveyed to DHS and the police was not a "report" because it did not give specific allegations of fact that informed DHS or the police about the particular offense that defendant had committed. The state explains that simply using the word "rape," particularly when used by an eight-year-old child, failed to communicate a particular or specific instance of criminal conduct; rather, it described a general pattern of abuse. The state also argues that a statement by the victim to C, "even when repeated by C's foster mother to DHS," did not constitute a formal report of sexual abuse because it was not intended to trigger an investigation into defendant's conduct.

We begin with several cases that have addressed ORS 131.125(2). In State v. Hutchison , 176 Or.App. 363, 365, 31 P.3d 1123 (2001), we examined whether the statute of limitations had been triggered as to numerous counts of rape, sodomy, and first-degree sexual abuse when a victim reported that the defendant had touched her breast, but denied any other type of sexual contact. The defendant essentially argued that the statute imposed a duty on the state to investigate all possible offenses related to the offense that was actually reported. Id. at 367, 31 P.3d 1123. The state conceded that criminal allegations related to the defendant touching the victim on the breast were barred, but asserted that disclosing one instance of conduct constituting sexual abuse did not constitute "a report of any and all types of sexual abuse that may have occurred before the date of disclosure." Id. at 366, 31 P.3d 1123.

To decide the issue, we interpreted ORS 131.125(2). We concluded that the statutory text "plainly requires actual communication of the facts that form the basis for the particular offense reported." Id. at 368, 31 P.3d 1123. We also noted that the statute contains no text "suggesting that the state is on inquiry notice as to facts not reported." Id . Ultimately, we decided that the statute had begun to run as to the offenses involving the defendant's touching of the victim's breast when she reported that specific conduct to the police. However, her reporting of that specific conduct did not trigger the statute of limitations as to all other sex offenses that may have been committed up to that date. Id . In sum, we concluded that "the statute of limitations begins to run as to each separate offense only when the facts of each separate offense have been reported." Id. at 369, 31 P.3d 1123.

A few years later, we concluded that the report of a "sexual relationship" between a defendant and a victim triggered the statute of limitations for the crime of third-degree sexual abuse. State v. Sauls , 197 Or.App. 545, 552, 106 P.3d 659 (2005). In that case, we noted that, given the context of the report, the "sexual relationship" reported by the defendant's ex-husband necessarily included the specific sexual contact that was eventually charged as third-degree sexual abuse. The defendant's ex-husband had informed DHS that the defendant "has been in a sexual relationship with [the 17-year-old victim] for the past two years, and is now 6 months pregnant by him." Id. at 548, 106 P.3d 659 (internal quotation marks omitted). Some years later, the state charged the defendant with third-degree sexual abuse, alleging that she had subjected the victim to sexual contact by touching his penis and that the victim was incapable of consent by reason of being under 18 years of age. See ORS 163.415(1) (defining third-degree sexual abuse). We noted that, under Hutchison , in order to trigger the statute of limitations,

"the facts that needed to be communicated in order to constitute a report of sexual abuse in the third degree as alleged in Count I in the present case would be that defendant had ‘sexual contact’ with [the victim] that involved touching his penis and that [the

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