State v. Evensen

298 Or.App. 294

447 P.3d 23

STATE of Oregon, Plaintiff-Respondent,

v.Thomas William EVENSEN, Defendant-Appellant.

A160811

Court of Appeals of Oregon.

Argued and submitted February 15, 2018.

June 26, 2019

Steven J. Sherlag, Portland, argued the cause and filed the briefs for appellant.

Michael A. Casper, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

HADLOCK, P. J.

Defendant appeals a judgment convicting him of five counts of first-degree sexual abuse and one count of attempted first-degree sexual abuse. He raises 10 assignments of error on appeal, most of which we reject without extended discussion. We write primarily to address two of defendant’s arguments. First, we consider defendant’s assertion that the trial court erred when it admitted into evidence a recording of a face-to-face conversation between defendant and the victim, M, which M made without defendant’s knowledge. We conclude, for reasons explained below, that the surreptitiously recorded conversation was admissible. Second, we address defendant’s argument that the trial court erred by admitting a detective’s testimony about her experiences with perpetrators and victims of child sexual abuse, including the comparative suggestibility of certain children based on their ages. We disagree with defendant’s contention that the detective’s testimony amounted to scientific evidence that was presented without the necessary foundation. Accordingly, we affirm.¹

To the extent that defendant’s arguments on appeal challenge the legal bases for the trial court’s evidentiary rulings, e.g. , its interpretation of the statutes governing admissibility of surreptitiously recorded conversations, we review those rulings for legal error. Yoshida’s Inc. v. Dunn Carney Allen Higgins & Tongue , 272 Or. App. 436, 443, 356 P.3d 121 (2015), rev. den. , 358 Or. 794, 370 P.3d 502 (2016). We describe the facts relevant to the challenged rulings in a manner consistent with the trial court’s express findings and those implicit in its rulings, which the record supports. State v. Rosales , 291 Or. App. 762, 764, 423 P.3d 112 (2018). "Because the trial resulted in convictions on all counts, we state the background facts in the light most favorable to the state." State v. Nelson , 246 Or. App. 91, 93, 265 P.3d 8 (2011).

M, who was 12 years old during the events described here, is the daughter of defendant’s brother-in-law. M’s parents had separated, and M’s father had custody of her most of the time. However, both of M’s parents had struggled with controlled substances and they sometimes were unavailable or unable to care for her. During those times, M would stay with other relatives, including defendant, who lived with his wife and child on a rural property. Defendant and his family at least sometimes supported M’s mother’s attempt to gain custody.

M had a room in defendant’s house and stayed there a significant amount of the time, sometimes dividing her weeks between defendant’s home and one of her parents’ homes. Defendant drove M to and from school, took her on family outings, bought her a health club membership, and gave her an allowance. Defendant subscribed to a telephone service and used that service to make calls from his home.

One Saturday night while she was staying at defendant’s house, M asked her mother to come get her. When her mother asked why, M explained that "[defendant] has given me all these things because I let him play with me and I don’t ever want to see him again. Just please let me come home."

M also sent her mother an audio recording she had made of a conversation between herself and defendant, using an iPhone that did not then have an active telephone subscription. The conversation that M recorded took place when she and defendant were at defendant’s house; she made the recording without defendant’s knowledge. The recording included a lengthy exchange that began with defendant making a proposition:

"Yeah, this may sound weird to you, but I mean nothing weird by it, okay? Being’s [defendant’s wife and child] went off and left us this evening, would you like to be my date this evening and go to town and do whatever you would like? Not as in a date type idea, but ..."

The conversation continued with M and defendant discussing the possibility of going "shopping," a term which they sometimes used to describe looking in stores without purchasing anything, or going on a "buying trip." Defendant then suggested that he might give M cash to spend at stores or on a phone card.

Additional statements that M and defendant made could reasonably be interpreted as confirming that defendant would give M money only if she let him do something—the "same thing" he apparently had done before—a thing that M did not want him to do. M told defendant that she does not like to do that "same thing" and that defendant "always say[s] not right now, but just, ow." Defendant then explained himself to M:

"[Defendant:] Well see my problem is [M], is I keep myself up at night telling myself, you’re not dreaming about [M]. I’m not gonna dream about [M], and six out of seven nights of the week I dream about you. I think about you all day when I’m out working. Like I said there’s something wrong with me.

"[M:] Uh huh.

"[Defendant:] I think about you consistently, all the time."

The conversation continued, with defendant saying that he would take M shopping, but not "buying," and M saying "I don’t want you to right now, like, and I can’t get any unless you get to right now, and I don’t want you to right now, cuz ..." Defendant told M that he had already given her "a bunch of special privileges" that day and declared that those special privileges were "done" and he would not do anything for her that he would not do for his other nieces or nephews. When M asked why, defendant explained:

"[Defendant:] Because you have consistently always dangled the bait out there in front, been a tease, and never follow through. So I kind of decided from now on, you have to earn these special privileges beforehand.

"[M:] Yeah, I know, and I want to go shopping, but I don’t want you to have to, I don’t want you to do that right now. Like, cuz I want to get that, I want to go shopping and that was happening really soon which means you have to get what you want right now, and I don’t want you to right exactly now."

"[Defendant:] So we won’t worry about it. We’ll just go shopping.

"[M:] Okay, I mean buying. Let’s go. I guess we can just go shopping which is looking.

"[Defendant:] (inaudible)

"[M:] Why?

"[Defendant:] Cuz then I can’t (inaudible). You mad at me now?"

After hearing that recording, M’s mother contacted police on the following Monday morning.

M was interviewed by police later that day. Before that, however, M met with her school counselor, who described M as "very uncomfortable." M told the counselor that she had been touched in a private area "over the top of clothing," but M "really start[ed] to get tight" when the counselor asked whether she had been touched underneath clothing, and the counselor told M they would not discuss that.

Detective Yerrick interviewed M that afternoon. M told Yerrick about several times that defendant had touched her sexually, including on her breasts, buttocks, and vagina. Two incidents occurred when M was in or near a hot tub, others occurred when defendant gave M massages, and others occurred when defendant told M she had to give him a hug.

Defendant was charged with five counts of first-degree sexual abuse and one count of attempted first-degree sexual abuse. The state moved to admit the audio recording that M had made of her conversation with defendant. The trial court granted that motion, and the recording was played for the jury at trial. Witnesses at trial included M, defendant, and Yerrick. We describe Yerrick’s testimony in detail later in this opinion, in conjunction with our discussion of defendant’s argument that the testimony was erroneously admitted. Here, it is sufficient to note generally that Yerrick described her own experiences investigating reports of child abuse. In that regard, she testified that younger children tend to be more susceptible to "suggestibility" about what happened than older children, that very few cases she had investigated involved a suspect who was "a stranger to the child," and that suspects typically were people "connected to the [victim’s] family" and "someone that the parent has a good relationship with." The jury convicted defendant on all counts and he appeals.

THE SURREPTITIOUS RECORDING

In his first assignment of error on appeal, defendant argues that the trial court erred when it admitted evidence of the audio recording that M made, without defendant’s knowledge, of her conversation with him. Defendant’s argument is based on ORS 165.540,² which generally "prohibits, subject to certain exceptions, the interception of a private conversation unless all parties to the conversation are informed that their conversation is being recorded." State v. Klein , 352 Or. 302, 307, 283 P.3d 350 (2012). Except in limited circumstances not applicable here, ORS 41.910 makes inadmissible "the contents of any wire or oral communication" that was intercepted in violation of ORS 165.540. Defendant contends that the recording is inadmissible under those statutes. The state disagrees, asserting that a particular exception to the general prohibition applies, viz. , the "homeowner’s exception" created by ORS 165.540(3), which says that the prohibitions described in certain subsections of ORS 165.540(1) "do not apply to subscribers or members of their family who perform the [prohibited acts] in their homes." See generally State v. Rainey , 294 Or. App. 284, 288, 431 P.3d 98 (2018) (describing the subsection (3) exception as the "homeowner’s exception").

The statute at issue— ORS 165.540...