State v. McCombs

544 P.3d 390

330 Or.App. 545

STATE of Oregon, Plaintiff-Respondent,

v.Joshua Terrell Green MCCOMBS, Defendant-Appellant.

A175889

Court of Appeals of Oregon.

Submitted April 24, 2023

February 7, 2024

Klamath County Circuit Court, 16CR01356; Andrea M. Janney, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stephanie J. Hortsch, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A Casper, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, Powers, Judge, and Hellman, Judge.

ORTEGA, P. J.

₅₄₇Defendant appeals his conviction by a jury for first-degree rape, ORS 163.375(1)(b) (Count 1); first-degree sodomy, ORS 163.405(1)(b) (Count 2); and first-degree sexual penetration, ORS 163.411(1)(b) (Count 3). He assigns six errors, challenging the denial of his motion for a judgment of acquittal (MJOA) on Counts 1 and 3, the denial of his motion to suppress his statements confessing to the conduct underlying those convictions, and the imposition of 300-month prison sentences and 100-year post-prison supervision (PPS) terms on each of the three counts.¹ We conclude that the evidence supported the denial of his MJOA as to Count 1, that his inculpatory statements were correctly admitted, and that his sentence on Counts 1 and 2 were not constitutionally disproportionate. However, we conclude that the trial court erred in denying defendant’s MJOA on Count 3, because the evidence was legally insufficient to corroborate his inculpatory statements that supported the sexual penetration conviction. Accordingly, we reverse defendant’s conviction on Count 3; otherwise, we affirm the court’s judgment.

We begin by providing the principal facts on which we base our decision and provide additional relevant facts as we address each issue. Detective Ferns interviewed defendant in connection to allegations that defendant had sexually abused his four-year-old step-daughter, H, after H told her mother, "[D]addy hurt [my] butt with his wee-wee."² Defendant initially denied that he had touched H inappropriately. Ferns told defendant, "[I]f something did happen between you and your daughter, I’m going downstairs and you’re leaving this room"; "I will not arrest you"; "[T]he truth always comes out"; and "If people lie to me ***, I paint them out to be liars in my report." Defendant stated, "I did not ₅₄₈touch her with my penis"; "I might have rubbed harshly when I was cleaning, but the poop wouldn’t come off." In response to whether his finger "entered the cavity of [H]’s anus," defendant replied, "[M]y finger might have entered [H] *** once." Defendant explained that he was helping H with a bath, that "the soap was really slippery" and "it just happened," and that he made a mistake. Ferns replied, "I can tell on your face it was intentional" and "If this is true, *** let’s *** get you some help on it." Defendant continued to deny that he acted intentionally.

As the interview proceeded, Ferns said, "I think you stuck your finger in your daughter’s ass on purpose," and defendant relented, stating, "I did, sir." He explained that he put his "middle finger *** [a]ll the way" up H’s anus for "[m]aybe two [or] three minutes," on purpose, more than once, but no "more than five times," Moreover, defendant stated that he "put" his penis in H’s anus "[n]ot all the way." He explained, "I put it in, and then she started screaming really bad. I pulled it out and instantly left the [bath]room." Defendant further explained that he used baby oil as a lubricant and that he did not use a condom. Ferns asked defendant to write an apology letter, describing "in detail what [defendant] did" to H, and defendant did so. After defendant wrote the apology letter, Ferns told defendant (falsely), "Your daughter had a tear on her vagina. What’s going on about that?" Defendant replied, "I never tried to insert it into there. *** I pushed it there, but I couldn’t." Defendant also stated that he did not know how far his penis went into H’s vagina and that "[m]aybe" it was "an inch, if that." At the end of the interview, defendant stated, "I’m not glad that I did it"; "I’m glad that I told you the truth"; "There’s no help for this"; and "Tell [H] I’m sorry."

The state indicted defendant with first-degree rape, ORS 163.375(1)(b) (Count 1), alleging that defendant "engage[d] in sexual intercourse" with H; first-degree sodomy, ORS 163.405(1)(b) (Count 2), alleging that defendant "engage[d] in deviate sexual intercourse" with H; and first-degree sexual penetration, ORS 163.411(1)(b) (Count 3), ₅₄₉allegmg that defendant "penetrate[d]" H’s anus with defendant’s finger.³

Before trial, defendant moved to suppress his statements to Ferns, arguing that they were not voluntary and were, rather, coerced. He explained that he suffered from post-traumatic stress disorder (PTSD) and argued that Ferns misled him during the interview as to injuries to H’s genitals and by promising to help him and informing him that he would not be arrested if he admitted the alleged conduct. Two expert witnesses— clinical psychologist Dr. Calvo and neuropsychologist Dr. Stanulis—testified for defendant, opining that defendant’s undisputed PTSD put him at risk of making false and involuntary statements. Ferns testified that, having interviewed "several hundred" people, he had noticed nothing "out of the ordinary mentally going on with" defendant, including no changes in defendant’s demeanor. The trial court denied defendant’s motion in a detailed opinion letter that found, based on Ferns’s testimony during the suppression hearing and the recording of Ferns’s interview with defendant, that defendant made his statements during the interview voluntarily. As the court explained,

"[D]efendant has a valid PTSD diagnosis [and] there may be circumstances or instances when an otherwise benign interrogation or interview could become coercive due to an individual’s acute PTSD reaction.

"[Here,] [h]owever, there is no evidence that *** defendant was exhibiting any signs of severe anxiety or distress that would have been out of the ordinary for this situation. *** Ferns testified that *** defendant was behaving in ways that were consistent with many defendants he had interviewed before. [Ferns] did not notice any physiological responses in *** defendant that alerted him to any significant issues."

The court further found that Calvo and Stanulis, the two expert witnesses who testified to the opinion that ₅₅₀defendant suffered from PTSD and involuntarily confessed, were neither credible nor persuasive. The court explained:

"The court *** acknowledges the very real phenomena of false confessions. *** Dr. Calvo[] testified that he believed [defendant’s] confession to be false because *** defendant suffers from guilt due to actions in combat. Specifically, Dr. Calvo testified that *** defendant was likely confessing to this charged crime out of guilt for having shot a child during the war. There is absolutely no evidence on the record to suggest this is anything other than pure speculation. Dr. Calvo frequently contradicted himself and had to be routinely redirected by counsel. For example, Dr. Calvo testified that it is very common for veterans with PTSD to exhibit a mistrust and disdain for authority. [D]efendant *** was respectful and compliant with authority. When carefully redirected by defense counsel, Dr. Calvo testified that *** defendant’s deference to authority during the interview could certainly be a ‘result’ of PTSD. Overall, the court did not find Dr. Calvo’s testimony to be credible.

"Further, Dr. Stanulis’[s] opinion is not persuasive. His report reads as little more than a cursory critique of the interview, while citing wholly unreliable sources. His testimony was also contradictory. When confronted with conflicting information or difficult questions, he became evasive and non-responsive. Neither expert could identify behaviors or actions by *** defendant during the interview that could be identified as symptoms of PTSD. Dr. Calvo cited *** defendant’s politeness as evidence of PTSD, while Dr. Stanulis mentioned that defendant almost vomited and wascompliant. When pushed, neither witness could articulate why *** defendant’s PTSD made this confession involuntary. Dr. Stanulis relied heavily on his belief that the interview itself was coercive and that [defendant] would be especially vulnerable to that type of interview. Overall, the testimony of Dr. Stanulis was not particularly-credible or compelling."

Moreover, the court found that defendant "willingly went to the police station to be interviewed"; that he "was advised of his Miranda rights and signed an acknowledgement that he understood those rights"; that "[t]here [wa]s no evidence on the record that he did hot understand his Miranda rights, or that his PTSD rendered him unable to understand his rights" and "no indication of confusion on ₅₅₁behalf of *** defendant." The court further found that the interview was a "one-on-one interview that lasted less than one hour," that it "occurred in the middle of the day," and that "defendant was never threatened, restrained, or told he could not leave."

Regarding Ferns’s statement, "I’ll go upstairs,⁴ and you’ll go home," the court, based on State v. Vasquez-Santiago, 301 Or App 90, 456 P.3d 270 (2019),⁵ explained:

"Th[at] [statement] triggers an inquiry about whether inducement overborne the defendant’s free will. [However,] [h]ere, there were no promises that a confession could secure a benefit or avoid a harm. [Defendant] was encouraged to tell the truth. *** Unlike Vasquez-Santiago, there were no direct or implied promises regarding the state’s action towards the defendant. *** Ferns did not promise or threaten the defendant in any way ***. Ferns did not promise or threaten any leniency or harsh treatment. [D]efendant specifically

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