State v. McCrorey

196 P.3d 106

223 Or. App. 655

STATE of Oregon, Plaintiff-Respondent, v. Ruby Darlene McCROREY, Defendant-Appellant.

C051362CR.

A130878.

Court of Appeals of Oregon.

Argued and Submitted April 22, 2008.

Decided November 12, 2008.

Andrew S. Chilton argued the cause for appellant. With him on the briefs was Chilton, Ebbett & Galli, LLC.

Janet A. Klapstein, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.

LANDAU, P.J.

In this criminal case, defendant was convicted of aiding and abetting her husband in the commission of 17 sex offenses against defendant's teenaged daughter between 1995 and 1999. On appeal, she contends that nine of those convictions were barred by the six-year statute of limitations. She argues that the state received notice of her role in the abuse of her daughter as early as 1997 and that, as a result, the state's 2005 prosecution is time barred as to any acts that occurred more than six years before the latter date. In the alternative, she contends that the trial court erred in ordering that the sentences on some of those convictions be served consecutively without jury findings on the facts necessary to a lawful order that sentences be served consecutively. Defendant concedes that she did not advance that argument to the trial court, but she asks that we consider the matter as plain error. We affirm.

We recount the facts in the light most favorable to the state. State v. Hutchison, 176 Or.App. 363, 365, 31 P.3d 1123 (2001). Defendant married Burris in 1984. At the time, she had two young daughters from an earlier relationship—C (the victim in this case), born in 1981, and T, born in 1983. In 1985, the family moved to Idaho, to be near Burris's family.

Beginning in 1991 or 1992, Burris began to sexually abuse C, although, at that point, he did not have intercourse with her. At approximately the same time, Burris's 14-year-old nephew, S, came to live with the family. At some point during the following year, defendant began regularly having sex with S. Defendant and Burris thereafter entered into an agreement that she would be permitted to continue to have sex with S, while Burris would be permitted to have sexual contact with C. In 1995, the family—including S— moved to Oregon. Later that year, Burris demanded that C have intercourse with him. Burris continued to sexually abuse C over the course of the next four years.

Meanwhile, in 1997, S raped C's sister, T. He was convicted and sent to prison. T was placed in foster care. During the summer of 1997, while in foster care, T reported to her foster mother that defendant had been sharing a bedroom with S, and Burris had been sharing a bedroom with C T reported that she had seen Burris and C "kissing, hand-holding, and cuddling," and that she had seen condoms in Burris's bedroom. T told the foster mother that, at some point in late 1996 or early 1997, C was afraid that she had become pregnant. The foster mother reported the matter to Washington County Services to Children and Families (SCF). The SCF caseworker talked to C, who denied having been sexually abused either by Burris or S. SCF reported the matter to the police.

In October 1997, S's mother notified SCF that she had received a letter from S in which S described the contract between defendant, Burris, C, and himself, and stated that he had been involved in some "threesomes and foursomes," including C. That same month, the family had a therapy session with its caseworker, Dobbs. S's allegations were shared with defendant and she denied them, stating that she thought "[S] had done this for revenge," because he was now in jail for his rape of T, and because defendant had written him a "nasty" letter telling him of her anger and resentment over his rape of her daughter. At that same meeting, T asserted that Burris had been having sex with C. According to Dobbs's notes, C "strongly denies the allegation and appears visibly disturbed that they have come up."

In November 1997, the police followed up on the SCF report. The investigating officer spoke with C, who "denied that anything had taken place in the past sexually involving [S] or Burris and she denied that anything was presently happening to her sexually involving Burris." The investigating officer ended the report with a recommendation that the case be closed as unfounded.

In 1999, C gave birth to Burris's son. When that child was two or three years old, police received a report that the child had been abused by his father. It was at that point that C reported to the police Burris's years of sexual abuse and defendant's complicity in that abuse, beginning in the early 1990s.

In May 2005, the state charged defendant with 17 different counts, based on the theory that she aided and abetted Burris in his abuse of C. Nine of those counts related to abuse that occurred before 1998: Count 1 (sodomy I) alleged acts occurring between July 4, 1995 and July 25, 1995; Count 2 (sexual abuse I) acts between July 4, 1995 and July 25, 1995; Counts 3, 4, and 5 (sodomy I) acts between July 26, 1995 and October 2, 1995; and Counts 6, 7, 8, and 9 (rape I) acts between October 3, 1995 and July 25, 1997. As to each of those counts, the indictment alleged that the victim "is less than 24 years old and never reported the above crime to a law enforcement agency or other governmental agency." The remaining eight counts concerned acts that occurred on or after December 1, 1998, and are not at issue in this appeal.

Defendant moved to dismiss the nine counts on statute of limitations grounds. According to defendant, the state had received a report of ongoing abuse in 1997 when T reported to her foster mother and the foster mother passed the information along to SCF and the police. As a result, defendant argued, the six-year statute of limitations required the state to bring charges against her for any abuse that occurred before that report by 2003. Because the state waited until 2005 to bring charges against her for abuse that happened before the 1997 report, she argued, those charges are time barred. The trial court denied the motion. The trial court explained that the applicable statute applies only upon a report of the specific offenses that the defendant is charged with having committed and is not triggered by mere general allegations of abuse.

The matter was tried to the court, which found defendant guilty on all counts. At sentencing, the court ordered that the sentences on counts 3 and 4 should run consecutively to the sentences on the other counts. Defendant did not challenge the court's authority to impose consecutive sentences.

On appeal, defendant first contends that the trial court erred in denying her motion to dismiss the first nine counts of the indictment on statute of limitations grounds. She contends that the 1997 reports to T's foster mother, to SCF, and to the police were sufficient to trigger the running of the statute of limitations and thus bar prosecution of the nine counts that were based on conduct that occurred more than six years before the 2005 indictment. Defendant claims support for her position in our decision in State v. Sauls, 197 Or.App. 545, 106 P.3d 659 (2005).

The state responds that defendant's reliance on Sauls is misplaced and that, in this case, the 1997 reports did not contain any information pertaining to the particular offenses with which defendant was charged in this case. According to the state, T's suspicions were, by her own admission, merely suspicions based on no direct evidence of abuse. The state contends that there was no report of any particular offense that Burris committed against the victim in this case, C. Moreover, the state contends, there is no report of any offense at all committed by defendant involving C.

The relevant statute of limitations is set out in ORS 131.125(2) (1991),¹ which provides:

"A prosecution for any of the following felonies 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, any time before the victim attains 24 years of age or within six years after the offense is reported to a law enforcement agency or other governmental agency, whichever occurs first:

"* * * * *

"(d) Rape in the first degree under ORS 163.375.

"* * * * *

"(g) Sodomy in the first degree under ORS 163.405.

"* * * * *

"(k) Sexual abuse in the first degree under ORS 163.427."

Thus, the statute of limitations for each of the offenses in this case is six years from the date of a "report" of "the offense" or the victim's twenty-fourth birthday, whichever is first.

In Hutchison, we addressed what constitutes a "report" of "the offense" sufficient to trigger ORS 131.125(2). We concluded that the statute applies when there has been "actual communication of the facts that form the basis for the particular offense" with which the defendant has been charged. 176 Or.App. at 368, 31 P.3d 1123. We rejected the notion that the statute is triggered merely by a report of facts that might put the state on "inquiry notice" as to facts not actually reported. Id. We emphasized that the report that triggers the statute of limitations is offense specific. A report of facts that might constitute an offense—even a sexual offense—by itself, is not enough; the facts must constitute a report of the offense with which the defendant has been charged:

"[T]he statute of limitations as to each of the listed felonies begins to run only when the specific factual information about conduct constituting `the offense' is reported. ORS 131.125(2). It does not begin to run as to an offense based on other conduct that was not reported. Each separate instance of criminal conduct is a separate offense and may be separately charged as such. Hence, the statute...