State v. Revette ( 2022 )

749
Argued and submitted June 15, 2021, affirmed April 6, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
DAVID EDWARD REVETTE,
Defendant-Appellant.
Multnomah County Circuit Court
18CR06219; A170972
508 P3d 985
Defendant appeals from a judgment of conviction for first-degree sexual
abuse and first-degree sodomy. He raises three assignments of error. In the first
assignment of error, he challenges the denial of his motion to suppress state-
ments made during an interview with detectives; in his view, the circumstances
of that interview were compelling, and he was thus entitled to Miranda warn-
ings. In the second assignment of error, he challenges the trial court’s limitation
on his expert’s testimony about proper child-abuse interview protocols. In his
third assignment of error, he raises an unpreserved challenge to the trial court’s
imposition of a compensatory fine. Held: Because defendant was not in compel-
ling circumstances when he made the statements, the trial court did not err by
denying defendant’s motion to suppress. Further, the Court of Appeals rejected
defendant’s second assignment of error, because defendant failed to make an
offer of proof that allowed the court to determine whether the error was harmful.
Lastly, defendant’s third assignment of error was unpreserved, and the court
declined to exercise its discretion to review the claim as plain error.
Affirmed.
Jerry B. Hodson, Judge.
Kali Montague, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Peenesh Shah, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Mooney, Presiding Judge, and Joyce, Judge, and
DeVore, Senior Judge.*
______________
* Joyce, J., vice DeHoog, J. pro tempore.
750 State v. Revette
JOYCE, J.
Affirmed.
Cite as 318 Or App 749 (2022) 751
JOYCE, J.
Defendant appeals from a judgment of conviction
for first-degree sexual abuse and first-degree sodomy. He
raises three assignments of error. In the first assignment
of error, he challenges the denial of his motion to suppress
statements made during an interview with detectives; in
his view, the circumstances of that interview were com-
pelling and he was thus entitled to Miranda warnings.
In the second assignment of error, he challenges the trial
court’s limitation on his expert’s testimony about proper
child abuse interview protocols. In his final assignment of
error, he raises an unpreserved challenge to the trial court’s
imposition of a compensatory fine. As we explain below, we
conclude that the trial court properly denied defendant’s
motion to suppress, because defendant was not in compel-
ling circumstances when he made the statements. We reject
defendant’s second assignment of error, because defendant
failed to make an offer of proof that allows us to determine
whether the error is harmful. Defendant’s third assignment
of error is unpreserved, and we decline to exercise our dis-
cretion to review it as plain error. Accordingly, we affirm.
We review the trial court’s denial of a defendant’s
motion to suppress for legal error. State v. Northcutt, 246
Or App 239, 245, 268 P3d 154 (2011). We are bound by the
court’s findings of historical fact if there is constitutionally
sufficient evidence in the record to support them. State v.
Love-Faust, 309 Or App 734, 736, 483 P3d 45, adh’d to as
modified on recons, 311 Or App 756, 489 P3d 149 (2021). We
thus set out the facts consistent with the trial court’s explicit
and implicit findings and its decision denying defendant’s
motion to suppress. Id.I. FACTUAL BACKGROUND
A. The victim discloses sexual abuse by defendant.
The victim, N, is an 11-year-old child. Defendant is
N’s mother’s domestic partner. N had regular visitation with
her father. At the end of one of those visits, as her father
was returning N to her mother’s home, N became upset.
N then disclosed to her mother and father that defendant had
touched her vagina. N’s parents contacted law enforcement.
752 State v. Revette
Over the next several days, N met with Department
of Human Services (DHS) caseworkers and underwent an
evaluation at CARES Northwest. N disclosed to DHS case-
workers that defendant had touched “her private parts under
[her] underwear.” During her CARES Northwest evalua-
tion, N disclosed that defendant had come into her bedroom
at night and touched her vagina with his hand and mouth.
When N asked defendant what he was doing, he responded
that he was fixing the blankets around her. N said that that
happened on more than one occasion.
B. After the disclosures, police interview defendant.
After N’s disclosures to her mother, DHS casework-
ers, and CARES Northwest, police set up a meeting with
defendant. That is the interview that defendant contends put
him in compelling circumstances so as to warrant Miranda
warnings. Whether the circumstances surrounding a police
interview are compelling is inherently fact-dependent. We
therefore describe the interview at issue here in some detail.
Gresham Police Detective Bigeagle talked with defen-
dant by phone to set up the interview. Defendant agreed to
come to the Family Services Division building in Portland
for an interview. That building is a two-story building
that houses a detective division, domestic violence advo-
cates, a district attorney’s office, and DHS. The room where
Bigeagle met defendant is just off the main common lobby
of the building and near two exits, separate from the area
used by police officers. Neither exit is locked. The building
itself “looks like a normal office building, not a typical police
station.”
Defendant arrived in late morning and the inter-
view lasted a little over an hour. During the interview,
the door to the conference room was closed but unlocked.
Bigeagle was the only officer present, and he was not block-
ing defendant’s exit. Bigeagle was not in uniform, instead
wearing jeans, a button-up shirt, and tennis shoes. At the
outset of the interview, he emphasized that defendant was
free to leave: “We also talked about you’re free to leave, you’re
not under arrest. No matter what you tell me today you’re
going to be walking out that door. The door is unlocked. You
can just shoot out that way. It’s your option to be here.”
Cite as 318 Or App 749 (2022) 753
Bigeagle advised defendant of his rights and pre-
sented him with a “constitutional rights advice Miranda
form.” Defendant read the form out loud and asked Bigeagle
several questions. More specifically, defendant asked about
his entitlement to a lawyer: “Like technically, get a lawyer
for this scenario right now? * * * Because technically it’s a
questioning.” Bigeagle responded by telling defendant that
he could “get it now, but it won’t be paid for by the court
because you haven’t been charged with anything.” Bigeagle
then reminded defendant that he had the right to remain
silent and did not have to talk with the detective. He then
clarified that defendant was entitled to a court-appointed
attorney if he was charged with a crime. Defendant stated
that he understood and signed the form.
Bigeagle began the interview with a discussion of
defendant’s relationship with the victim’s mother, defen-
dant’s own children, and his work. Defendant said that he
typically puts N and her sister to bed, because their mother
works late. He described the routine and that when he
checks on the girls, he sometimes adjusts blankets.
Bigeagle then said, “to kind of cut to the chase here,
[N] says and it’s kind of—she mentions when you come in
and do the blanket thing in the bedroom. Only she says
that there were times when you actually touched her.” He
explained, “Well, I mean, and I’m saying touched her, I
mean touched her private parts.” Defendant denied that he
had ever done so. He again explained that he adjusted blan-
kets to ensure that N was warm and that sometimes, when
the blankets were “wedged in there, yeah, of course I’ll wake
her up.” Bigeagle then asked whether there was a chance
that “unintentionally your hand may have touched some of
that area?” Defendant denied that he would have done so.
Bigeagle asked defendant whether there was “a possibil-
ity you touched her on the buttocks or the front end” when
adjusting the blankets. After defendant denied that he had
done so, Bigeagle explained:
“Now [N]’s allegation is just to be straight up with you
is, at those times you’re talking about going to the bed and
covering her up, which is all fine, you actually touch her
vagina during that time and it happened on more than one
occasion.
754 State v. Revette
“She said that she would kind of fake like she’s asleep
because it bothered her so much. That’s what her allegation
is on that.
“And she said it started a few years ago and when she
talked about it, she didn’t want to talk about it. She wasn’t
like—I saw the interview, she didn’t act like she wanted to
get you in trouble. She just was kind of confused as to why
this happened, you know.”
Bigeagle explained that N’s disclosures had been made
during a CARES Northwest evaluation. He explained that
CARES Northwest has professionally trained interviewers
who talk to children. During the interview with N, she made
statements that Bigeagle described to defendant as being “a
real believable story about this interaction between you and
her.” Bigeagle then described CARES Northwest’s process
as “being accurate.” Particularly with younger children who
make disclosure’s like N’s, “more often than not, something
happen[ed] there.” Defendant again denied the allegations.
Bigeagle then stated that he did not want to down-
play the allegations, but that he did not believe that defen-
dant was “a monster,” although based on what N described,
“something happened there.” “And that’s what we got to find
out what happened. And that’s kind of why I’m here to talk
to you about it and find out. Can we get to the bottom of
that?” Bigeagle then reiterated his belief that the CARES
Northwest interview was “super powerful.” He stated,
“And I got to be honest with you, I believe from seeing her
interview, that gut wrenching testimony she gave that I
believe that something happened there.” Defendant again
denied the allegations. Bigeagle asked whether defendant
could have touched N by moving blankets around and while
defendant agreed that might have been true, there was “no
fondling.”
After some back and forth, Bigeagle returned to the
CARES Northwest interview and described N as being
“so definitive. I mean, it was heart wrenching for me. I’d
watch a lot just to see how much she was struggling. But
she wasn’t portraying herself as wanting to get you or some-
thing. But she was definitely concerned that this behavior
Cite as 318 Or App 749 (2022) 755
was happening. And as a kid, she didn’t really know how
to deal with it.
“So she would stay awake until you came in—and she’s
telling us this, until you came in. And when you would try
to do the touching, then she would act like she woke up,
then you would say, oh, I’m just putting the blanket on
you.”
Bigeagle observed that N stated that it had hap-
pened several times and “[t]hat was pretty much how it
happened each time.” Defendant responded, “Is that a ques-
tion?” Bigeagle answered, “Well, I’m just telling you what
she’s saying. I kind of want you to chew on that a little bit.”
He went on, “But I got to be honest with you [defendant], and
I told you I’d do that from the start. Something did happen.”
Defendant denied that something had happened. Bigeagle
said that he believed that, and that he also found N’s disclo-
sures “very believable, very believable.”
After some more back and forth, Bigeagle observed
that N was young enough that to have made up the alle-
gations would be “really unusual[,]” so “something hap-
pened there.” Bigeagle explained to defendant that he did
not believe that defendant was a “pedophile” but that per-
haps it could have been a “mistake type situations where
your moment of weakness or whatever you want to call it,
where it happens. And I think that’s what happened here.”
Defendant responded, “No.”
Bigeagle again suggested that perhaps defendant
had had a “lapse in judgment.” After making that sug-
gestion, Bigeagle raised for the first time N’s disclosure
that defendant had performed oral sex on her. Defendant
responded, “That’s beyond absurd.” The detective described
the “touching with your tongue in the vagina” as being “a
little bit harder to explain.” Defendant denied the allegation.
At that point, Bigeagle offered defendant a poly-
graph. In response, defendant said that he would need to
talk to his attorney. Bigeagle agreed that defendant should
talk to his attorney if he had any doubts and described the
polygraph process, including that the results were inadmis-
sible in court. Defendant indicated that he would be open to
that.
756 State v. Revette
Defendant then asked the detective about how long
the interview was going to take. Bigeagle responded that it
would be “[a]s long as you want it to be. I want to—it’s your
time. I mean, I want to make sure you get everything out
that you wanted to tell me.” Defendant asked if he could have
a bathroom break. Bigeagle told defendant that he was free
to go and asked whether defendant wanted to use the bath-
room and come back. He indicated that he was “pretty much
done” with the interview, but defendant said that he had “a
few things” that he wanted to cover with the detective.
When he returned, defendant told the detective
that he had written some things down in anticipation of
the interview and he thought that he and the detective had
covered most of it. Bigeagle clarified with defendant that
defendant wanted to talk to him without an attorney and
defendant indicated that he still had a few things to talk
about. Bigeagle clarified with defendant that he wanted to
continue talking with him, stating, “You still want to con-
tinue? You still had some stuff you wanted to tell me? * * *
But I just want to make sure that you’re okay doing that, is
that right?” Defendant responded affirmatively.
Defendant described that he had observed the fami-
ly’s dog licking N’s and her sister’s “privates” on several occa-
sions while the girls were in their bed. Defendant then ran
down his list and noted that he and the detective had gone
over most of the points he had listed. Defendant ended by
saying, “That’s it.” Bigeagle then terminated the interview.
C. Motion to Suppress Hearing
The state subsequently charged defendant with sev-
eral sexual offenses. Defendant moved to suppress the state-
ments he made to Bigeagle. He argued that he was in com-
pelling circumstances when he made the statements, was
entitled to Miranda warnings, and that the warnings that
Bigeagle provided were inadequate.1 During the hearing on
the motion to suppress, the state played the recording of the
interview. Defendant then largely reprised his arguments
1
Although defendant never confessed to any crime during the interview,
the state used statements that defendant had made in the interview during the
prosecution.
Cite as 318 Or App 749 (2022) 757
in support of his motion to suppress, adding that the fact
that Bigeagle advised defendant of his Miranda warnings
at the outset was a factor that weighed in favor of a finding
of compelling circumstances. In his view, those warnings
“create a feeling that a defendant is not able to terminate an
encounter[.]”
The trial court denied defendant’s motion to sup-
press, concluding that defendant was not in compelling cir-
cumstances and thus Miranda warnings were not required.2
Having listened to the recording of the interview, the trial
court found that the detective’s tone throughout the inter-
view was “very conversational” and “not in a way that one
would typically categorize as interrogation.” The court found
the following facts in concluding that defendant was not in
compelling circumstances:
• Defendant and Bigeagle arranged for the meeting
in advance and defendant agreed to come to the
police station on his own. Defendant was thus not
reliant on police for a ride home.
• Bigeagle was in plain clothes rather than in uniform.
• The two met in the Family Services Division in a
conference room in the lobby, which looks like a nor-
mal office building, “not a typical police station.”
• The lobby is used by various entities in the building
and is near two exits.
• The place where the interview occurred is not
secured—anyone could leave out of the exits at any
point.
• Bigeagle told defendant at the outset that defendant
was free to leave “in a very clear unambiguous way”
and that he was not under arrest.
• The detective was not blocking defendant’s exit
from the room.
2
As explained below, we agree with the trial court on that point; thus, we do
not reach defendant’s alternative arguments described above, including whether
the Miranda warnings that were given were inadequate.
758 State v. Revette
• The trial court, having heard the recording of the
interview, observed that Bigeagle was “professional,
calm and polite” during the interview.
• There was nothing coercive in the questioning.
Bigeagle confronted defendant with evidence but in
a “very conversational manner and not in a way that
one would typically categorize as an interrogation.”
• He brought with him a list of topics he wanted to
cover and then, after taking a bathroom break and
returning, he reviewed the topics he wanted to dis-
cuss with the detective before leaving.
• The interview lasted approximately a little over an
hour, in late morning.
Based on those findings, the trial court concluded
that defendant was not in compelling circumstances.
Additionally, the trial court also rejected defendant’s sug-
gestion that the giving of Miranda warnings somehow
increases the coercive nature of the interview.
II. ANALYSIS
On appeal, defendant challenges the trial court’s
denial of his motion to suppress. Article I, section 12, protects
an individual’s right against compelled self-incrimination
and thus requires Miranda warnings for any individual
“who is in ‘full custody’ or in circumstances that ‘create a
setting which judges would and officers should recognize to
be compelling.’ ” State v. Roble-Baker, 340 Or 631, 638, 136
P3d 22 (2006) (internal citations omitted).
Because defendant was not in full custody, the ques-
tion is whether defendant was in compelling circumstances.
In answering that question, our “overarching inquiry is
whether the officers created the sort of police-dominated
atmosphere that Miranda warnings were intended to coun-
teract.” Id. at 641. We consider the totality of the circum-
stances, including (1) the location of the encounter; (2) the
length of the encounter; (3) the amount of pressure exerted
on the defendant; and (4) the defendant’s ability to termi-
nate the encounter. Id. at 640-41. The “question whether the
circumstances were compelling does not turn on either the
Cite as 318 Or App 749 (2022) 759
officer’s or the suspect’s subjective belief or intent; rather, it
turns on how a reasonable person in the suspect’s position
would have understood [the] situation.” State v. Shaff, 343
Or 639, 645, 175 P3d 454 (2007).
Before turning to those factors, we acknowledge
at the outset that this case is a close one. Some aspects of
the interview bear the hallmarks of what is often consid-
ered the kind of police-dominated atmosphere that Miranda
warnings are intended to counteract. But in light of recent
precedent and in the totality of the circumstances, we con-
clude that the circumstances of this interview were not
compelling.
We begin with the location of the encounter. Police
station interviews are generally viewed as more compelling
than settings more familiar to the defendant. See State v.
Grimm, 290 Or App 173, 180, 414 P3d 435, rev den, 363 Or
283 (2018) (observing that “the unfamiliar, police-station
setting of the interview tended—necessarily—toward a
‘police-dominated atmosphere’ ”); Shaff, 343 Or at 646 (the
fact “that the interview occurs in familiar surroundings
diminishes the police-dominated atmosphere that Miranda
warnings were intended to counteract”). Yet even where a
defendant is questioned in a police station or similar set-
ting, other factors may reduce the “police-dominated atmo-
sphere” of the location. See, e.g., Grimm, 290 Or App at 180(the fact that the defendant voluntarily drove to the police
station for the interview “lessened somewhat” the effect of
the location of the interview, because “the defendant came
to the station voluntarily, on his own power and at a time of
his own choosing”).
The location of the interview here weighs somewhat
in favor of a conclusion that defendant was in compelling
circumstances, though not significantly. The interview took
place in a building that contains police offices and was a loca-
tion that was unfamiliar to defendant. Those facts “ten[d]—
necessarily—toward a ‘police-dominated atmosphere.’ ” Id.Yet other facts are present that reduce that police-dominated
atmosphere. The building itself presents like a normal office
building, not a police station. The interview occurred in
the common area of the building (i.e., not the areas used as
760 State v. Revette
police offices), in a conference room just off the lobby. The
interview room is near two exits, which anyone can leave
through without restriction. Additionally, defendant came
to the station voluntarily and drove himself, further lessen-
ing any “police-dominated atmosphere.” See State v. Barber,
179 Or App 674, 679, 41 P3d 455, rev den, 334 Or 632 (2002)
(no compelling circumstances where the defendant agreed to
voluntarily come to the police station for questioning, made
an appointment and then arrived an hour late, and never
indicated that he wanted to leave). Thus, although defen-
dant was in an unfamiliar building used by police, thereby
tending towards a “police-dominated atmosphere,” this fac-
tor does not weigh heavily in favor of finding compelling cir-
cumstances given the countervailing facts.
The length of the encounter weighs against a conclu-
sion that the circumstances were compelling. The interview
lasted a little over an hour. That amount of time by itself
does not lend itself towards a finding of compelling circum-
stances. See Grimm, 290 Or App 180 (where the interview
took “at most, one and one-half hours,” that amount of time
was not itself determinative of compelling circumstances).
That said, as we have noted on previous occasions, this fac-
tor “is necessarily dependent on the character or quality of
the interaction”; thus, “the principal emphasis is properly on
the qualitative dynamics addressed in the third and fourth
of the Roble-Baker factors.” Northcutt, 246 Or App at 250.
We turn to those two factors. The third factor focuses
on the amount of pressure that law enforcement exerts
on a defendant during the interview. Pressure can come
in “the form of officers’ aggressive tone or demeanor, con-
tributing to a determination of compelling circumstances.
Conversely, an officer’s calm, conversational, and noncon-
frontational demeanor can sometimes weigh against a
compelling-circumstances determination.” State v. Phillips,
302 Or App 618, 626, 459 P3d 909, rev den, 366 Or 552(2020). Confronting a suspect with evidence of guilt, without
more, does not make circumstances compelling. Id. at 631.
Rather, what matters “is not whether evidence of guilt was
apparent to the suspect; rather, it is whether the officers used
that evidence in a coercive manner.” Shaff, 343 Or at 650.
Cite as 318 Or App 749 (2022) 761
Grimm is particularly instructive in illustrating
when an interview becomes compelling. There, a woman
reported that the defendant, who was installing internet
in her home, had pulled down his pants and exposed him-
self. Grimm, 290 Or App at 174. At the officer’s request,
the defendant agreed to go to the police station to discuss
the report. Id. Two officers interviewed the defendant in a
meeting room that was near the main lobby of the building.
Id. at 175. After the defendant explained what had hap-
pened, the officers told the defendant that his version of
events was inconsistent with the complainant’s. Id. at 175-76.
The defendant then repeated his version of events several
times, each time adding details that he had not before.
Id. at 176. The questioning officer repeatedly told the defen-
dant that she did not think his story made sense, would point
out the inconsistency in his story, and “give him another
chance to tell me the story[.]” Id. That happened several
times. Id. At that point, the officer “changed tactics” and
asked the defendant whether he watched pornography and
began telling the defendant that he had a “sexual addiction
problem.” Id. at 176-77. The officer expressed her belief that
the defendant was aroused by the prospect of “being in prox-
imity to the complainant and getting caught, that he had a
sexual addiction problem, and that he needed counseling.”
Id. at 183. The officer then told the defendant to tell them
“what really happened” and defendant confessed. Id. at 184.
We concluded that the circumstances were not com-
pelling at the interview’s outset, because the officers “sim-
ply confronted defendant with incriminating evidence—the
complainant’s version of events—in a noncoercive and non-
aggressive manner and asked defendant for his side of the
story.” Id. at 183; see also State v. Courville, 276 Or App 672,
678, 368 P3d 838 (2016) (compelling circumstances were
absent where an officer, in a friendly and conversational
manner, questioned the defendant at his home, confronted
him with allegations of abuse, indicated several times that
the officer believed the victim, and encouraged the defen-
dant multiple times that he needed to admit the truth of the
victim’s allegations for her benefit).
But we concluded that at the point where the officer
began asking the defendant about watching pornography
762 State v. Revette
and his sexual habits, the circumstances became compel-
ling. That was because those tactics “were calculated to
contradict defendant’s repeated assertions of innocence and
pressure him to continue talking.” Grimm, 290 Or App at
184. The officers prolonged the encounter and “persistently
pressured defendant for more information in ways that
assumed defendant’s guilt.” Id. At that point, then, the offi-
cers were obligated to provide the defendant with Miranda
warnings. Id.Applying Grimm to the facts of this case, we con-
clude that the third factor also does not weigh in favor of
a finding that the circumstances were compelling. On one
hand, Bigeagle was very conversational throughout the
interview. He was in plain clothes, repeatedly told defen-
dant that he was free to leave, and told defendant that no
matter what, he would be leaving the building at the end of
the interview. Defendant reinitiated the interview after a
bathroom break to continue the discussion, which reflects
that he was not feeling pressured or coerced to remain.
On the other hand, Bigeagle confronted defendant
with the victim’s allegations, described CARES Northwest
as being “pretty accurate,” and repeatedly—in the face of
defendant’s denials—expressed that he knew that some-
thing had happened and that he believed that the victim was
telling the truth. But as Grimm and Courville demonstrate,
repeatedly expressing disbelief about a defendant’s story,
expressing belief that the victim or complainant was tell-
ing the truth, and encouraging the defendant to be truthful
does not, without more, create compelling circumstances.
That holds particularly true when there is no accom-
panying increase in intensity or aggression in the manner
or form of questions.3 Once more we turn to Grimm. There,
despite the fact that the officers confronted the defendant
with incriminating evidence, persisted, and “escalat[ed] the
pressure” by repeatedly telling him that his explanations
3
We similarly reject defendant’s argument that giving Miranda warnings
contributed to circumstances that were compelling. State v. Turnidge (S059155),
359 Or 364, 404 n 24, 374 P3d 853 (2016) (rejecting idea that recitation of Miranda
rights transformed the nature of the encounter from one that was not compelling
into one that was).
Cite as 318 Or App 749 (2022) 763
did not make sense and repeatedly asking him to explain
the inconsistencies, we concluded that was insufficient to
create compelling circumstances. Grimm, 290 Or App at
184. Once the officer began asking the defendant about his
sexual habits, we deemed the totality of the circumstances
had tipped towards being compelling. Id. at 183-84.
This case is not meaningfully different than Grimm
before the point that that interview became compelling: as
in Grimm, although Bigeagle repeatedly expressed to defen-
dant that he believed that something had happened, that
N was believable, and that the CARES Northwest pro-
cess was accurate, that approach, without more, does not
transform an interview into compelling circumstances. As
described above, in light of the other circumstances of the
interview, that “more” is missing.
That conclusion is further reinforced considering
the fourth factor, whether defendant was free to terminate
the encounter. Bigeagle told defendant at the outset that he
was free to leave, stating, “You’re free to leave, you’re not
under arrest. No matter what you tell me today you’re going
to be walking out that door. The door is unlocked. You can
just shoot out that way. It’s your option to be here.” When
defendant asked for a bathroom break, Bigeagle reiterated
that defendant was free to go.
In sum, the circumstances of the interview between
defendant and Bigeagle, viewed in their totality, did not pro-
duce “the sort of police-dominated atmosphere that Miranda
warnings were intended to counteract.” Roble-Baker, 340 Or
at 641. We therefore conclude that the trial court correctly
denied defendant’s motion to suppress.
We turn to defendant’s second assignment of error.
At trial, defendant sought to offer testimony through an
expert, Dr. Bourg, on interviewing practices in child sexual
abuse cases. More specifically, defendant asked that Bourg
be allowed to testify about, among other topics, the flaws in
the victim’s interviews in this case, including with CARES
Northwest. The parties agreed that whether that testimony
was permissible was controlled by State v. Black, 289 Or
App 256, 407 P3d 992 (2017), rev’d, 364 Or 579, 437 P3d
1121 (2019). We held in that case that an expert cannot offer
764 State v. Revette
testimony to suggest that a child witness is not telling the
truth by opining that the interviews of that child included
leading, suggestive, or coercive questions. Id. at 260. The
trial court thus instructed Bourg that she could offer opin-
ions about accepted interview techniques, but she could “not
specifically comment on the techniques that were used by
linking it to this specific case.”
After defendant’s trial in the present case, the
Supreme Court reversed our decision in Black. 364 Or 579.
On appeal, the parties agree that, in light of that decision,
the trial court erred in limiting Bourg’s testimony. We
agree. But the state argues that, because defendant failed
to make an offer of proof that would allow us to determine
whether the error is harmful, we should nonetheless reject
defendant’s assignment of error.
We agree that defendant failed to make a sufficient
offer of proof. State v. Morgan, 251 Or App 99, 104, 284 P3d
496 (2012) (“[A]n offer of proof ordinarily is required to pre-
serve error when a trial court excludes testimony.”). Unlike
in Black, where the defendant made an “abbreviated” offer
of proof, 364 Or at 598, defendant here made no attempt to
explain to the trial court what he expected Bourg to testify
about. Defendant presumes that Bourg would testify about
any shortcomings in N’s CARES Northwest interview, but
the record before us contains no basis to know if that would
be the case. In the absence of an offer of proof, we thus
cannot determine whether any error was harmful, and we
therefore reject defendant’s claim of error.
In his final assignment of error, defendant argues
that the court erred in imposing a $3,000 compensatory
fine to the minor victim. Defendant did not object to the fine
below but asks us to exercise our discretion to review his
claim for plain error in light of State v. Moreno-Hernandez,
365 Or 175, 442 P3d 1092 (2019) (rejecting a compensatory
fine awarded to a minor victim where the record did not
show that the child incurred her own expenses).
We decline to review defendant’s claim as plain
error. Where a defendant may have had a strategic reason
not to object, an error is not plain. State v. Gornick, 340 Or
160, 170, 130 P3d 780 (2006) (where one inference is that
Cite as 318 Or App 749 (2022) 765
the defendant chose not to object, the error is not plain).
Here, defendant may have had strategic reasons for not
objecting, including avoiding a larger fine and sentence. See
ORS 161.625(1)(b) (allowing for a financial penalty of up to
$375,000 for Class A felony); State v. Debuiser, 249 Or App
203, 207, 275 P3d 199 (2012) (declining to review an unpre-
served challenge to imposition of a $200 compensatory fine
because defendant could have plausibly “chosen not to object
* * * to avoid the imposition of the same or similar fine”
under a statute that authorized a penalty of up to $2,500
in such circumstances). We therefore decline to review this
claim of error.
Affirmed.