State v. Akins ( 2023 )

538 December 13, 2023 No. 656
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
SHANE AARON AKINS,
Defendant-Appellant.
Clackamas County Circuit Court
18CR78427; A176701
Todd L. Van Rysselberghe, Judge.
Argued and submitted June 5, 2023.
Anne Kimiko Fujita Munsey, Deputy Public Defender,
argued the cause for appellant. Also on the brief was Ernest
G. Lannet, Chief Defender, Criminal Appellate Section,
Office of Public Defense Services.
Robert M. Wilsey, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
MOONEY, J.
Affirmed.
Nonprecedential Memo Op: 329 Or App 538 (2023) 539
MOONEY, J.
Defendant appeals from a judgment of conviction
after a jury found him guilty of two counts of first-degree
sodomy and three counts of first-degree sexual abuse. He
assigns error, first, to the trial court’s denial of his motion in
limine to exclude “[a]ny evidence regarding delayed report-
ing as it relates to child sexual abuse,” arguing that the tes-
timony was impermissible vouching, and, in three combined
assignments of error, asserts that the trial court erred in
admitting certain hearsay statements made by the victim.
As we will explain, we affirm.
We review whether a witness’s statement con-
stitutes impermissible vouching for errors of law. State v.
Sperou, 365 Or 121, 128, 442 P3d 581 (2019). Likewise, we
review a trial court’s decision to admit hearsay evidence
under OEC 803(18a)(b) for errors of law. State v. Lamb, 161
Or App 66, 69, 983 P2d 1058 (1999).
At trial, defendant sought to exclude the testimony
of Jennifer Wheeler, a forensic interviewer employed by
Child Abuse Response and Evaluation Services (CARES),
arguing that the testimony constituted impermissible wit-
ness vouching. Specifically, defendant objected to Wheeler’s
testimony that delayed reporting by victims of sexual abuse
is a typical phenomenon that is not indicative of fabricated
allegations. Defendant also sought to exclude text messages
and statements made by the victim, arguing that the OEC
803(18a)(b) hearsay exception for child declarants does not
apply when the declarant is an adult at the time of trial.
Defendant argues on appeal that the Supreme
Court’s decision in State v. Perry, 347 Or 110, 218 P3d 95
(2009), which held that expert testimony about delayed
reporting is admissible to rebut a defense theory that the
victim’s delay in reporting indicates fabrication, does not
apply when the defense does not advance that theory. But
we rejected that argument in State v. White, 252 Or App
718, 288 P3d 985 (2012), where we held that expert testi-
mony about delayed reporting is admissible to counter a pos-
sible inference, made by the jury absent an explicit theory
advanced by the defense, that the victim’s delay in reporting
540 State v. Akins
indicates fabricated allegations. To the extent that defen-
dant now argues that White was wrongly decided and dis-
tinguishable from this case, we reject those arguments.
In the alternative, defendant argues that Wheeler’s
testimony was nonetheless inadmissible because it was
impermissible vouching. We disagree.
Experts may provide “not only general testimony
about” the typical behavior of abuse victims, but also “tes-
timony as to whether the particular complainant’s conduct
was consistent with that general [behavior].” State v. Remme,
173 Or App 546, 558, 23 P3d 374 (2001) (emphasis in orig-
inal). Expert testimony becomes impermissible vouching
only when it is “either a direct comment * * * or tantamount
to a direct comment on the credibility of a witness.” State v.
Beauvais, 357 Or 524, 545, 354 P3d 680 (2015).
Here, Wheeler’s testimony made no assertion
regarding the victim’s credibility. Indeed, Wheeler did not
discuss the victim in her testimony at all. Wheeler merely
described the general principles of delayed reporting without
offering an opinion as to whether the victim’s behavior here
matched with that description. Cf. State v. Middleton, 294
Or 427, 433 n 6, 657 P2d 1215 (1983) (holding that expert
testimony that a victim’s behavior was “very typical” was
not vouching.) Nor did Wheeler indicate that such a delay
was evidence that the abuse did occur or that the victim
was credible. See State v. Brand, 301 Or App 59, 67, 455 P3d
960 (2019), rev den, 366 Or 259 (2020), (holding that a wit-
ness’s testimony was impermissible vouching where it indi-
cated that the victim delayed reporting out of fear, thereby
signaling the witness’s belief that the victim was truthful).
And, contrary to defendant’s assertion, the fact that the vic-
tim’s circumstances closely mirrored the general principles
Wheeler described did not indicate whether Wheeler did or
did not believe the victim. Thus, the trial court did not err
by denying defendant’s motion to exclude that testimony.
In defendant’s combined second, third, and fourth
assignments of error, he asserts that out-of-court state-
ments made by the victim when she was a minor were not
admissible under OEC 803(18a)(b) because she was an adult
Nonprecedential Memo Op: 329 Or App 538 (2023) 541
at the time of trial. Defendant’s argument is foreclosed by
our decision in State v. Juarez-Hernandez, 316 Or App 741,
503 P3d 487, rev den, 369 Or 856 (2022), which rejected sim-
ilar arguments. We therefore reject defendant’s arguments
here.
Affirmed.