State v. Rhamy

                                        28

Argued and submitted May 8, 2019, affirmed May 6, petition for review denied
                      October 22, 2020 (

)


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                  CAMERON CHARLES RHAMY,
                       Defendant-Appellant.
                    Linn County Circuit Court
                      16CR52019; A165944
                                    

    Pursuant to a conditional no-contest plea, defendant was convicted of
attempted first-degree sodomy. Before trial, defendant moved in limine to exclude
as unreliable the five-year-old victim’s out-of-court statements about the abuse
and in-court testimony. The trial court denied the motion, concluding that the
determination of reliability was committed to the trier of fact at trial under State
v. Bumgarner, 

, 

, rev den, 

 (2008), cert den,

, adh’d to as modified on recons, 

, 

 (2009).
On appeal, defendant assigns error to the denial of his motion to exclude the
victim’s statements and testimony, arguing that Bumgarner is distinguishable or
has been displaced by later Supreme Court precedent. Held: The trial court did
not err in denying defendant’s motion to exclude as unreliable the victim’s statements and testimony; Bumgarner was controlling authority on that issue, and its
holding had not been called into doubt by later decisions.
    Affirmed.



    DeAnn L. Novotny, 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.
   Jennifer S. Lloyd, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Lagesen, Presiding Judge, and James, Judge, and
Landau, Senior Judge.
    LAGESEN, P. J.
    Affirmed.
Cite as 

 (2020)                                29

        LAGESEN, P. J.

         Defendant appeals a judgment of conviction, pursuant to a conditional no-contest plea, for one count of
attempted first-degree sodomy. He assigns error to the trial
court’s denial of his motion in limine to exclude as unreliable
the five-year-old victim’s (1) out-of-court statements about
the abuse and (2) in-court testimony. The court denied the
motion on the ground that, under State v. Bumgarner, 

, 

, rev den, 

 (2008), cert
den, 

, adh’d to as modified on recons, 

, 

 (2009), the determination of the reliability
of the child victim’s statements and testimony was committed to the trier of fact at trial. On appeal, defendant contends that the court was wrong to rely on Bumgarner and,
in any event, that the Supreme Court’s decision in State v.
Lawson/James, 

, 

 (2012), undermines
Bumgarner to a degree that we must overturn it. We disagree and affirm.

        According to the facts adduced at defendant’s plea
hearing, which are few, defendant’s conviction arose out
of his conduct with his five-year-old “niece by marriage.”
Defendant’s stepsister found defendant and the victim on
a bed in an upstairs bedroom. The victim later disclosed
to her mother that defendant touched her vagina with his
mouth and then, in a medical exam at ABC House, disclosed
that defendant also used his hands and penis to touch her
vagina, and had touched her buttocks with his hand.

         Defendant was charged with first-degree sodomy
and first-degree sexual abuse as a result of the victim’s
disclosures. He moved in limine to exclude her out-of-court
statements about the abuse and to exclude her from testifying. He contended “that the State cannot carry its burden under OEC 402 to show that the witness’s memory
is reliable evidence, and therefore relevant.” Defendant
argued that the techniques used by the various adults who
asked the victim about defendant’s conduct so undermined
the reliability of the victim’s statements that her statements and testimony about defendant’s conduct had to be
excluded.
30                                            State v. Rhamy

         Relying on Bumgarner, the trial court denied the
motion, concluding that, under it, the “standards used for
the analysis of eyewitness identification statements and
testimony are not to be applied to victim statements and
testimony, as Oregon’s competency rules and the ability to
cross-examine witnesses suffice.” Following the court’s ruling, defendant entered a conditional plea agreement under
which he pleaded no contest to one count of attempted first-degree sodomy, reserving the right to appeal the court’s ruling on the motion in limine.
         On appeal, defendant contends that the trial court
erred in denying the motion under Bumgarner. He asserts
that that case involved a pretrial challenge to a victim’s
competency to testify, not to the reliability of the testimony
as is the case here. Alternatively, defendant argues that, to
the extent Bumgarner otherwise controls, its analysis has
been displaced by the Supreme Court’s decision in Lawson/
James.
          The state responds that the trial court correctly
denied defendant’s request for a pretrial determination of the
reliability of the victim’s statements and testimony, noting
that, in State v. Kelly, 

, 

 (2011),
we relied on Bumgarner to uphold a trial court’s denial of the
defendant’s pretrial motion to exclude the testimony of the
child victim as unreliable. See Kelly, 

.
The state argues further that the Supreme Court’s decision
in Lawson/James does not displace Bumgarner and Kelly,
because that case dealt solely with eyewitness identification
evidence and did not address the propriety of determining
pretrial the reliability of the statements and testimony of a
child victim of sexual offenses.
         Whether evidence is of the type that may be
excluded on the grounds of reliability based on a pretrial
determination by the court presents a question of law, so we
review for legal error. See, e.g., Kelly, 

(so reviewing similar claim of error).
         We agree with the state that Bumgarner and Kelly
control. Under those cases, the trial court was correct to conclude that the determination of the reliability of the child
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victim’s testimony and statements—and, in particular, how
various questioning or interviewing techniques call the
reliability of that evidence into question—is a matter for
the trier of fact at trial, not a matter to be determined by
the court in a pretrial hearing. Kelly, 

(issue of reliability of child victim’s testimony “is essentially
a question of credibility for the trier of fact to weigh in its
deliberations rather than a question of admissibility for the
court to determine in the first instance”); Bumgarner, 

 (rejecting contention that effect of interviewing techniques on a child victim’s testimony is a matter to be
determined pretrial and holding that “evidence of improper
interviewing techniques is not admissible in a pretrial competency hearing” but is, instead, evidence to be presented to
the trier of fact at trial if otherwise admissible). Pertinent
to defendant’s arguments here, in reaching our conclusions
in Kelly, we expressly rejected the contention that the pretrial process for assessing the reliability of eyewitness identification testimony established in State v. Classen, 

, 

 (1979), should be extended to allow a
pretrial determination of the reliability of the statements
and testimony of a child victim of sexual offenses in view of
particular interviewing techniques; we concluded that such
evidence was not among the categories of evidence susceptible to exclusion based on unreliability. Kelly, 

.
          The Supreme Court’s decision in Lawson/James
does not displace Bumgarner and Kelly. In Lawson/James,
the court “revisit[ed] and augment[ed] the process outlined
in Classen” for determining pretrial whether eyewitness
identification evidence was sufficiently reliable to be admitted at trial. 

. At no point did the court suggest
that it intended for the process set forth in that case to apply
to categories of evidence apart from eyewitness identification evidence. Rather, its holding, by its terms, applies to
“pretrial motion[s] to exclude eyewitness identification evidence.” 

 (emphasis added). For that reason, Lawson/
James, and its augmentation of the pretrial processes for
determining the reliability of eyewitness identification evidence, affords no basis to revisit our holdings in Kelly and
Bumgarner regarding the propriety of determining pretrial
32                                          State v. Rhamy

whether interviewing techniques have rendered unreliable
the statements and testimony of a child victim of sexual
offenses. Under those decisions, the trial court was correct
to deny defendant’s pretrial motion.
        Affirmed.