State v. Miles

To satisfy the subjective belief element of first-degree sexual abuse (ORS 164.245) the victim need only consider the area of their body that was touched to be one that is ordinarily to be touched by people who are intimately close to them. For a three year old, this included body parts where her parents would touch her such as her hips and legs.

Defendant challenges a sexual abuse conviction by raising three pertinent assignments of error. Defendant first challenges the trial court’s decision to deny his motion for acquittal because he believes that his three year old victim was too young to subjectively believe that her lower extremities were “intimate parts” which is an essential element of the offense. Secondly, defendant assigns error to the trial court’s decision to disallow expert testimony regarding whether or not the child victim could form the necessary subjective belief in regards to her intimate parts. The Court determined that the subjective belief prong of analysis could be satisfied here because the child victim would ordinarily only allow intimately close relations, such as her parents, touch her hips and legs. Additionally, the Court determined that the lower court did not err in disallowing the expert testimony because the expert was going to testify as to the child’s comprehension of words rather than her understanding that only her parents touched her lower body. Since the expert would not have been able to determine whether the child believed that strangers could ordinarily touch the questioned area of her body there was no error. Affirmed.