Submitted on remand March 11, 2013.
On remand from the Oregon Supreme Court, State v. Klontz, 353 Or 208, 297 P.3d 480 (2013). Marion County Circuit Court 08C40935, John B. Wilson, Judge.
Peter Gartlan, Chief Defender, and Marc D. Brown, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.
John R. Kroger, Attorney General, David B. Thompson, Interim Solicitor General, and Rene C. Holmes, Senior Assistant Attorney General, filed the opening brief for respondent. Mary H. Williams, Deputy Attorney General, Anna M. Joyce, Solicitor General, and Tiffany Keast, Assistant Attorney General, filed the supplemental brief.
Before Armstrong, Presiding Judge, and Haselton, Chief Judge, and Egan, Judge.
HASELTON, C. J.
This case is before us on remand from the Oregon Supreme Court for reconsideration in light of State v. Leistiko, 352 Or 172, 282 P.3d 857, modified on recons, 352 Or 622, 292 P.3d 522 (2012). State v. Klontz, 353 Or 208, 297 P.3d 480 (2013). In our prior decision, State v. Klontz, 242 Or.App. 372, 256 P.3d 138 (2011) (Klontz I), we concluded that the trial court properly admitted under OEC 404(3) evidence of prior sexual offenses committed by the defendant in order "'to rebut defendant's claim that the victim[ ] had consented'" to sexual contact. Klontz I, 242 Or at 384 (quoting State v. Leistiko, 240 Or.App. 338, 345, 246 P.3d 82 (2011)). As explained below, we conclude that even assuming, without deciding, that the trial court erred in admitting the disputed evidence, any error had little likelihood of affecting the verdict. Accordingly, we affirm defendant's convictions.
We take the facts from our recitation in Klontz I. The evidence of the charged offenses of first-degree rape and furnishing alcohol to a minor were as follows:
"The victim, F, who was 18 years old, was introduced by her roommate to defendant, who at that time was a student at Corban University in Salem. In the spring of 2007, defendant contacted the victim through her MySpace page, indicating that he wanted to 'hang out' with her. The victim initially indicated that they might see each other again when he saw her roommate.
Defendant's responses indicated that he wanted to see the victim without the roommate being present. After a number of e-mail and text message exchanges, they agreed to go to a movie. The victim picked up defendant at Corban University and drove to the theater. Before they entered the theater, defendant indicated to the victim that he had brought alcohol to consume in the theater, and he proceeded to mix juice with liquor, which he put into water bottles and brought into the theater. During the movie, defendant encouraged the victim to drink and, when she finished her first bottle, he left briefly to obtain more alcohol for her.
"By the time they left the theater, the victim was intoxicated. She realized that she should not drive and asked defendant to drive her home, telling him that he could take her car afterwards to drive himself back to the college. Instead of driving the victim home, defendant drove her to the college and took her to his dorm room. Because of her level of intoxication, the victim did not remember the ride to the college or going to defendant's dorm room. While in defendant's dorm room, defendant suggested that they play cards and that, if the victim lost the game, she should kiss defendant. The victim told him, 'no, ' but he lifted her up by her shoulders and kissed her. The victim told him 'don't even try it' and 'don't do it again.' The victim then lost consciousness, and she woke up to find that the volume of the music had been turned up very loud, that she was on defendant's bed and that defendant was on top of her, having sexual intercourse with her. She struggled, but her shoulders were pinned to the bed and her hands were crossed over her chest, so she was unable to break free. She told defendant 'no, ' but he did not stop.
"When defendant finished, he threw the victim's pants at her, escorted her down the stairs, set her down outside of the dormitory, and left. The victim eventually found her car and attempted to drive away, but soon realized that she was too intoxicated to drive and had friends come to pick her up. When the victim returned home, her roommate questioned her about whether she had been raped. She replied that she had, and her roommate called the police."
Klontz I, 242 Or.App. at 374-75.
Defendant was charged with rape by forcible compulsion, and the theory of his defense was that the victim had consented to sexual intercourse. To rebut defendant's theory that the victim consented, the state offered evidence of five prior incidents of forcible sexual encounters that defendant had had with different victims. Because the admissibility of that "prior acts" evidence remains the focus of our consideration on remand, we necessarily reiterate the details of each of those five prior incidents, as set forth in Klontz I:
"With regard to the first encounter, B testified that, in the fall of 2007, she travelled with a friend to Corvallis to attend a party at defendant's house. When she arrived, defendant invited her to help herself to alcohol; defendant then left to obtain more alcohol. B drank a significant amount of alcohol during the ensuing hour and became very intoxicated. She passed out on a couch, awoke to find defendant leading her upstairs to his room, and then blacked out again. She regained consciousness briefly to find herself in defendant's bed, lost consciousness again and, when she regained consciousness, defendant was having sexual intercourse with her. She passed out again, then awoke to find another girl, C, tending to her, telling her that she was very sick, and trying to keep her from passing out again. B heard defendant telling C to 'take care of her.' B lost consciousness again, then regained consciousness to discover that defendant was touching her vagina and that C was still present and was telling defendant, 'I can't do this' or 'I won't do this.' B heard defendant and C engage in what sounded like a sexual encounter in the closet of the room. B then found her clothes and returned to the living room of the house, where she remained visibly upset until her friend was located, after which the friend drove her home. Defendant ultimately entered into a plea agreement that resulted in a conviction for attempted rape of B in exchange for the dismissal of more serious charges.
"With regard to the second encounter, C, the girl who had attempted to assist B as described above, testified that she had been drinking at the party and was intoxicated. At one point, she went to the bathroom and, as she was returning, heard B crying and hyperventilating in defendant's room. She had not known B before that evening. C was concerned that B was suffering from alcohol poisoning, so C went downstairs to find defendant. They returned to defendant's room, where B was still present, and defendant began kissing C. C attempted to push him off and said 'no.' Defendant pushed C into a closet, where she fell down, and defendant removed her pants while she continued to say 'no.' She explained that her initial objection was to defendant kissing her in B's presence. She further explained that she objected when defendant removed her pants and that she did not want to consent to 'anything below the waist, ' because she was a virgin. Defendant replied that he did not care. B had left the room while defendant and C were in the closet. Defendant brought C back to the bed and had forcible sexual intercourse with her. Defendant ultimately entered into a plea agreement that resulted in a conviction for attempted rape of C in exchange for the dismissal of more serious charges.
"With regard to the third encounter, S testified that, in the spring of 2007, defendant contacted her through her MySpace page. They had been slightly acquainted during high school but did not know each other well. S was a student at Oregon State University. Defendant told S that he would be attending a fraternity party there and he invited her to attend the party. S and defendant played drinking games along with other people attending the party, then defendant pulled S into a small room in the basement where they kissed. Defendant then reached under her skirt, which surprised her. They returned to the party and continued drinking, after which defendant pulled S out onto a sleeping porch. S was very intoxicated at that point. Defendant placed her on a bed, and she told him 'no.' Defendant gripped her hands so she could not move, then he lay down on top of her and had forcible sexual intercourse with her. S was treated at a hospital, but she did not report the attack to the police at that time. Again, defendant ultimately entered into a plea agreement that resulted in a conviction for attempted rape of S in exchange for the dismissal of more serious charges.
"With regard to the fourth encounter, R testified that, in the summer of 2006, when she was 18, she attended a party at the house of students at Western Oregon University in Monmouth, where R planned to attend school as a freshman in the fall. R was introduced to defendant at the party, and she played a drinking game with him and others. R was not an experienced drinker and soon became intoxicated. She went to the bathroom, and, as she came out, defendant was waiting for her. R wanted to find the friend with whom she had come to the party, and defendant offered to help find the friend. He led her into a nearby bedroom and shut the door. R told defendant that she needed to find her friend, and she tried to leave the room, but defendant told her to 'lie down and sober up.' R lay down on the floor. Defendant then lay down next to her and kissed her. She consented to the kissing, but when he tried to go further, she told him 'no' and struggled to stop him. He tore off her underwear and penetrated her vagina with his fingers, then attempted to penetrate her with his penis, but she struggled enough that he was unable to complete the rape. R's friend then came into the room, and defendant ceased the assault. R did not report the assault at the time, but she later came forward after she saw news of defendant's arrest on some of the other rape charges.
"Finally, with regard to the fifth encounter, P testified that she had grown up in the same town as defendant and that they became friends--but not boyfriend and girlfriend--while in middle school. Defendant made arrangements to 'hang out' with P and one of her friends after school one day when they were in the eighth grade. Defendant then contacted P and asked her not to bring her friend. Defendant and P played basketball and other games, then they went into defendant's bedroom to listen to music. Defendant began to tickle P, then brought out handcuffs and bound her to a bedpost while continuing to tickle her. P became concerned when defendant duct-taped her mouth shut and blindfolded her. Defendant proceeded to pull up P's shirt and bra, and pull down her pants. Defendant laughed and made fun of P as he was doing this. He then pulled out some of her pubic hair and inserted a telephone antenna into her vagina. Eventually, defendant released P and allowed her to use the bathroom, after which he asked her to perform oral sex. P refused and left defendant's house. P did not disclose the abuse at that time, but she disclosed it to a high school counselor four years later. P later made a pretext call to defendant on behalf of the police, in which he admitted some of the conduct. As a result, defendant was adjudicated within the juvenile system."
Id. at 376-78.
As noted in our initial consideration of this appeal, we held that the evidence of those prior incidents was admissible as relevant to whether the complainant in this case had (as defendant asserted) consented to intercourse. Id. at 385. In so holding, we relied on State v. Johnson, 340 Or 319, 131 P.3d 173, cert den, 549 U.S. 1079 (2006), as well as our own recent decisions in State v. Momeni, 234 Or.App. 193, 227 P.3d 1230, rev den, 348 Or 523 (2010), and Leistiko. In Johnson, as pertinent to our analysis, the Supreme Court had sustained the admission of evidence that the defendant, who was charged with aggravated murder in the course of rape that had involved drugging the victim, had previously drugged young women to the point of intoxication and then had sexual contact with them. 340 Or at 338-39. There was physical evidence that the defendant had had intercourse with the victim and that the victim had been drugged before her death. There was not, however, direct evidence that the "defendant's sexual contact with [the victim] was nonconsensual." Id. at 339 (footnote omitted). The Supreme Court in Johnson concluded that the prior bad acts evidence was "admissible for the noncharacter purpose of showing that [the victim] did not consent and, in fact, was incapable of consenting to the sexual contact." Id. at 340.
Shortly thereafter, in Momeni, we applied Johnson. There, the defendant had raised a defense that the alleged sexual contact between him and the victim, a tenant at his apartment complex, had been consensual, and the state, to counter that defense, introduced evidence that the defendant had had nonconsensual sexual contacts with two other tenants. 234 Or.App. at 195-97. The admissibility of that evidence was the focus of the appeal, and, relying on Johnson, we concluded that the evidence was admissible "because it has the tendency ...