Argued and submitted on February 21, 2013.
Morrow County Circuit Court 10CF012, Christopher R. Brauer, Judge.
Kristin A. Carveth, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Jeff J. Payne, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Before Ortega, Presiding Judge, and Sercombe, Judge, and De Muniz, Senior Judge.
DE MUNIZ, S. J.
In this criminal case, we review the trial court's ruling admitting evidence of defendant's prior conviction for sexual abuse. Defendant was charged with one count of first-degree rape, ORS 163.375, one count of first-degree sodomy, ORS 163.405, and two counts of second-degree sexual abuse, ORS 163.425. To prove that the victim, P, had not consented to defendant's sexual advances, the state offered, and the trial court admitted, evidence that, on a prior occasion, defendant had engaged in sexual intercourse with another woman, S, without her consent. The jury found defendant guilty of first-degree sodomy and second-degree sexual abuse, and acquitted him on the first-degree rape and the other second-degree sexual abuse counts. For the reasons that follow, we reverse the judgment of the trial court and remand for further proceedings.
According to P's testimony at trial, defendant and P began a sexual relationship in late April 2010. At the time, both defendant and P were married to other people, and their two families socialized together. On May 14, 2010, defendant and his daughter attended a barbecue at P's home in Kennewick, Washington. P testified that, at the barbecue, defendant was intoxicated and became upset when P's husband acted affectionately toward P. According to P, defendant began punching walls and pounding on the balcony, and, when P's husband was not present, defendant told P that he did not want her husband touching her, that she was "his pussy, " and that she was "going * * * nowhere."
The next morning, P drove defendant and his daughter to their home in Irrigon, Oregon. According to P, defendant was agitated during the drive and called P offensive names. P eventually stopped the car at the Irrigon Marina, at which point defendant wanted to have sexual intercourse with P, but P refused because defendant's daughter was in the car. P testified that defendant continued to call P derogatory names, demanded that P's husband not touch her, and ordered P to say aloud that she "was [defendant's] pussy now." Upon arriving at defendant's home, defendant asked if he could return with P to her home because he wanted to spend the day with her. P was hesitant, because, as she explained, she "wanted nothing to do with him anymore." However, when defendant became angry, P complied with defendant's request.
On the return drive, P attempted to end her relationship with defendant and suggested that they "just go back to [their] families." According to P, she became frightened when defendant threatened to tell their spouses about the affair. She again stopped at the Irrigon Marina and parked the car. P then consented to have sexual intercourse with defendant, believing that, "if [they] did it * * * one last time, " defendant would not tell her husband about her relationship with defendant. Shortly after they began having sexual intercourse, defendant asked P to "turn around and do it anally." P agreed, but, fearing that it might hurt, she asked, "Once I tell you to stop, will you stop?"
Defendant responded, "Yes."
P testified that, almost immediately after they began having anal intercourse, P told defendant to stop, but defendant refused. P attempted to push herself off of him, but defendant "grabbed [her] hands" and "put them on [her] hips, " and then "picked [her] up and * * * slammed [her] down" on his penis. Defendant "continued to do that, " even though P was crying and yelling at him to stop. P scratched defendant and tried to push him away, but defendant did not stop until P eventually lost control of her bowels. At that point, defendant ordered P to turn around and proceeded to have vaginal intercourse with her. According to P, defendant refused to allow her to leave "until he was done."
After defendant completed the act, P asked defendant to leave her car and told him to walk home. Defendant complied, and P left him at the marina. Later, as P was driving home, defendant called her cell phone numerous times. Defendant apologized and explained that he was angry because he knew that that would be "the last time" that they would be together.
P testified that she experienced pain and anal bleeding for "[a] couple of days, almost a week" after the incident. On May 16, 2010, the day after the incident, P told her husband about her affair with defendant, and, the following morning, she reported the incident to the police. On May 18, 2010, P went to the hospital and was examined by Dr. Forsythe. P reported pelvic pain and vaginal and rectal bleeding. Forsythe observed a "small amount of blood * * * near the entrance to the cervix." Based ...