STATE OF OREGON. Plaintiff-Respondent,
VERNON LOUIS WOODALL, Defendant-Appellant.
Submitted on April 08, 2013.
Washington County Circuit Court C091895CR Marco Hernandez, Judge.
James N. Varner filed the brief for appellant.
Mary H. Williams, Deputy Attorney General, Anna M. Joyce, Solicitor General, and Rebecca M. Johansen, Assistant Attorney General, filed the brief for respondent.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Duncan, Judge.
SCHUMAN, P. J.
For conduct over a period of five years involving three victims, defendant was tried for a variety of sex crimes--first-degree rape, second-degree sexual abuse, third-degree sexual abuse, attempted sexual abuse, first-degree sodomy--as well as for possession of various controlled substances and delivering a controlled substance to a minor. He demurred to the second-degree sexual abuse and attempted second-degree sexual abuse charges on the ground that the relevant statute imposed penalties that were not "proportioned to the offense, " in violation of Article I, section 16, of the Oregon Constitution. The court denied the demurrer and a trial ensued. During trial, two irregularities occurred, resulting in jurors learning that defendant had a prior sex offense conviction. Defendant moved for a mistrial on both occasions. The court denied the motions. The jury subsequently returned verdicts of guilty. Defendant appeals, assigning error to the denial of his demurrer and of his two motions for a mistrial. We affirm.
We begin with defendant's first assignment of error, in which he maintains that the court erred in denying his demurrer. We review the denial of a demurrer for errors of law. State v. Cervantes, 232 Or.App. 567, 580, 223 P.3d 425 (2009). Defendant's argument focuses on the charges of second-degree sexual abuse and attempted second-degree sexual abuse, ORS 163.425 (2007). He contends that the statute violates Article I, section 16, which requires that "all penalties shall be proportioned to the offense." That is so, he contends, because a sentence is disproportionate if it is more severe than a sentence that may be imposed under related statutes for other, more serious criminal activity of the same type. State v. Rodriguez/Buck, 347 Or 46, 62, 217 P.3d 659 (2009); State v. Simonson, 243 Or.App. 535, 540, 259 P.3d 962 (2011), rev den, 353 Or 788 (2013). Second-degree sexual abuse, the argument continues, has a "crime seriousness score"--a factor in determining the length of sentences--of seven, OAR 213-017-0005(5), while third-degree rape, ORS 163.355--a more serious crime--has a crime seriousness score of six, OAR 213-017-0006(20). Thus, defendant argues, an adult who has intercourse with a 14-year-old can receive a less severe sentence than an adult who has intercourse with a 17-year-old.
The short but sufficient answer to defendant's argument is that, although the potential sentences for second-degree sexual abuse and attempted second-degree sexual abuse may be disproportionate in the way that defendant argues, see Simonson, 243 Or.App. at 541-42 (so holding), the disproportionality problem "is not in the statutes [defining the two crimes] themselves, but in the sentencing guidelines, which provide 'crime seriousness scores' for each of those crimes." Id. at 540. The appropriate remedy, therefore, is to vacate the sentences and remand for resentencing, id. at 542, and not to dismiss the charges or declare the statute unconstitutional. See State v. Ferrell, 315 Or 213, 224, 843 P.2d 939 (1992) ("[W]here a defect related to an allegation * * * does not affect the validity of the conviction on any properly alleged underlying offense, the appropriate remedy is to affirm the conviction on the underlying offense and to remand for resentencing."). Here, defendant concededly "did not separately challenge the sentences imposed" by the trial court, nor does he do so on appeal. The trial court did not err in denying defendant's demurrer.
In his second and third assignments of error, defendant argues that, on two occasions, the court erred in denying his motion for a mistrial. The first involved a statement elicited by the defense in front of the entire jury, and the second involved comments overheard by two jurors in the courthouse lunchroom. Both statements indicated that defendant was a registered sex offender.
Before trial, defendant moved to exclude any reference to "evidence Mr. Woodall was required to register as a sex offender" and "evidence Mr. Woodall failed to register as a sex offender[.]" The court deferred ruling on the motions, deciding instead to address them if they were to arise during the trial. However, while cross-examining a police officer about investigatory procedures, defense counsel asked the officer to read from a document, Defendant's Exhibit 318, which reported a conversation between a 9-1-1 dispatcher and one of the victims. Apparently, however, counsel had forgotten that the report contained a reference to one of the victims alleging that defendant was a "registered sex offender." As soon as that portion of the document was read, defendant interrupted and asked the court if he could "take a moment." After a brief discussion, the court adjourned for the remainder of the day so counsel could consider his options. The next morning, counsel apologized to the court for inadvertently having introduced the very evidence he had fought to exclude. He then discussed the court's range of possible remedies from, at one extreme, a curative instruction to, at the other extreme, granting a mistrial. Counsel then presented the court with a motion for a mistrial. The state, for its part, emphasized the difficulties that retrying the case would cause. Specifically, the state argued that some of its key witnesses were suffering from substance abuse problems and that there was no guarantee that they would be available to testify in the future should the motion for a mistrial be granted.
In deciding defendant's motion, the court framed the question before it as follows: "Given the information that was received in court at the proffer of the defense, which I think is the important consideration, can everybody still get a fair trial in this case?" The court concluded that both defendant and the state could still get a fair trial. The court then remarked that the state
"convinced me that their witnesses have pretty significant difficulties in maintaining stability long enough to get through this long trial that they're expected to get through[.] * * * They all want to go back and get on with their own lives, and I do find that granting a mistrial for the State would cause a substantial difficulty in their ability to continue with this trial."
The court decided instead that the relevant report and any testimony referring to it would be stricken from the record. The court then instructed the jury to disregard the officer's testimony about the contents of Exhibit 318 ...