Submitted on January 17, 2013.
Washington County Circuit Court C091802CR Rick Knapp, Judge.
Peter Gartlan, Chief Defender, and Daniel C. Bennett, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Patrick M. Ebbett, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Nakamoto, Judge, and De Muniz, Senior Judge.
DE MUNIZ, S. J.
Defendant appeals his convictions for unlawful distribution of a controlled substance to a minor, ORS 475.906; unlawful possession of cocaine, ORS 475.884; attempted sexual abuse in the second degree, ORS 163.425; sexual abuse in the third degree, ORS 163.415; and driving under the influence of intoxicants, ORS 813.010. Defendant assigns the following errors to the trial court: (1) the trial court erred by imposing a "chapter 163" assessment for his conviction of attempted sexual abuse in the second degree; (2) the trial court erred in denying defendant's requested curative instruction after the prosecutor purported to describe to jurors during voir dire what the prosecutor contended was the law of Iran or Saudi Arabia in a rape case; (3) the trial court erred in instructing the jury that it could find defendant guilty by a nonunanimous verdict; and (4) the trial court erred in convicting defendant on two counts by nonunanimous jury verdicts. We conclude that the trial court's failure to give defendant's proferred curative instruction to the jury was an abuse of discretion requiring that we reverse defendant's convictions.
The facts are as follows. During the afternoon of June 8, 2009, defendant met with high school students L and H. Defendant knew L through L's internship at the Home Depot where defendant worked. Defendant gave L $120 to purchase cocaine from L's drug dealer. After L purchased the cocaine, defendant drove the group to defendant's apartment, where the three used the cocaine.
While at the apartment, defendant began showing H and L pornographic websites he claimed were owned by his cousins. Defendant locked the door when L stepped outside to smoke a cigarette. He then told H that he found her attractive and that he owned several strip clubs, and offered to obtain a false ID card for her so she could work at the clubs. Defendant then engaged in "sexual talk" with H and requested that she submit to cunnilingus. Defendant also asked H if he could touch her breast. When she refused, defendant grabbed H's breast for a few seconds. The contact ended when L began knocking on the door. Defendant and H went outside to meet L. H and L insisted defendant drive them home.
Later, police officers visited defendant at his Home Depot work site. The officers informed defendant that they had received a report that defendant had engaged in inappropriate conduct with minors. Defendant acknowledged knowing L but denied knowing H. Although defendant initially denied using cocaine, he eventually admitted to using the drug, and admitted that H had been in his vehicle when L had purchased the cocaine. Defendant denied taking L and H to his apartment.
During voir dire, the prosecutor engaged potential jurors in a discussion about their views regarding the prosecution calling only one witness to prove a fact. The prosecutor contrasted for the potential jurors a scenario that he asserted "was out of either Iran or Saudi Arabia" where an alleged rape victim was required to produce five male witnesses to prove the rape. One juror purported to correct the prosecutor, stating that the prosecutor was describing Sharia law, a religious law, not the legal system of a country.
After the jury was sworn, and outside of the jury's presence, defense counsel requested a curative instruction regarding the prosecutor's comments on Sharia law. Defense counsel asserted that the prosecution's comments could bias the jury against defendant because defendant is Iranian and Muslim. The prosecutor stated that he had used this example when speaking with potential jurors in every sex abuse case he had tried in the past few years. Defense counsel requested that the jury be instructed not to use defendant's race, religion, or ethnicity against him in reaching a verdict, and that the prosecutor's reference to Sharia law was merely an illustration of the difference between legal systems. The court refused to give the proposed instruction, commenting that such an instruction was unnecessary as the jury did not know defendant's ethnicity or religion. According to the court, as far as the jury was concerned, defendant "could be an American, " and "could be just as much a Christian as he is a Muslim."
A jury found defendant guilty of the unlawful distribution of a controlled substance to a minor, ORS 475.906; unlawful possession of cocaine, ORS 475.884; attempted sexual abuse in the second degree, ORS 163.425; sexual abuse in the third degree, ORS 163.415; and driving under the influence of intoxicants, ORS 813.010.As noted, defendant assigns error to the trial court's failure to provide a curative instruction to the jury in response to the prosecutor's comments about Sharia law. Defendant argues that he was deprived of his right to a fair trial when the prosecutor improperly focused the jurors' attention on inflammatory issues regarding the prosecution of the crime of rape in Iran or Saudi Arabia. According to defendant, the prosecutor's comments and related questions were not relevant to a determination of juror qualification, and could have been intended to elicit an inappropriate emotional response directed toward defendant based on his ancestry and religion. Because the trial court failed to provide the curative instruction requested by defendant, defendant contends that he is entitled to a new trial.
The state responds with two arguments: (1) the issue is not preserved because defendant did not object immediately during the prosecutor's comments, and (2) if the issue was preserved, the trial court did not abuse its discretion in refusing to provide a curative instruction. In our view, defendant's request for the curative instruction ...