Submitted May 31, 2013
Lincoln County Circuit Court 084092. Thomas O. Branford, Judge.
Peter Gartlan, Chief Defender, and Eric Johansen, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and David B. Thompson, Senior Assistant Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[266 Or.App. 750] ARMSTRONG, P. J.
Defendant appeals a judgment of conviction for multiple counts of first-degree sexual abuse, first-degree rape, second-degree unlawful sexual penetration, second-degree sodomy, and second-degree sexual abuse arising from abuse of his children. Defendant raises four assignments of error, challenging the trial court's denial of his mistrial motion, the calculation of his sentence, and the trial court's instructions to the jury regarding--and its acceptance of--a nonunanimous jury verdict. For the reasons that follow, we affirm.
Because defendant was found guilty, we state the facts in the light most favorable to the state. State v. Zweigart, 344 Or. 619, 622, 188 P.3d 242 (2008). We first set out the facts generally supporting defendant's convictions, supplementing them as necessary in our discussion of defendant's specific assignments of error.
Defendant married in 1996; the same year, defendant and his wife became licensed foster parents and began providing care for children. The couple separated in 2007, several months before the abuse underlying defendant's convictions came to light. Over the course of their marriage, defendant and his wife fostered " close to 100" children, eight of whom the couple adopted. Over that span, the couple would regularly have six or seven children in their home at a time.
Defendant's wife first learned that defendant had sexually abused their children in early 2007, after defendant had moved out of the family home. Evidence of the abuse surfaced during an argument with their child K, who had just turned 17. K told defendant's wife that he intended to move out of their home, and a physical struggle ensued. During the struggle, K revealed that defendant had sexually abused him, saying something to the effect of " you let your sick husband molest all of us children" and " [y]ou let that son of a bitch rape me." Thereafter, in an attempt to verify K's allegation, defendant's wife called another of her children, J. At that time, J, who is cognitively impaired, had recently turned 18 and was living in an adult group home. Defendant's wife asked J if defendant had abused her, and J confirmed that he had.
[266 Or.App. 751] Defendant's wife then arranged to meet defendant to confront him about the allegations. During that meeting, defendant admitted
to abusing J and explained that J " came on to" him. A third child, M, who was living with defendant, was present at that meeting, and defendant's wife insisted that defendant tell M what he had done. Defendant then told M that " he [had] sexually abused [K] and [J] and that he was really sorry." Ultimately the allegations reached the principal of K's school, and the principal immediately reported the abuse to a child-abuse-reporting hotline. Subsequently, defendant quit his job and left the state, ultimately settling with his mother in Long Beach, California.
Miller, a detective at the Lincoln County Sheriff's Office, was assigned to investigate the sexual-abuse allegations against defendant. Miller first attempted to interview defendant at his former Oregon home--a local trailer park--but discovered that defendant's trailer was gone. Miller then met with defendant's wife and interviewed K and M. Because Miller was concerned about J's cognitive impairment, Miller did not interview J; instead, she arranged to have J interviewed at the Children's Advocacy Center, an organization that counsels and interviews child victims of abuse. Miller also arranged interviews for defendant's younger children at the Children's Advocacy Center, as well as a number of children who had been fostered in defendant's home at various times. Eventually, Miller was able to reach defendant by telephone. During the call, defendant adamantly denied any wrongdoing and explained that he had left the area to care for his ailing mother.
In a 17-count indictment, defendant was charged with five counts of first-degree sexual abuse, ORS 163.427; three counts of first-degree rape, ORS 163.375; three counts of first-degree unlawful sexual penetration, ORS 163.411; three counts of second-degree sodomy, ORS 163.395; one count of second-degree sexual abuse, ORS 163.425; and two counts of coercion, ORS 163.275. The charges stemmed from defendant's abuse of J and K, as well as two younger children. Defendant was arrested and held in the Lincoln County jail pending trial. Thereafter, Maeurer, an inmate at the jail, contacted Miller and explained that he had met and befriended defendant while both were incarcerated and [266 Or.App. 752] that defendant had made a variety of admissions to him about defendant's abuse of his children.
Defendant pleaded not guilty to the charges and proceeded to a jury trial, which was conducted over nine weeks from April to June 2010. At trial, the state elicited extensive testimony regarding the certification and operation of foster homes in general, as well as specifics regarding the circumstances of defendant's home. Both J and K testified regarding defendant's sexual abuse of them, and the recorded interview of J conducted at the Children's Advocacy Center was played for the jury. Maeurer also testified about his conversations with defendant in jail and related a number of graphic statements that he attributed to defendant.
The jury ultimately convicted defendant of two counts of first-degree sexual abuse, two counts of first-degree rape, one count of second-degree unlawful sexual penetration, one count of second-degree sodomy, and one count of second-degree sexual abuse for conduct involving J and K. The jury failed to reach a verdict on three counts of first-degree sexual abuse stemming from defendant's alleged abuse of the two other children, and the state dismissed those charges without prejudice. The state had dismissed the remaining charges against defendant during trial. The trial court sentenced defendant to 536 months' imprisonment, followed by lifetime post-prison supervision.
Defendant appeals, raising four assignments of error. We reject two of defendant's assignments--each relating to nonunanimous jury verdicts--without written discussion. In his remaining two assignments of error, defendant challenges the trial court's denial of a mistrial motion that defendant made following the admission of improper testimony by defendant's wife and the trial court's calculation of his sentence for his conviction of second-degree sexual abuse. For the reasons that follow, we affirm.
We turn first to the denial of defendant's mistrial motion. During redirect examination of defendant's wife at trial, the state inquired whether the family had ever been investigated by the Department of Human
Services (DHS) for violations related to foster care. Defendant's wife testified that there had been " a couple over the years" but that [266 Or.App. 753] " nothing was founded." She then recounted two incidents that ...