Argued and Submitted December 20, 2013
Lane County Circuit Court 201115685. Debra K. Vogt, Judge.
Robin A. Jones, Senior Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Peenesh Shah, Senior Assistant Attorney General, argued the cause for respondent. On the briefs were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Mary H. Williams, Deputy Attorney General.
Before Ortega, Presiding Judge, and DeVore, Judge, and De Muniz, Senior Judge.
[269 Or.App. 534] ORTEGA, P. J.
Defendant appeals a judgment of conviction for first-degree rape under ORS 163.375 (where a person penetrates another person incapacitated by reason of physical helplessness). He raises three assignments of error; we write only to discuss the first two and reject the third without published discussion. Defendant challenges the trial court's denial of his motion and offer of proof under OEC 412 (evidence of past sexual behavior is inadmissible unless it falls under an exception) to allow evidence of the victim's prior sexual behavior and nonsexual behavior while intoxicated. In defendant's view, the proffered evidence was relevant to the state's basis for the rape charge, which was that the victim was unable to consent to defendant's penetration of her because she was unconscious or passed out from drinking too much. Specifically, the evidence consisted of testimony from the victim's friends that related (1) instances in which the victim would get drunk, have sex, and then not remember having done so and (2) other times where the victim would get drunk and then not recall other kinds of conduct not involving sex. For the reasons explained below, we conclude that the trial court did not error in denying defendant's motion to allow the evidence of the victim's prior behavior and, accordingly, we affirm.
A. Relevant Facts
At trial, the victim's friend, Shannon, described the sexual assault and surrounding
circumstances. In July 2011, Shannon and the victim celebrated the victim's birthday. They drank heavily before visiting some bars in Eugene, where they continued to drink. At about 3:00 a.m., they eventually found their way to the apartment of another friend, Spriggs. Shannon and the victim expected a friend to arrive and take them to another friend's house, but they fell asleep together on a mattress in the living room. Before they fell asleep, Shannon recalled seeing Spriggs and defendant talking together by a window on the opposite side of the living room. Later, another friend, Jason, arrived, and Shannon woke, noticed that the victim was still sleeping on the mattress, and went to use the bathroom. After five to [269 Or.App. 535] 10 minutes, Jason went to the bathroom to alert Shannon that the victim was " having sex." Shannon testified that, when she returned to the living room, she observed defendant on top of the victim, penetrating her. Shannon asked defendant whether the victim had " [said he] could do that." Defendant replied, " Uh huh." Shannon recalled that she was surprised because the victim had indicated when she was sober that she did not want to have sex with defendant. On the other hand, the victim had told Shannon that she wanted to have " birthday sex."
Shannon observed that as defendant penetrated the victim, the victim's eyes were " a little bit open." Shannon testified that she " couldn't honestly say [whether the victim] was sleeping or not" because she had seen the victim look like that before when the victim was awake but drunk. Shannon heard the victim moaning and initially thought that the victim was consenting to defendant's actions. But believing that the victim would not have had sex with defendant sober, Shannon pulled on the victim's arm to see if the victim was indeed aware of what was happening to her. The victim did not respond to Shannon pulling her arm. Shannon testified that she did not believe that the victim was asleep or passed out but that the victim was " very, very out of it." Shannon went to get Jason and, when they returned, defendant had fled. The victim did not respond when Shannon slapped or lightly tapped the victim's face. Shannon pulled the victim off the mattress, and the victim stood up, walked into a bedroom, and lay down without talking to Shannon. Shannon then left the apartment.
Gilhuber, a police officer who had interviewed Shannon over the phone one or two days after the incident, testified to Shannon's account of events in that interview, which differed in some significant respects from Shannon's trial testimony. Referring to his report from that interview, Gilhuber testified that Shannon reported that she initially believed that the victim was awake when defendant was penetrating her because the victim was moaning. However, according to Gilhuber's report, Shannon slapped the victim a couple of times, pulled her arm, and after a closer look, she determined that the victim was passed out because her eyes were closed and she appeared to be sleeping. Gilhuber also [269 Or.App. 536] testified that Shannon also reported having asked defendant, " What the f[uc]k are you doing?" After Shannon went to get Jason to help get defendant off of the victim and after defendant had left, according to Gilhuber, Shannon related that she again tried to move the victim, tapped her numerous times, and then, unable to wake her, proceeded to grab her by the ankle and jerk her off the mattress. At that point, the victim awakened slightly to the point where she got herself to the bed and returned to being completely passed out.
Shannon returned the next morning and recounted to the victim what had happened to her the night before. The victim testified that the last things she remembered about the previous evening were eating after leaving the bar and being at Spriggs's apartment, but after that she was " [j]ust in and out throughout the night." She further testified that her tampon was missing when she woke up and that something " didn't feel right." She felt sore, as if she had been penetrated. The victim testified:
" Then [Shannon] came in and asked me if I remembered what had happened the night before. I told her, no, because I was really drunk and she said, well, me and Jason walked out here and saw [defendant] having sex with you. I looked at her and I said, 'What?' She goes, yes, you were un
conscious, [victim], and from there on, I was pretty emotional."
The victim also testified that she had turned down defendant's advances before and never told him ...