Argued and Submitted July 30, 2013.
09122662C. Malheur County Circuit Court. Patricia A. Sullivan, Judge.
Daniel C. Bennett, Deputy Public Defender, argued the cause for appellant. With him on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Andrew M. Lavin, Assistant Attorney General, argued the cause for respondent. With him on the answering brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General. With him on the supplemental brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Nakamoto, Presiding Judge, and Haselton, Chief Judge, and Egan, Judge.[*]
[271 Or.App. 235] HASELTON, C. J.
Defendant was convicted of 21 criminal counts arising, principally, from his sexual conduct with three minor males. On appeal, he raises several assignments of error challenging various of those convictions that arose from conduct involving the complainant, C. In particular--and dispositively here--defendant asserts that the trial court
erroneously--during an offer of proof--preempted defense counsel from cross-examining C as to whether he had " voluntary sexual relations" with defendant. As described below, we conclude that the trial court erred in so precluding defense counsel's cross-examination of C and that that error was not harmless as to defendant's convictions on Count 1 (first-degree sodomy), Count 2 (first-degree sexual abuse), Counts 3 and 6 (second-degree sexual abuse), and Count 4 (third-degree sexual abuse). Accordingly, we reverse and remand as to those convictions, and otherwise affirm.
Because we address only the asserted errors relating to preclusion of cross-examination, we recount the circumstances pertaining to that preclusion and, consistently with our standard of review, the totality of the evidence material to assessing potential prejudice from that preclusion. See State v. Eckert, 220 Or.App. 274, 276, 185 P.3d 564, rev den, 345 Or. 175, 190 P.3d 1237 (2008) (in assessing " whether the erroneous admission of disputed evidence was harmless, we describe and review all pertinent portions of the record" ). Defendant's convictions involving C arose out of two incidents--one in early 2009 and the other in May 2009. It is undisputed that those incidents arose in the context of a preexisting relationship between defendant and C.
Beginning sometime in 2007 or 2008, defendant, who worked in a hair salon in Ontario, befriended C, who [271 Or.App. 236] was then a 16-year-old sophomore in high school. Every few days, C would stop by the salon to see defendant and talk. Sometimes, defendant gave C free haircuts and, occasionally, he would take C to the shopping mall in Boise, where he would pay for C's purchases. On other occasions, defendant also bought C food and alcohol and gave him marijuana.
The first predicate incident allegedly occurred in early 2009, when C was 17 years old. At trial, C recounted that incident as follows: Defendant kissed C, and C pushed him away, telling defendant that he " wasn't gay." Defendant then pulled down C's pants and touched C's penis; defendant also grabbed C's hand and placed it on defendant's penis. Defendant then told C to " turn over" and, when C refused, defendant " flipped" C over, grabbed the back of his neck, and pushed his face down into the couch. Defendant inserted his penis into C's anus and ejaculated. At some point, C " yelled" at defendant to " stop." Afterward, defendant told C that he would harm C's friends and family if he reported the incident.
The second charged incident allegedly occurred in May 2009 at defendant's home. C testified that defendant had invited him and one of his friends to defendant's house and had given them both alcohol and marijuana. Then, according to C, defendant had performed oral sex on him and inserted his penis into C's anus. C testified that he thought to himself that he " just wanted it to get over with." Afterward, C spent the night at defendant's house.
In addition to C's account of the two charged incidents, the state, by way of further direct examination of C during its case-in-chief, presented other testimony from C in which he described numerous other sexual contacts with defendant. For example, when asked on direct examination if there were times that defendant touched him " inappropriately" after giving C " drugs and alcohol," C replied, " Yes" and explained that, after getting high and drinking, " [defendant] would give me and [my friend] [oral sex] and have us have sex with him and he would have sex with me." C also testified that he and
defendant would " get high and [271 Or.App. 237] go cruise around [in defendant's car] and *** [defendant] would have one of us drive and [defendant] would give [oral sex] to the person who was driving." C also testified that, other than the first charged incident, sexual activity had happened " three or four times" at C's house.
Sometime shortly after the second alleged incident, C reported the abuse to his counselor at a substance abuse treatment facility. Following C's report, defendant was charged with, inter alia, one count of first-degree sodomy, ORS 163.405(1)(a);  one count of first-degree sexual abuse, ORS 163.427(1)(a)(B);  two counts of second-degree sexual abuse, ORS 163.425(1)(a);  and one count of third-degree sexual abuse, ORS 163.415(1)(a). With respect to the first-degree sodomy and first-degree sexual abuse charges, the state was required to prove that defendant subjected C to forcible compulsion. With respect to the second- and third-degree sexual abuse charges, the state was required to prove that C did not consent to the charged sexual contact. Because [271 Or.App. 238] C was under the age of 18, the requisite lack of consent could be established by proof of either lack of actual consent or inability to consent due to age ( viz., being under the age of 18). However, because C was over the age of 16, defendant could negate inability to consent due to age through proof that he " reasonably believed [C] to be above [the age of 18] at the time of the alleged offense." ORS 163.325(2).
At trial, defendant advanced a hybrid defense with two components: (1) C voluntarily participated in the charged sexual contact, negating forcible compulsion with respect to first-degree sodomy and first-degree sexual abuse, as well as lack of actual consent with respect to second- and third-degree sexual abuse; and (2) defendant believed that C was over the age of 18 and that mistaken belief was reasonable, negating inability to consent due to age with respect to second- and third-degree sexual abuse. In support of that defense, defendant offered, inter alia, his own testimony as to both actual consent and mistake of age. In addition, the defense also attempted, through cross-examination of C, to elicit an admission from C that he had voluntarily engaged in sexual conduct with defendant.
That putative cross-examination--which occurred in the context of a defense offer of proof--is the focus of our review. After C testified on direct examination, defense counsel then cross-examined him on the details of the charged incidents, and C adhered to his account that he had resisted those sexual ...