Argued and Submitted January 21, 2014.
11C51417. Marion County Circuit Court. Claudia M. Burton, Judge.
Robin A. Jones, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Ryan Kahn, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Duncan, Presiding Judge, and Nakamoto, Judge, and DeVore, Judge.
[272 Or.App. 392] NAKAMOTO, J.
Defendant appeals a judgment of conviction for five counts of sodomy in the first degree (Counts 1-5), ORS 163.045, and two counts of sexual abuse in the first degree (Counts 6 and 7), ORS 163.427. Defendant was charged in a single, multiple-count indictment in 2011, after allegations came to light that he had repeatedly sodomized and sexually abused his daughter, W, for years when she was a minor. Those allegations were the basis for Counts 1 through 6. While investigating those allegations, police learned that a second relative, C, had previously accused defendant of sexually abusing her on one occasion in 1999, when she was a minor. That allegation was the basis for Count 7.
Defendant raises seven assignments of error. In three of those, he argues that the trial court should have granted his pretrial motions to, one, sever the charges related to each victim and, two, exclude the entirety of a tape-recorded phone conversation between W and defendant or, alternatively, specific statements made in that recording. In the remaining four assignments of error, defendant challenges various rulings by the court during trial regarding the prosecutor's attempts to elicit or exploit evidence that defendant was a methamphetamine addict at the time of the conduct charged in the indictment. In two of those assignments, defendant contends that the trial court erroneously denied his motion for a mistrial. For the reasons explained below, we agree with defendant that the trial court should have granted a mistrial, and we reverse and remand for a new trial. We also address defendant's challenge to the court's denial of his motion to sever, because that ruling will likely affect any retrial on remand. However,
we do not reach defendant's other assignments of error to the court's evidentiary rulings before and during trial, because the evidentiary issues may be litigated differently on remand.
I. MOTION TO SEVER
We begin by relating the allegations of W and of C, which are relevant to defendant's pretrial motion to sever the count alleging that defendant sexually abused C. W, the adult daughter of defendant, testified at trial that, beginning [272 Or.App. 393] when she was five years old, defendant repeatedly and regularly sexually abused and sodomized her. When W was 10 years old, her parents separated, and defendant moved out of the house, although he continued to visit the home frequently and to sexually abuse W. The abuse ceased one night, when W was around 12 years old, after she told defendant to stop. W then avoided contact with defendant, speaking to him only once or twice over the next few years and then having no contact with him for the following six to seven years. During that time, W never told anybody about the abuse.
In 2010, several of W's family members began encouraging her to reconnect with defendant. W agreed to attend defendant's birthday party and later saw defendant at another family function that year. Then, in 2011, when W was 22 years old, she revealed to her mother that defendant had sexually abused her when she was a child.
Upon learning of the alleged abuse, W's mother called the Marion County Sheriff's Office, which began investigating W's allegations. The investigation included a " pretext" phone call from W to defendant, which a deputy sheriff recorded. During the call, W confronted defendant, asking him why he had touched her and whether he remembered doing so. She referred to " everything that happened, from the time I can remember until I was about 12." She also used the word " molested" in place of " touched" once during the call. For his part, defendant repeatedly admitted to past drug use and being a bad father generally, but many of his answers were nonresponsive to the questions, and defendant at various points remained silent in response to W's questions. During the 42-minute call, defendant neither denied nor explicitly admitted that he had sexually abused W.
The day after the pretext call, a sheriff's detective, Wilkinson, contacted and interviewed defendant. When confronted with W's allegations, defendant denied ever having sexually abused her.
[272 Or.App. 394] Approximately two weeks later, the police contacted and interviewed C. C is the daughter of W's maternal grandmother but is close in age to W. In the course of investigating W's allegations, the police had learned that C had accused defendant in 1999 of sexually abusing her one night that year. After defendant separated from W's mother, and while the alleged sexual abuse of W was still ongoing, defendant stayed for a period of time with C and her mother when C was about nine years old. According to C's account of the incident, C's mother sent C to bed early, and defendant accompanied C up to her bedroom. C asked defendant to stay with her until she fell asleep. C woke up the next morning in her bed next to defendant. Defendant then began touching her buttocks and vagina. After a few seconds, C kneed defendant and told him to stop. C then ran downstairs and told her mother, who immediately kicked defendant out of the house. Neither C nor her mother reported the incident to police. After that, C never saw defendant again, save for one night, briefly, several years after the alleged abuse.
Defendant also denied sexually abusing C. According to defendant's testimony at trial, on the morning that C accused him of sexually abusing her, she had actually rolled over onto his arm, and he awoke with his arm pinned underneath her torso. He pulled his arm away and went back to sleep, only to be
" awakened a little bit later when [C's mother] is telling me to get the hell out."
As noted above, defendant was ultimately charged with five counts of sodomy in the first degree, ORS 163.045, and one count of sexual abuse in the first degree, ORS 163.427, based on W's allegations, as well as an additional count of sexual abuse in the first degree based on C's allegations. Just before trial, defendant filed a motion to sever the lone count stemming from C's allegations. In [272 Or.App. 395] defendant's seventh assignment of error, he contends that the trial court erred in denying his motion to sever. Because the issue affects any retrial of defendant, we address the assignment.
Defendant argued to the trial court that severance was warranted under ORS 132.560(3), which provides that," [i]f it appears, upon motion, that the state or defendant is substantially prejudiced by a joinder of offenses * * *, the court may order an election or separate trials of counts," because he would be substantially prejudiced by joinder. Defendant first argued that he would be prejudiced because evidence regarding the separate victims would not be admissible in separate trials under OEC 404(3) and OEC 403. Further, defendant asserted, because the two victims were close in age at the time of the charged offenses and because of the prejudicial nature of child sexual abuse evidence, a jury hearing allegations from two victims would be highly likely to conclude that defendant had a propensity to commit sex crimes against minor females.
Defendant also argued that the evidence regarding the victims was not " sufficiently simple and distinct to mitigate" the potential dangers that would result from erroneous joinder. State v. Norkeveck, 214 Or.App. 553, 560, 168 P.3d 265 (2007), rev den, 344 Or. 558, 187 P.3d 219 (2008). Defendant argued, lastly, that a joint trial would severely curtail his " fifth amendment privilege" by forcing him to choose between testifying with regard to both victims or neither of them. Defendant stated that he wished to preserve his right to testify regarding C's allegations while preserving his right to remain silent regarding W's allegations. In defendant's view, an instruction directing the jury to ignore his silence as to one victim [272 Or.App. 396] while he addressed the allegations of the other would put him in " the awkward position" of effectively having to comment on his own silence.
The state responded that the evidence as to both of the victims was sufficiently interrelated so as to require each victim's testimony at a trial for defendant's alleged conduct against the other victim. According to the state, the evidence would show that, while defendant was molesting W, he was grooming his second victim, C. The two victims later spoke with each other about the abuse, and W was eventually the one who first informed the police about defendant's alleged abuse of C. The state also contended that any harm to defendant resulting from defendant's having to elect whether to testify in a joined trial did not constitute substantial prejudice under ORS 132.560(3). The state pointed out that, if defendant could " craft his scope" of testimony so that he was " talking about one victim and not the other," then the state would be " limited to that" on cross-examination, which would be " curative of any * * * specialized prejudice that the Court may find."
The trial court denied defendant's motion to sever. The court agreed with the state that defendant could control the scope of his testimony, thereby limiting the scope of the state's questioning of defendant. On that note, the court instructed the prosecutor that, if defendant testified in direct examination as to one victim in a way that the state concluded enabled it to then cross-examine defendant regarding the other victim, the prosecutor was to consult the court before proceeding. The court also highlighted that the jury would hear the standard instruction about defendant's right to remain silent, and offered to modify that instruction, if requested by defendant, to clarify that defendant had an absolute right not to testify about the other case.
" We review a trial court's determination that a defendant failed to demonstrate the existence of substantial prejudice for errors of law based on 'the record at the time of the court's ruling on defendant's motion to sever.'" State v. Gensler, 266 Or.App. 1, 8, 337 P.3d 890 (2014), rev den, 356 Or. 690, 344 P.3d 1112 (2015) (quoting State v. Tidwell, 259 Or.App. 152, 156, [272 Or.App. 397] 313 P.3d 345 (2013), rev den, 355 Or. 142, 326 P.3d 1207 (2014)). " Whether the joinder of charges substantially prejudiced a particular defendant involves a case-specific assessment of the charges and the facts alleged to support them." Tidwell, 259 Or.App. at 154. " The reviewing court must be able to determine from the record that the trial court engaged in the required prejudice analysis." State v. Luers, 211 Or.App. 34, 44, 153 P.3d 688, adh'd to as modified on recons, 213 Or.App. 389, 160 P.3d 1013 (2007). Applying those standards, we conclude that the trial court did not err.
Our decision in Gensler is dispositive. Like defendant here, the defendant in Gensler was convicted, in a single trial, of multiple counts of sodomy and sexual abuse for acts committed against one minor victim over a span of several years and separate acts committed against a second minor victim during a more limited time span. 266 Or.App. at 3. The trial court in Gensler denied the defendant's motion to sever, reasoning that, inter alia, the " defendant had not demonstrated substantial prejudice because the cases are separate enough that the jury could make a determination very easily on one case, and on the other case and not be confused by the conduct." Id. at 6 (internal quotation marks omitted). As we noted, the trial court " also explained that it could fashion limitations on cross-examination so that defendant could testify in the case pertaining to [victim 1] without having to testify in the case pertaining to [victim 2] and suggested that defendant could request instructions to guide the jury's consideration of the evidence." Id.
We affirmed, concluding that, " even if we assume that the evidence in each case was not mutually admissible in the other, the evidence in the cases was sufficiently simple and distinct to mitigate the dangers created by joinder." Id. at 9 (internal quotation marks omitted). In particular, we noted that the charges " arose from different incidents that occurred at different times and places and involved different victims." Id. We also concluded that any potential prejudice " could be mitigated through jury instructions and by limiting the state's cross-examination of defendant if he chose to testify in the case pertaining to [victim 1] but not the case pertaining to [victim 2]." Id. Here, for the same [272 Or.App. 398] reasons, we reject defendant's argument that the trial court erred in denying his motion to sever.
II. MOTION FOR MISTRIAL
We turn next to defendant's fifth and sixth assignments of error, in which he contends that the trial court erred in denying his motion for mistrial, made after closing arguments
on the basis that the prosecutor had improperly exploited evidence of defendant's past drug use throughout the course of the trial through comments during rebuttal argument to the jury. We begin by relating the remainder of the relevant facts.
The state called W as its first witness. Over defendant's objection based on OEC 404(3) and OEC 403, the court permitted the prosecutor to elicit general testimony from W that defendant had physically abused W--that he went " beyond normal discipline" --to establish that W had been afraid of defendant and to help to explain why W delayed reporting that defendant had sexually abused her. Although the prosecutor had told the jury in opening statement that the state would prove that defendant had been physically abusive to everyone in the household, W did not testify that defendant had beaten W's mother and neither did W's mother say so, when she later testified for the state. W also explained that she had heard from relatives that defendant was sober, which she considered when deciding whether to see him again. During redirect testimony, the state asked W, " By this point in your life, had you become aware--when we're talking, like, 19-, 20-, 21-year-old--that your dad had had a drug problem when he lived with you?" Defendant objected and requested a sidebar conference, following which the state withdrew the question. W finished testifying shortly thereafter, and the jury was excused for the day.
[272 Or.App. 399] The court then asked the state whether and to what extent it intended to elicit any additional testimony regarding defendant's alleged drug use. The state responded that it would continue to put on such evidence, arguing that it was relevant. The state indicated that it intended to ask W's mother about defendant's " regular and persistent drug use" and, more specifically, whether she was aware that he was using drugs while she was in a relationship with him and what drugs he had used. The state explained that that testimony was pertinent to defendant's statements in the recorded pretext call, in response to W's allegations, that he was " on drugs." The state also argued that the ...