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State v. Lulay

Court of Appeals of Oregon

February 14, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
JOHN DOUGLAS LULAY, Defendant-Appellant.

          Argued and Submitted March 20, 2017

         Marion County Circuit Court 14C42644, 14C46943; A159372 (Control), A159373 Dale Penn, Judge.

          Stephen A. Houze argued the cause and fled the briefs for appellant.

          Jeff J. Payne, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary: Defendant appeals a judgment convicting him of sexual abuse in the first degree against victims A and C in two cases consolidated for trial. At trial, defendant attempted to introduce evidence that he had been tried and acquitted for sexual abuse in an earlier unrelated case in order to corroborate his anticipated testimony that he took special precautions around children and to show that family members of A who testified at trial were aware of the prior case and were biased against defendant based on that knowledge. The trial court excluded the evidence after concluding both that it was irrelevant and that it would confuse and mislead the jury. Defendant assigns error to that ruling.

         Held: The trial court erred when it excluded evidence of defendant's prior acquittal for sexual abuse. First, the evidence was relevant to both defendant's bias and precautionary theories. Second, the court's ruling entirely foreclosed the possibility that defendant could raise the issue of witness bias during trial, which constituted legal error. Third, that error was not harmless in the case involving A because it prevented the jury from properly evaluating witness credibility. In addition, the error was not harmless as to both cases; the fact that the evidence was admissible to show bias in the consolidated trial involving A and C, which [290 Or. 283] would have exposed the jury to that evidence regardless of whether it was confusing or misleading, may have affected the court's ruling on the admissibility of the evidence to support defendant's precautionary theory and, ultimately, the verdict in both cases.

         Reversed and remanded.

          [290 Or. 284]

          SHORR, J.

         Defendant was convicted of one count of sexual abuse in the first degree against A, a child under the age of 14 at the time of the abuse, and two counts of sexual abuse in the first degree and one count of attempted sexual abuse in the first degree against C, also a child under the age of 14 at the time of the abuse. Although they stemmed from unrelated incidents and involved different victims, the charges against defendant were consolidated for trial based on a motion by the state.[1]

         Defendant raises three assignments of error: First, the trial court erred by excluding evidence of defendant's prior prosecution and acquittal for similar charges, because the evidence was relevant to show witness bias and to support defendant's theory that he took special precautions around children; second, the trial court erred by denying defendant's motion for a mistrial; and, third, the trial court erred by excluding testimony about defendant's character for sexual propriety and for being law abiding. We reject the second and third assignments without further written discussion. As to defendant's first assignment of error, we conclude that (1) defendant preserved his argument that the trial court erred by excluding the evidence when it was offered to establish bias; (2) the court committed legal error when it excluded the evidence in light of defendant's bias theory; and (3) the error was not harmless. Accordingly, we reverse and remand.

         I. FACTS AND PROCEDURAL HISTORY

         The relevant facts are procedural. Defendant was charged with three counts of sexual abuse in the first degree and one count of attempted sexual abuse in the first degree against C, a student whom defendant was tutoring; defendant was also charged with one count of sexual abuse in the first degree against A, his son's stepdaughter. At a consolidated trial, a jury found defendant guilty of all but one count of sexual abuse in the first degree in the case involving C; the jury also found defendant guilty in the case involving A.

          [290 Or. 285] Before trial, defendant moved for a preliminary ruling from the trial court to exclude evidence of a 2008 prosecution and acquittal of defendant involving sexual abuse of a child. The state responded that it did not intend to use evidence of the 2008 case in its case-in-chief unless defendant "opened the door" to that evidence. The court did not make a definitive ruling on the motion at that time, explaining from the bench that "I don't know what evidence is going to be brought forward. * * * And if something comes up, we'll deal with it at that time in the trial."

         Despite asking the trial court to exclude evidence of the 2008 case, defendant explicitly referenced that case during voir dire after a potential juror alluded to the fact that she was aware of defendant's past. Defendant asked the potential juror if she was referring to the 2008 case in which defendant was "charged with something similar" and subsequently "exonerated." The potential juror confirmed that she was, and went on to state that she could not be fair in her judgment due to the 2008 charges against defendant. The court then excused the potential juror.

         Following voir dire, but before opening statements, defendant moved to introduce evidence of the 2008 case. Defendant argued that that evidence should be admitted because "I opened the door in jury selection, and I intend to continue to open the door. *** [I]t is necessary to reference the 2008 matter * * * in order to present a complete defense. * * * I intend to bring it up in my opening statement." The following exchange then ensued:

"THE COURT: And why do you consider [the 2008 case] to be relevant in this trial?
"[DEFENSE COUNSEL]: It's relevant in this trial because *** [m]any of the witnesses in this case knew that [defendant] had been accused of sex abuse. For example, one of the state's listed witnesses [As aunt in the case involving A] indicated that when the disclosure was made to her by [A] that [she] was ...

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