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State v. Fudge

Court of Appeals of Oregon

May 30, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
MATTHEW A. FUDGE, Defendant-Appellant.

          Argued and submitted October 31, 2018

          Washington County Circuit Court C152987CR; Beth L. Roberts, Judge.

          Zachary Lovett Mazer, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Joanna Hershey, Assistant Attorney General, argued the cause for respondent. Also on the briefs 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 from a judgment of conviction for first-degree sodomy and first-degree sexual abuse. Defendant assigns error to the trial court's imposition of a 300-month mandatory minimum sentence of imprisonment, on the ground that the sentence violates Article I, section 16, of the Oregon Constitution and the Eighth Amendment to the United States Constitution. As to the Article I, section 16, assignment of error, defendant argues that a 300-month sentence is disproportionate as applied to him under State v. Rodriguez/Buck, 347 Or. 46, 58, 217 P.3d 659 (2009), because of his severe intellectual disability.

         Held:

         The trial court erred in failing to consider how defendant's disability affected the gravity of the offense, which the trial court was required to do pursuant to State v. Ryan, 361 Or. 602, 621, 396 P.3d 867 (2017), a decision that was issued after the trial court sentenced defendant.

         [297 Or.App. 751] SHORR, J.

         Defendant appeals from a judgment entered after a jury found him guilty of first-degree sodomy (Count 1), ORS 163.405, and first-degree sexual abuse (Count 2), ORS 163.427. Defendant assigns error to the trial court's imposition of a 300-month mandatory minimum sentence of imprisonment under ORS 137.700 on Count 1, on the ground that the sentence violates Article I, section 16, of the Oregon Constitution and the Eighth Amendment to the United States Constitution. We address that assignment below. Defendant also assigns error to the court's denial of a requested "witness false in part" instruction, which we reject without further discussion.[1] UCrJI 1029. For the following reasons, we remand for reconsideration of defendant's sentence and otherwise affirm.

         In 2015, defendant was a 30-year-old man with a lifelong history of intellectual disability who lived in Reno, Nevada, with his elderly grandparents. Defendant's primary source of income was Social Security benefits, and his grandparents were designated as his official guardians and Social Security payees. In the summer of 2015, defendant traveled with his grandparents from Reno to Oregon to visit with family. They stayed in a camper trailer parked outside the home of K, a four year old. The day before the visit was planned to end, the family held a cookout at K's home. During the cookout, K's mother (defendant's cousin) noticed that K was missing. She yelled for her son, and she heard defendant respond from around the corner, "He's with me." Defendant and K then returned through a gate in the yard, coming from the direction of the camper.

         After defendant and his grandparents left, K's mother noticed a bruise on K's penis when she was giving him a bath. She asked K what happened, and he told her that defendant "took him to the trailer and pulled his pants [297 Or.App. 752] down and licked and bit his wiener." K's mother then took two videos of K with her cell phone. In the videos, K again said that defendant bit and licked him, and that defendant "tried to stop me when I was trying to tell mommy when she was inside." K said that defendant told him, "Racecar go. Racecar stop. Don't tell mommy." K was referred to CARES Northwest by his pediatrician, where he underwent a physical examination and forensic interview. K told the examiner that defendant licked and bit his penis.

         In a pretext phone call, K's father confronted defendant about having sexual contact with K. Defendant told him, "I didn't do that. I'm not that way. I don't do stuff like that." A Reno police detective, working in conjunction with Washington County law enforcement, interviewed defendant, and defendant again denied having sexual contact with K. The Reno detective's report reflected that defendant stated

"that he had been around kids a long time and he had never done 'stuff,' and he had never been curious. He added [that] he was not interested in sexual stuff 'cuz it's bad and I don't do it cuz I'm always busy working and making money.' He then said that sexual stuff was bad because, 'you get in trouble and it would be on your record.'
"*** He added [that] he had never had sexual intercourse with anyone, and that if he was curious about something sexual, he would ask his grandparents."

         Defendant was charged with first-degree sodomy, ORS 163.405, and first-degree sexual abuse, ORS 163.427. A jury found defendant guilty of both crimes. At sentencing, defendant argued that the imposition of a 300-month sentence was unconstitutionally disproportionate, as applied to defendant, because of defendant's intellectual disability. In support of his argument, defendant submitted to the trial court a psychological evaluation, performed by Dr. Colistro.

         Colistro reviewed defendant's education and mental health records. The records showed that defendant had been diagnosed with mental retardation in 1998. Defendant underwent an IQ test in 1999 that yielded a full-scale IQ of 46, which is below the first ...


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