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State v. Sperou

Supreme Court of Oregon, En Banc

June 6, 2019

STATE OF OREGON, Respondent on Review,
v.
MICHAEL GEORGE SPEROU, Petitioner on Review.

          Argued and submitted January 15, 2019

          On review from the Court of Appeals. [*] (CC 14CR10194) (CA A159562)

          Steven J. Sherlag, Portland, fled the briefs and argued the cause for petitioner on review.

          Peenesh Shah, Assistant Attorney General, Salem, argued the cause and fled the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

         [365 Or. 122] Case Summary:

         Defendant was charged with first-degree unlawful sexual penetration, ORS 163.411, for alleged crimes that he committed against a girl, SC. Before trial, the state disclosed that it would call as witnesses S.C. and six other women who would testify to having been sexually abused by defendant. Defendant, who denied that any abuse had occurred, moved before trial to prohibit the use of the word "victim" by the prosecutor and state's witnesses at trial to describe S.C. and the other accusers. Defendant argued that calling his accusers "victims" constituted impermissible vouching for the credibility of his accusers and undermined the presumption of his innocence. The trial court denied defendant's motion, and, at trial, the prosecutor and some of the state's witnesses referred to S.C. and the other six women as defendant's "victims." Defendant was convicted and the Court of Appeals affirmed. Held: (1) The trial court did not err in denying defendant's pretrial motion as it related to statements by the prosecutor; (2) the trial court erred in denying defendant's pretrial motion as it related to statements by witnesses because such references constituted impermissible vouching testimony; (3) the trial court's error with respect to witnesses was not harmless.

         The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

         [365 Or. 123] GARRETT, J.

         Defendant was charged with first-degree unlawful sexual penetration, ORS 163.411, for alleged crimes that he committed against a girl, SC, who belonged to the church that defendant led as pastor. Before trial, the state disclosed that it would call as witnesses S.C. and six other women who would testify to having been sexually abused by defendant years earlier when they were young girls attending his church. Defendant, who denied that any abuse had occurred, moved to preclude the testimony of the other six women. He also moved to prohibit the use of the word "victim" at trial to describe S.C. or the other accusers. The trial court denied both motions.

         At trial, SC and the other six women testified to having been abused by defendant, and the prosecutor and some of the state's witnesses referred to S.C. and the other six women as defendant's "victims." Defendant was convicted and the Court of Appeals affirmed without opinion. We granted review to address two questions: whether the trial court erred in admitting the testimony of the six other women who described being abused by defendant, and whether the trial court erred in allowing S.C. and those other women to be described as "victims" by the prosecutor and state's witnesses.

         As explained below, we conclude that the trial court did not err in denying defendant's pretrial motion to the extent that defendant sought to categorically prohibit the prosecutor from referring to S.C. as a "victim." We reach a different conclusion, however, regarding the use of that word by the state's witnesses. Under these circumstances, where the only evidence of abuse was the testimony of S.C. and the other women, and where defendant's theory of the case was that no abuse had occurred and that S.C. and the other women were either lying or mistaken, the use of the word "victim" by the state's witnesses amounted to impermissible vouching, and the trial court should have granted defendant's motion to preclude such references. Because we further conclude that the trial court's error in that regard was not harmless and requires remand, it is unnecessary to [365 Or. 124] resolve defendant's other arguments regarding the admission of "other acts" evidence.

         BACKGROUND

         The facts relevant to our review are undisputed. In the 1980s and 1990s, defendant was the pastor of a communal church that focused on "intense orthodox scholarship in the original languages of the Bible." The core members of the church lived in cooperative homes located near or next to each other. Over the years, tension grew within the community due to interpersonal conflicts involving defendant and other members. Beginning in approximately 1994, some of the members' children told their parents that defendant had sexually abused them. The members confronted defendant but did not report the allegations to law enforcement.

         In 1996, a group of members left the church. In 1997, one of the former members reported to police that defendant had sexually abused children in the congregation. Detective Sturdevant investigated. Some children told Sturdevant that defendant had sexually abused them when they were living in the cooperative homes. One child was SC, the complaining witness in this case, who was then around 10 Or. 11 years old; she told Sturdevant that defendant had touched her sexually but she did not say that he had penetrated her. Despite the children's allegations, some children and their parents did not want to press charges against defendant at that time. No charges were filed.

         In 2013, some of the children who had reported sexual abuse in 1997-now women in their 20s and 30s-again reported to authorities that defendant had sexually abused them as children. Detective Helwig reopened the investigation. In total, Helwig learned of seven women, including SC, who alleged that defendant sexually abused them when they were girls living in the communal homes. Helwig interviewed SC, who reported for the first time that defendant had digitally penetrated her on multiple occasions between 1993 and 1996.

         The Multnomah County district attorney filed charges against defendant but was limited in doing so by the statute of limitations. Specifically, charges arising from [365 Or. 125] the allegations by the six women other than S.C. were time-barred either because those women were over 30 years old or because they had not alleged any conduct by defendant that they had not disclosed in 1997. See former ORS 131.125(2) (2013), amended by Or Laws 2015, ch 417, § l.[1] Because S.C. did allege something that she had not previously disclosed, however (the acts of digital penetration), charges based on those allegations were not time-barred. Accordingly, defendant was indicted on three counts of first-degree unlawful sexual penetration.

         Defendant denied all wrongdoing. He asserted that the allegations against him were either lies or false memories motivated and fostered by ill-will flowing from the church's fracturing in 1996.

         Before trial, the state disclosed that it would call as witnesses S.C. and the six other women who had alleged sexual abuse by defendant. Defendant filed pretrial motions seeking, as relevant here, two forms of relief. First, defendant sought to preclude the six women other than S.C. from testifying about prior acts of sexual abuse by defendant. Defendant argued that the women's testimony was inadmissible propensity evidence under OEC 404(3), which provides that "[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith." Second, defendant moved "for an order that all present, including all parties, witnesses, and staff shall be precluded from referring to the complainant, including but not limited to [SC] and any other alleged 'victim' of abuse, as a 'victim, '" arguing that such references would, under the circumstances of the case, undermine the presumption of defendant's innocence [365 Or. 126] and constitute improper vouching for the credibility of the accusers.

         The state opposed both motions. With respect to defendant's argument under OEC 404(3), the state argued that the testimony of the six other women was admissible under the second sentence of that rule. See OEC 404(3) ("[Evidence of other crimes, wrongs or acts] may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident"). The state also argued that the evidence was admissible under OEC 404(4) ("evidence of other crimes, wrongs or acts by the defendant is admissible if relevant except as otherwise provided by" other rules, statutes, or the state or federal constitutions).

         The trial court ultimately denied defendant's motion as to the "other acts" evidence and allowed the women to testify; however, in doing so, the court did not specify whether it deemed the evidence ...


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