and submitted October 27, 2017
Washington County Circuit Court C151359CR; Suzanne Upton,
F. Byl, 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
Jennifer S. Lloyd, Assistant Attorney General, argued the
cause for respondent. On the briefs were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General, and
Rebecca M. Auten, Assistant Attorney General.
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
Summary: Defendant appeals from a judgment of conviction for
burglary, sexual abuse, and unlawful sexual penetration.
Defendant assigns error to the trial court's exclusion of
defendant's testimony that defendant and the alleged
victim had had consensual sex in the days before the charged
incident. The trial court excluded that testimony under OEC
412, concluding that defendant's testimony was not
credible. Defendant argues that the trial court's ruling
to exclude his testimony violated his right to a jury trial,
right to present a complete defense, and right to
confrontation under the Oregon Constitution and the United
States Constitution. Held: The trial court's
decision to exclude the evidence was an impermissible
credibility determination that violated defendant's right
to a jury trial under Article I, section 11, of the Oregon
Constitution. Without reaching defendant's other
constitutional arguments, the trial court's decision is
reversed, and the case is remanded to the trial court for
further proceedings under OEC 412 and to determine whether a
new trial is necessary or appropriate.
Or.App. 591] SHORR, J.
appeals from a judgment of conviction for burglary, ORS
164.225, sexual abuse, ORS 163.427, and unlawful sexual
penetration, ORS 163.411. Defendant argues that the trial
court erred when it applied OEC 412, Oregon's rape shield
statute, to exclude defendant's testimony that defendant
and the alleged victim A had had consensual sex in the days
before the alleged assault. The court excluded that testimony
after concluding, following an in camera hearing,
that it did not find defendant's version of events
believable. Defendant contends that that decision constituted
an impermissible preliminary credibility determination that
violated his right to a jury trial, right to present a
complete defense, and right to confrontation under the Oregon
Constitution and the United States Constitution. As we
explain below, we reverse because we conclude that the trial
court's decision to exclude the evidence was an
impermissible credibility determination that violated
defendant's right to a jury trial under Article I,
section 11, of the Oregon Constitution. Because we reverse
the trial court's decision to exclude defendant's
evidence on that basis, we do not reach defendant's other
constitutional arguments for excluding that evidence.
FACTS AND PROCEDURAL HISTORY
provide the following background as context for understanding
the evidentiary issue that was before the trial court.
Defendant and A had lived in the same apartment building. The
state alleged that, on June 1, 2015, defendant unlawfully
entered As apartment, forcibly subjected A to sexual contact
and penetration with his finger, and attempted to rape A. The
state charged defendant with burglary, sexual abuse, unlawful
sexual penetration, and attempted rape.
Or.App. 592] A. The Pretrial OEC 412 Hearing
trial, defendant moved to introduce evidence that he and A
had had consensual sex on May 27, 2015, less than a week
before the charged incident. Although evidence of a
complainant's past sexual behavior is presumptively
inadmissible under Oregon's rape shield statute, OEC
412(2), that statute provides three exceptions. Such evidence
may be admissible if it relates to the motive or bias of the
complainant, is necessary to rebut scientific or medical
evidence offered by the state, or is otherwise
constitutionally required to be admitted. OEC
defendant who wishes to introduce evidence under one of the
exceptions enumerated in OEC 412(2)(b) must make a motion
accompanied by a written offer of proof. OEC 412(4)(a) - (b).
Before a trial court admits or excludes evidence under OEC
412, it must conduct a three-step inquiry. State v.
Muyingo, 171 Or.App. 218, 224, 15 P.3d 83 (2000),
rev den, 332 Or. 431 (2001). First, if the evidence
relates to the alleged victim's past sexual behavior and
is offered in the form of reputation or opinion evidence, the
court must not admit the evidence. Id. Second, if the
evidence is offered in another form, the court must consider
whether it can admit the evidence under one of the three
exceptions in OEC 412(2)(b). If the court determines that no
exception applies, the court must also exclude the evidence.
Id. Third, if it appears that one or more of the
exceptions may apply, the court must hold an in
camera hearing to determine whether to admit the
evidence. OEC 412(4Xb). At the hearing, "the parties may
call witnesses, including the alleged victim, and offer
relevant evidence." Id. If the relevancy of the
evidence that the defendant seeks to admit "depends upon
the fulfillment of a condition of fact, the court * * * shall
accept evidence on the issue of whether the condition of fact
is fulfilled and shall determine the issue."
Id. Following the hearing, the court will determine
if the evidence is relevant and the "probative value of
the evidence outweighs the danger [299 Or.App. 593] of unfair
prejudice," and admit it if so. OEC 412(4)(c); see also
Muyingo, 171 Or.App. at 224 (describing the three-step
case, defendant contended that the evidence was admissible
under the exceptions in OEC 412(2)(b)(A) (relating to motive
or bias of the alleged victim) and OEC 412(2)(b)(C) (evidence
that is constitutionally required to be admitted). As to the
first exception, defendant argued that the prior consensual
sexual encounter provided A with a motive to be dishonest
about whether any sexual contact between herself and
defendant-including the charged incident-was consensual,
because A had an interest in hiding that encounter to protect
her relationship with her boyfriend. As to the second
exception, defendant argued that the evidence was
constitutionally required to be admitted for several reasons,
including his constitutional right to confront A and
contradict her testimony that she was a stranger to defendant
before the night of the charged assault. In his written
materials in support of his motion to offer such evidence,
defendant cited Article I, section 11, and the Sixth and
Fourteenth Amendments to the United States Constitution.
trial court held a hearing to determine whether that evidence
was admissible, as required by OEC 412 (4Xb). At the hearing,
defendant testified that he had interacted with A around the
apartment complex and had gone to her apartment once to tell
her that her car, which was parked on the street below
defendant's apartment, had been ticketed. He asked if A
wanted to go out with him for his birthday, and A agreed, but
when he went to her apartment later that night no one
answered when he knocked on the door. Defendant left a note
on As door calling her a "cutie" [299 Or.App. 594]
and reminding her to move her car to avoid another ticket.
Defendant testified that he regularly complimented A on her
appearance when he saw her around the apartment complex, they
would flirt, and that she would laugh and talk in response.
Defendant then testified that, on May 27, less than week
before the charged incident on June 1, he and A had had
consensual sex in his apartment. He described having seen A
in the hallway, grabbing her by the hand, and proceeding to
engage in consensual contact in the hallway, and later
consensual sex inside his apartment. Defendant testified that
he and A did not interact again between the earlier
consensual encounter and the charged incident.
testified at the hearing. Her testimony contradicted
defendant's testimony. A testified that, when defendant
first asked her to go out with him for his birthday, she
declined. Defendant knocked on As door multiple times that
night until, eventually, As roommate's boyfriend answered
the door and told defendant that A had a boyfriend and
defendant was not welcome at the apartment. A and defendant
occasionally walked past each other in the apartment complex
after that point but never interacted with one another. A
testified that she had never been in defendant's
apartment and had not had any sexual relations with defendant
prior to the charged incident when defendant broke into her
addition, two other witnesses for the state-As boyfriend at
the time of the charged incident, J, and As mother,
T-corroborated As testimony. J testified that he and A were
in a monogamous relationship during the events at issue in
this case. A had told him before defendant attacked her in
her apartment that a man in her apartment complex was
bothering her by leaving her notes and knocking on her door.
While A "didn't make a huge deal out of it," it
"kind of weirded her out." T similarly testified
that A and J were in a monogamous relationship, that A
complained that another man in the apartment complex was
bothering her, and that T never saw A express any interest in
went on to argue that evidence of the consensual sexual
encounter in his apartment was admissible because it was
relevant to As motive for accusing defendant [299 Or.App.
595] of attempting to rape her and was constitutionally
required to be admitted. In defendant's view, A and J
were in a monogamous relationship and "an outside of
that relationship sexual contact with someone would give [A]
a motive to be dishonest about anything that happened between
her and [defendant] at the time."
hearing on defendant's motion, defendant expanded on the
constitutional arguments that he had cursorily raised in his
motion and supporting memorandum. Defendant raised arguments
relating to his constitutional rights to (1) have a jury
decide issues of credibility, (2) present a complete defense,
(3) due process, and (4) confront witnesses. Defendant
"And so, Judge, my primary argument is that this
information-I'm having trouble making words right
now-is constitutionally required to be admitted.
"This is a case where [A] is saying that she didn't
consent to the activity that took place in her apartment on
"It's a case where [defendant] is saying that she
did consent to the activity in her apartment on June 1st.
"Not allowing him to admit this particular prior
incident of May 27th would be a violation of his ability to
present a complete defense.
"Now certainly the credibility of that issue is
something for the jury to decide. They can weigh the
testimony provided by [defendant] and by [A] and make a
decision as to the incident on May 27th, as well as the
incident on June 1st.
"But my argument is that it would be a violation of his
due process rights not to allow him to testify about this
prior sexual consensual contact. And frankly, [A]-I expected
her to deny it before. * * * And I expect her to deny it at
trial. And at that point, it should be a question for the
factfinder to determine the nature of that incident, as well
as the nature of the incident on June 1st."
defendant's argument, the trial court denied
defendant's motion to admit evidence relating to [299
Or.App. 596] defendant's claimed prior consensual sexual
contact with A on May 27:
"You know, you've raised a variety of different
things that I would definitely have to deal with if we got to
that point. The constitutional issue of confrontation.
That's out there like a bell to be determined whether it
should be rung or not. The issue of what other kinds of
relevance it could have.
"But ultimately when I considered all of the
defendant's testimony it was clear to me that it
can't meet preponderance.
"First of all, he contradicted himself. *** [S]ome of
the things he said were nonsensical. Some of them he was
contradicted on. Some of them he contradicted himself on. And
ultimately, I didn't believe him.
"But when you take that and then say, 'Okay well, it
doesn't look like the defense is going to be able to meet
the preponderance standard to be able to say is it more
likely than not that's true,' I definitely
couldn't say it's more likely than not that's
true. And my tendency, after considering everything ...