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State v. Zaldana-Mendoza

Court of Appeals of Oregon

October 2, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
HUGO ALEXIS ZALDANA-MENDOZA, Defendant-Appellant.

          Argued and submitted October 27, 2017

          Washington County Circuit Court C151359CR; Suzanne Upton, Judge.

          Neil 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 Services.

          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.

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

         Case 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.

         Reversed and remanded.

         [299 Or.App. 591] SHORR, J.

         Defendant 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.[1] 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.

         I. FACTS AND PROCEDURAL HISTORY

         We 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.

         [299 Or.App. 592] A. The Pretrial OEC 412 Hearing

         Before 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 412(2Xb).[2]

         A 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.[3] 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.[4] OEC 412(4)(c); see also Muyingo, 171 Or.App. at 224 (describing the three-step inquiry).

         In this 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.

         The 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.

         A also 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 apartment.

         In 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 defendant.

         Defendant 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."

         At the 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 contended:

"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 June 1st.
"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."

(Emphases added.)

         Following 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 ...

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