State v. Avdeyev

309 Or.App. 205

482 P.3d 115

STATE of Oregon, Plaintiff-Respondent,

v.Nikolay AVDEYEV, Defendant-Appellant.

A165643 (Control)

A165647

Court of Appeals of Oregon.

Argued and submitted October 28, 2019.

February 10, 2021

Jason E. Thompson, Salem, argued the cause for appellant. Also on the brief was Ferder Casebeer French Thompson & Stern, LLP.

Michael A. Casper, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Shorr, Judge, and James, Judge.

ORTEGA, P. J.

In this consolidated case, defendant appeals from a judgment of conviction in case number 15CR56120 for first-degree rape and from a judgment of conviction in case number 15CR55011 for one count of first-degree rape (Counts 1), one count of second-degree rape (Count 5),¹ 11 counts of first-degree sexual abuse (Counts 9 to 18, and 20), and one count of second-degree unlawful sexual penetration (Count 19).² On all but two counts—Counts 9 and 11 in case number 15CR55011—the jury returned a nonunanimous verdict. On appeal, defendant argues that the trial court erred in giving a nonunanimous jury instruction and that all of his convictions should be reversed as a result. The state concedes that defendant is entitled to reversal on the nonunanimous counts under Ramos v. Louisiana , 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020). We agree, accept the concession, and reverse and remand the convictions that are based on nonunanimous verdicts. As for the remaining two convictions by unanimous verdict, we conclude that any error in giving the nonunanimous jury instruction was harmless as to those two convictions. State v. Flores Ramos , 367 Or. 292, 478 P.3d 515 (2020).

Defendant asserts several additional assignments of error on appeal that apply to the two remaining convictions. In his seventh assignment of error, defendant challenges the trial court's denial of his pretrial motion to prevent the prosecutor or witnesses from referring to the complaining witnesses as "victims." Based on the Supreme Court's decision in State v. Sperou , 365 Or. 121, 442 P.3d 581 (2019), we conclude that the court erred when it denied defendant's motion with respect to witnesses, because allowing such references is impermissible vouching. We further conclude that the error in this case was not harmless with respect to Counts 9 and 11 and, as a result, we also reverse and remand those remaining two convictions. That disposition obviates the need for us to address any of defendant's remaining assignments of error.

The background facts relevant to our disposition are undisputed. In 2015, defendant was charged with one count of rape of his wife that occurred in 2009 (case number 15CR56120), and with multiple counts of rape and sexual abuse of his niece SD that occurred between 1999 and 2002, and one count of sexual abuse of his niece IG that occurred between 2000 and 2001 (case number 15CR55011). At the time of the alleged conduct both SD and IG were under 14 years old, but at the time the charges were brought, they were both adults. There was no physical evidence to corroborate the charged crimes. Defendant did make statements to police that he had touched SD's breasts, but he asserted that it happened only because SD would come up to him and press her body against him or take his hand and put it on her. Defendant denied any other physical touching and denied any wrongdoing. As to one count of sexual abuse of SD (Count 12), a witness testified that she saw the touching, but there were no corroborating witnesses as to Counts 9 or 11, or any other charged count.

Defendant's defense theory at trial was that, when he and his wife filed for divorce and began fighting over custody of their minor daughter, members of their extended family supported either him or his wife. He asserted that his wife and nieces were making false accusations or, in the case of his nieces, were manipulated to make historically inaccurate accusations against him to assist his wife in the divorce proceedings. To support that theory, defendant argued that the testimony of the complaining witnesses was unreliable and pointed out inconsistencies in that testimony. Defendant's theory further relied on the outcome-determinative nature of the investigation conducted by the police, including that one of the detectives in the case, Avetisyan, was related by marriage to defendant's wife's family.

Before trial, defendant brought motions to prohibit the prosecutor and witnesses from referring to the complaining witnesses as "victim" or referring to their statements as "disclosures." He argued that any such references would, under the circumstances of the case, undermine the presumption of innocence for defendant and constitute improper vouching for the credibility of his accusers. The state responded that, because the state is seeking to prove that defendant victimized the complaining witnesses, it should be allowed to call those witnesses a victim at trial. The trial court denied defendant's motion, ordering that "the state may use the words ‘victim’ and ‘disclosure’ during opening and closing statements" and further "reserve[d] it's ruling on the use of the word ‘victim’ by witnesses during trial."

With respect to referring to complaining witnesses as "victims" at trial, the prosecutor made multiple such references in closing argument. There were also several instances when a complaining witness was referred to as a victim during witness testimony—either by the prosecutor in her question put to the witness or by the witness themselves. We discuss those instances more particularly in our prejudice analysis.

Because, as explained above, we reverse and remand all of defendant's convictions except Counts 9 and 11 under Ramos , we discuss defendant's other assignment of error only as it relates to Counts 9 and 11.

On appeal, among other things, defendant assigns error to the trial court's denial of his pretrial motion to prohibit the prosecutor and witnesses from referring to the complaining witnesses as "victims" at trial. Our resolution of that assignment is controlled by the Supreme Court's decision in Sperou . In that case, the defendant was charged with unlawful sexual penetration of SC. SC was expected to testify at trial, as well as other witnesses who would also testify to having been sexually abused by the defendant. The defendant denied all wrongdoing, asserting that the accusations were lies or false memories. Before trial, the defendant brought a motion to prohibit the prosecutor or witnesses from referring to those complaining witnesses as victims. The trial court denied the motion, and the prosecutor referred to those witnesses as victims throughout trial, and two investigating detectives and another witness also referred to the complaining witnesses as victims in their testimony. Sperou , 365 Or. at 125-27, 442 P.3d 581.

In addressing the use of "victim" at trial to describe a complaining witness, the court stated:

"In short, we agree with defendant that, under our reasoning in [State v.] Lupoli [348 Or. 346, 234 P.3d 117 (2010)], the use of the term ‘victim’ to refer to the complaining witness or other witnesses, in circumstances where the accusers’ own testimony is the only evidence that the alleged criminal conduct occurred, conveys the speaker's belief that the accusers are credible."

Id. at 132, 442 P.3d 581. The court further stated:

"We also agree with defendant's contention that, where a defendant denies that any crime occurred, references to the complaining witness as a ‘victim’ may undermine the presumption of defendant's innocence because it assumes defendant's guilt, a fact that is necessarily not proved until the jury finds the defendant guilty."

Id. at 133, 442 P.3d 581.

In applying those conclusions, the court drew a distinction between the prosecutor referring to a complaining witness as a victim and a witness doing so. And, when, as here, the defendant brings up the issue in a pretrial motion to prohibit all such references, the court concluded that, "[i]n light of a prosecutor's dual responsibilities to refrain from inflammatory remarks and personal commentary, on the one hand, but to be an advocate for the state's cause, on the other, it is difficult to state a categorical rule regarding a prosecutor's use of the term ‘victim’ to describe a complaining witness where victimhood is disputed." Id. at 135, 442 P.3d 581. As such, the propriety of a prosecutor's use of the term "victim" necessarily depends on the context, and if, in context, the comment is inappropriate, the trial court has discretion to fashion an appropriate remedy, "subject to the defendant's right to a fair trial." Id. at 136, 442 P.3d 581. In Sperou , because the defendant's pretrial motion did not attempt to distinguish between appropriate and inappropriate prosecutorial references to "victim," the court concluded that the trial court acted within its discretion to deny the defendant's pretrial motion with respect to the prosecutor.

The court came to a different conclusion with regard to witnesses "where the factual question of an accuser's victimhood turns on the credibility of that accuser's claims." Id. at 138-39, 442 P.3d 581. In those circumstances, use of the word "victim" by a witness amounts to vouching and is categorically inadmissible. Id. at 139, 442 P.3d 581. Thus, the court concluded that it was legal error for the trial court to permit that testimony, and, because it was apparent that it was error at the time of the pretrial motion, the defendant was not required to renew his objection to witness vouching during trial. Id .

Applying Sperou to this case, we conclude that the trial court did not err when it ruled that "the state may use the words ‘victim’ and ‘disclosure’ during opening and closing statements." However, it was error for the trial court to deny defendant's ...