State v. Hernandez-Esteban

543 P.3d 154

330 Or.App. 34

STATE of Oregon, Plaintiff-Respondent,

v.Francisco Javier HERNANDEZ-ESTEBAN, Defendant-Appellant.

A177043

Court of Appeals of Oregon.

Submitted September 26, 2023

January 4, 2024

Washington County Circuit Court, 19CR60141; Ricardo J. Menchaca, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Mary M. Reese, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Kirsten M. Naito, Assistant Attorney General, filed the brief for respondent.

Before Aoyagi, Presiding Judge, and Joyce, Judge, and Jacquot, Judge.

AOYAGI, P. J.

₃₅Defendant was convicted of sexual abuse of two children, A and M. On appeal, he raises three assignments of error. First, he argues that the trial court erred in denying his pretrial motion to sever the charges involving M (Counts 1 and 2) from the charges involving A (Counts 3 to 12) for purposes of trial. Second, he contends that the trial court erred in admitting A’s out-of-court statements under the hearsay exception in OEC 803(18a)(b). Third, as to Count 1, on which he was convicted of first-degree sexual abuse for giving M what she described as a peck on the lips, he challenges his 75-month prison sentence as so disproportionate that it violates Article 1, section 16, of the Oregon Constitution. For the following reasons, we remand for resentencing on Count 1, and we otherwise affirm.

I. FACTS

In 2021, defendant was charged in a single indictment with 12 counts of child sexual abuse. He was charged with eight counts of first-degree sexual abuse, ORS 163.427 (Counts 3 to 10), and two counts of third-degree sexual abuse, ORS 163.415 (Counts 11 and 12), for allegedly touching the vagina of his ex-girlfriend’s daughter, A, on 10 separate occasions between 2014 and 2018, while A was approximately 11 to 15 years old and was living in an apartment with her family and defendant. Defendant was also charged with two counts of first-degree sexual abuse, ORS 163.427, for alleged conduct toward M—a younger cousin of A, who sometimes visited A’s apartment—specifically "touching [M’s] lips or mouth" (Count 1) and "touching [M’s] buttocks" (Count 2) on separate occasions in 2016, when M was eight or nine years old.

The charges were tried together, after defendant unsuccessfully moved to sever. The jury found defendant not guilty on Count 2, resulting in his acquittal on that charge, and found him guilty on Count 1 and Counts 3 to 12, resulting in his conviction on those charges. At sentencing, the trial court imposed a combination of concurrent and consecutive sentences. Defendant was sentenced to a total of 180 months (15 years) in prison for his crimes against A, and he was ₃₆sentenced to 75 months (six years, three months) in prison for his crime against M.

II. MOTION TO SEVER

[1] In his first assignment of error, defendant argues that the trial court erred when it denied his pretrial motion to sever the charges pursuant to ORS 132.560(3) so that Counts 1 and 2, involving M, would be tried separately from Counts 3 to 12, involving A. Defendant argues that trying the charges together substantially prejudiced him by "depriving him of the protection of those provisions of the Oregon Evidence Code which limit the use of propensity evidence" and that it "rendered defendant’s trial fundamentally unfair in violation of due process." He seeks reversal of his conviction on Count 1 on that basis; as previously noted, he was acquitted on Count 2.¹

Multiple offenses may be charged in a single indictment if, as relevant here, the offenses "are alleged to have been committed by the same person" and are "[o]f the same or similar character[.]" ORS 132.560(1)(b)(A). However, "[i]f it appears, upon motion, that the state or defendant is substantially prejudiced by a joinder of offenses under subsection (1) * * *, the court may order an election or separate trials of counts or provide whatever other relief justice requires." ORS 132.560(3).

[2, 3] The Supreme Court recently revisited the law on severance in State v. Delaney, 370 Or. 554, 522 P.3d 855 (2022), which involved a trial of joined charges arising from the defendant’s alleged sexual assaults of two different women two years apart. The court reaffirmed that "whether the joinder of multiple charges substantially prejudices a party is a question of law" that is reviewed on appeal for legal error. Id. at 561, 522 P.3d 855. The court also reaffirmed that "a defendant seeking severance under ORS 132.560(3) must identify a case-specific theory of substantial prejudice that is more than the prejudice that is inherent whenever joined ₃₇charges allow the jury to hear that the defendant may have committed other bad acts." Id. at 556, 522 P.3d 855.

[4] Although defendant tried to identify a case-specific theory of substantial prejudice in his motion to sever, we agree with the state that he ultimately failed to identify any substantial prejudice that went beyond the prejudice inherent in the joinder of separate charges for similar offenses involving different victims.² See, e.g., Delaney, 370 Or. at 556, 522 P.3d 855 (affirming denial of severance in case where the defendant was charged with sexually assaulting two different women); State v. Buyes, 280 Or App 564, 570-71, 382 P.3d 562 (2016) (affirming denial of severance in case where the defendant was charged with multiple sex crimes against two children); State v. Crummett, 274 Or App 618, 622-23, 361 P.3d 644 (2015), rev. den., 359 Or. 525, 379 P.3d 517 (2016) (affirming denial of severance in case where the defendant was charged with 42 sex crimes against six children); State v. Williams, 272 Or App 770, 772, 358 P.3d 299 (2015), rev. den., 358 Or. 611, 369 P.3d 386, cert. den., 579 U.S. 907, 136 S.Ct. 2472, 195 L.Ed.2d 809 (2016) (affirming denial of severance in case where the defendant "was charged with sex crimes against different victims, in different locations, with distinct factual scenarios, that were separated by several months"); State v. Gensler, 266 Or App 1, 9, 337 P.3d 890 (2014), rev. den., 356 Or. 690, 344 P.3d 1112 (2015) (affirming denial of severance in case where the defendant was charged with multiple sex crimes against two family members). The trial court did not err in denying the motion to sever.

III. HEARSAY EXCEPTION

[5] In his second assignment of error, defendant contends that the trial court erroneously admitted hearsay statements of A under OEC 803(18a)(b). Hearsay is generally inadmissible. OEC 802. However, there are exceptions, including, as relevant here, an exception for a child declarant’s out-of-court statements regarding sexual abuse, if the declarant "testifies at the proceeding and is subject to cross-examination." OEC 803(18a)(b). The trial court admitted ₃₈into evidence, over defendant’s objection, out-of-court statements made by A when she was a child. Defendant argues that it was error to admit those statements under OEC 803(18a)(b) because, by the time that she testified at defendant’s trial, A was 18 years old.

We recently held in State v. Juarez-Hernandez, 316 Or App 741, 754, 503 P.3d 487, rev. den., 369 Or. 856, 512 P.3d 453 (2022), that it is the declarant’s age at the time that the out-of-court statements were made that is determinative of their admissibility under OEC 803(18a)(b), not the declarant’s age at the time of the trial in which the statements are offered into evidence. Defendant asserts that Juarez-Hernandez was wrongly decided. We are unpersuaded. Because Juarez-Hernandez is controlling, we reject defendant’s claim of error regarding the admission of A’s out-of-court statements as a child.

IV. SENTENCE ON COUNT 1

[6, 7] In his third assignment of error, defendant challenges his sentence on Count 1 as so disproportionate to the offense that it violates Article 1, section 16. See Or. Const., Art. I, § 16 ("Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense."). The basic principle underlying the proportionality requirement is that "‘a greater or more severe penalty should be imposed for a greater or more severe offense, and, conversely, that a less severe penalty should be imposed for a less severe offense.’" State v. Rodriguez/Buck, 347 Or. 46, 59, 217 P.3d 659 (2009) (quoting State v. Wheeler, 343 Or. 652, 655-56, 175 P.3d 438 (2007) (emphasis omitted)). "We review for legal error the trial court’s conclusion that defendant’s sentence was constitutional under Article I, section 16." State v. Ryan, 361 Or. 602, 614-15, 396 P.3d 867 (2017).

Under ORS 163.427(1)(a)(A), a person commits the crime of first-degree sexual abuse "when that person * * * [s]ubjects another person to sexual contact and * * * [t]he victim is less than 14 years of age[.]" "Sexual contact" is defined to include "any touching of the sexual or other intimate parts of a person * * * for the purpose of arousing or gratifying the sexual desire of either party." ORS 163.305(5). Here, Count 1 of the indictment charged defendant with committing ₃₉first-degree sexual abuse by knowingly subjecting M "to sexual contact by touching her lips or mouth, an intimate part of [M]."

At trial, M testified that, in 2016, she would often visit her grandmother, aunt, and cousins in their apartment that they shared with defendant (who was in a relationship with M’s aunt). During one visit, M’s cousin took defendant’s phone, ran around the kitchen with it, then gave it to M. Defendant approached M, who was on the couch, and briefly kissed her on the lips. It surprised M, because an older man had never kissed her, and she did not have "that kind of relationship with [defendant]." Nothing further happened. M would have been eight or nine years old. M disclosed the kiss to her cousin in 2018 and to a teacher in 2019. In a 2019 CARES interview, M said that defendant kissed her—she described it as...