State v. Lachat

298 Or.App. 579

448 P.3d 670

STATE of Oregon, Plaintiff-Respondent,

v.Shawn Thomas LACHAT, Defendant-Appellant.

A162537

Court of Appeals of Oregon.

Submitted April 24, 2018.

July 31, 2019

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and David Sherbo-Huggins, Deputy Public Defender, Office of Public Defense Services, filed the opening brief for appellant. Shawn Thomas Lachat filed the supplemental and reply briefs pro se.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Cecil A. Reniche-Smith, Assistant Attorney General, filed the brief for respondent.

Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

HADLOCK, P. J.

Defendant was tried to a jury on multiple charges related to his sexual assault of his wife, D, part of which was witnessed by their young child. The jury found defendant guilty of first-degree unlawful sexual penetration, attempted first-degree rape, misdemeanor fourth-degree assault, and felony fourth-degree assault constituting domestic violence. On appeal from the resulting judgment of conviction, defendant raises five assignments of error challenging the trial court’s rulings that allowed defendant’s counselor to testify about certain statements that defendant made to her in counseling sessions. In a sixth assignment of error, defendant makes an unpreserved argument that the trial court erred when it failed to merge the jury’s guilty verdicts on the two assault counts (Counts 3 and 4) into a single conviction for felony fourth-degree assault. Defendant also has filed a pro se supplemental brief arguing that the trial court should have dismissed the case on the ground of vindictive prosecution.

We conclude that defendant’s arguments related to the counselor’s testimony present no basis for reversal because, as explained below, any error associated with admitting that testimony was harmless. We reject the pro se assignment of error without discussion. However, we agree with defendant (and the state, which concedes the point) that the trial court plainly should have merged the guilty verdicts on the two assault counts into a single conviction for felony fourth-degree assault constituting domestic violence. Accordingly, we reverse and remand Counts 3 and 4 for the trial court to merge those guilty verdicts and remand for resentencing.

As noted, defendant asserts in his first five assignments of error that the trial court erred by admitting certain testimony from defendant’s counselor about what defendant told her. Specifically, defendant contends that the court erred in determining that he had waived the OEC 507 privilege associated with those communications when he told other people something about them.¹

In considering that argument, we ordinarily would review the record in the light most consistent with the trial court’s ruling, bound by the court’s implicit and explicit findings if the record supports them. See Rowen v. Gonenne , 274 Or. App. 803, 814-15, 362 P.3d 694 (2015) (applying that standard in reviewing the "peer review body" privilege). Here, however, we ultimately conclude that any error associated with admitting the counselor’s testimony was harmless. "A harmless error analysis is based on reviewing all pertinent portions of the record to determine if there is little likelihood that any error affected the verdict." State v. Jones , 296 Or. App. 553, 556, 439 P.3d 485 (2019) (internal brackets and quotation marks omitted). We therefore summarize pertinent parts of the record in accordance with that standard.

At the time of the June 2013 incident that gave rise to charges against defendant, he and D were married and had a child, C, who was about four years old. D testified that, on the day in question, defendant pushed her down onto their bed as she was changing clothes, held her face down with an arm behind her back, and raped her. D thinks defendant may also have penetrated her digitally; she felt penetration and thought it was his penis. D repeatedly told defendant to stop, but he did not. Defendant and D were fighting physically and, at some point, D’s arm "popped." D also testified that C walked into the room and saw what was happening. Later, friends and family of D splinted D’s injured arm, which D testified was broken. D reported the incident to law enforcement officers several months later.

Defendant was charged with four counts: first-degree unlawful sexual penetration (alleged as forcible digital penetration), first-degree rape, second-degree assault (by knowingly causing D serious physical injury), and felony fourth-degree assault constituting domestic violence (by knowingly causing D physical injury "and the assault was committed in the immediate presence of or witnessed by [C]"). At trial, D testified to the facts outlined above. During her testimony, the state played a recording of a telephone call between D and defendant that D had recorded some months after the incident. That call included the following exchange:

"[D]: Why did you try to rape me and break my arm?

"[Defendant]: I tried to force myself on you because I wanted to have sex with you. It’s pretty obvious.

"[D]: Okay. So—

"[Defendant]: * * * It’s been months before I—I had made love with you, and I wanted to have sex with my wife. You didn’t want to, so I selfishly thought I deserved it.

"[D]: Okay.

"[Defendant]: I was wrong. I’ve told that—and I’ve told the counselor, I told you, I’ve told everybody I was horribly wrong in doing this. I’ve not once ever defended myself for trying to hurt you like that. I was fucked up. I was not in my right mind, and I—I felt that I deserved something that I didn’t, because I didn’t see you as a person, I saw you as a possession.

"[D]: So, you think in two counseling sessions, all of this shit’s been resolved?

"[Defendant]: I know that what I did was horribly wrong. It’ll be a long time before I ever forgive myself for it.

"[D]: And you should. I mean, you did it.

"[Defendant]: I know I—I know I did it. * * *

"[D]: You could be in jail for what you did. Do you understand that?

"[Defendant]: Yes—

"* * * * *

"[D]: You can’t rape somebody, break their arm, and not serve the time. And you have.

"[Defendant]: You can’t—really?

"* * * * *

"[D]: You—you did it in front of our four-year-old child.

"[Defendant]: I know, and I can’t take that back. I’ve just gotta make sure I’m a better person."

Other witnesses testified about splinting D’s arm, which appeared to be broken, after she called them for assistance. One of those witnesses testified that C was crying and said, "Daddy pinned Mommy and hurt her naked on the bed."

In early 2014, a law enforcement officer arranged a pretext call between D and defendant; that recorded call, which was played for the jury, included the following exchange:

"[Defendant]: Okay. But [the incident was] months and months ago. And that’s why I went to counseling.

"[D]: Okay. But you still did it. You still—you still did it. And you forced sex in front of [C], and that’s illegal. That was over several crimes in one.

"[Defendant]: I honestly there—I didn’t really force sex in front of [C].

"[D]: Okay. [C] came in the room while it was happening.

"[Defendant]: Okay. But yeah. I didn’t sit there and say, ‘[C], sit down and watch me force sex on your mom.’

"* * * * *

"[D]: * * * I don’t even understand why the hell you did it that got us here.

"[Defendant]: I did it because I wanted to have sex with my wife. And she—and I felt I deserved it no matter what she said."

After defendant was arrested and taken into custody, he was interrogated by a Sergeant Jurgens. During that recorded interrogation, defendant acknowledged that he had pushed D onto the bed (although he said, consistent with his later trial testimony, that she was on her back), pulled down her pants, and that D was telling him "no" and to stop. Defendant emphatically and repeatedly denied that he had penetrated D with his penis, stating that "there was the attempt, but there was no actual intercourse," because he was not erect. Defendant told Jurgens, "That’s the one silver lining in the sea on my part is that I—I was glad I didn’t * * * I mean, it’s horrible what happened. But at least I didn’t go to that—that point." Defendant said that, once he "realized what [he] was doing, we stopped" and he left the house. Late in the interrogation, after Jurgens had repeatedly asked why D would have said that defendant penetrated her and that she felt pressure in her vagina, defendant said that he "probably" had put his finger inside D, in relation to asking her "if she was wet."

Over defendant’s privilege-based objection, the state also called defendant’s counselor, Henderson, to testify about statements that he had made to her about the June 2013 incident during counseling sessions that took place before defendant was questioned by police. The court directed Henderson to testify. After refreshing her memory by consulting her notes, Henderson testified that defendant had said, with respect to an incident involving D, "I pressured her for sex," that "he had forced himself on her and broke her arm," that he had "[g]rabbed her arms and bruised her," and that C had walked in during the assault. On cross-examination, Henderson acknowledged that she had written a note, during her first session with defendant, "Neighbor told police. Saw her arm—no charges."

Defense counsel had indicated before trial that defendant was "almost certainly going to testify," and he did. Defendant described his sexual relationship with D, which he testified included acting out "fantasy role-play of—of rape." With respect to the June 2013 incident, defendant acknowledged that D had said she did not want to have sex. Defendant then testified that he had placed his hands on D’s shoulders, pushed her onto the bed, pulled her pants down, undressed himself, straddled her, and unsuccessfully attempted to penetrate her with his penis. Defendant acknowledged that, after he got on the bed with D, "it did...