State v. Nelson

246 Or.App. 91

265 P.3d 8

STATE of Oregon, Plaintiff–Respondent,

v.Monty Lee NELSON, Defendant–Appellant.

05C48415; A133642.

Court of Appeals of Oregon.

Argued and Submitted April 29, 2010.Decided Oct. 19, 2011.

Jesse Wm. Barton argued the cause for appellant. On the briefs were Charles M. Simmons.

Linda Wicks, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and ROSENBLUM, Senior Judge.

WOLLHEIM, J.

Defendant appeals from a conviction of six counts of using a child in a display of sexually explicit conduct, ORS 163.670, and one count of sexual abuse in the third degree, ORS 163.415. Defendant raises eight assignments of error. We write at length only to address defendant's first and fifth assignments of error. In those assignments, defendant contends that the trial court erred in excluding evidence that the victim had previously falsely accused her stepbrothers of rape and her stepfather of sexual abuse. Under State v. LeClair, 83 Or.App. 121, 130–31, 730 P.2d 609 (1986), rev. den., 303 Or. 74, 734 P.2d 354 (1987), if there is some evidence from which the court could find that the victim had made a false accusation of past sexual abuse, the court must balance whether the probative value of that evidence is “substantially outweighed by the risk of prejudice, confusion, embarrassment or delay.” Because it is not clear that the court performed that balancing test in deciding to exclude evidence about the victim's prior false accusations, we vacate and remand.¹

Because the trial resulted in convictions on all counts, we state the background facts in the light most favorable to the state. State v. Haugen, 349 Or. 174, 176, 243 P.3d 31 (2010). In 2000, when the victim was 13 years old, she went to live with her grandparents. Defendant is the victim's grandfather. In late July 2002, when the victim was a sophomore in high school, the victim's grandmother, defendant's wife, left defendant and moved out of the house. Beginning in March or May 2004, when the victim was 17 years old, defendant told the victim to model naked for him and instructed her on how to pose. Defendant also bought lingerie for the victim to wear while she posed for him. Defendant showed the victim a book of pin-up paintings and a pornographic magazine. The victim told defendant that she was uncomfortable posing for him, and, instead, he had her dance to music for him. Defendant told the victim that, if she continued to dance for him, he would let her be in marching band her senior year, which the victim wanted to do. The victim usually wore only lingerie or underwear when dancing for defendant.

Sometimes after the victim had danced for him, defendant would rub her shoulders, back, and legs, explaining that he did not want her muscles to get sore. Defendant told the victim to take off her bra so that the bra straps would not get in the way. Defendant used a vibrating hand massager to rub the victim's back and legs. Defendant also touched the victim's vagina with the hand massager and with his bare hand. All of the dancing, posing, and modeling occurred between March or May and October 2004.

The victim told her boyfriend and two other friends about the dancing while it was happening, but told them not to tell because she did not want to create legal problems or “a big scene.” The victim planned to wait until she turned 18 and then move out of defendant's house. She moved out of the house three days after her eighteenth birthday.

The victim testified that she decided to tell her school principal what had happened because she was afraid that the same thing would happen to her nine-year-old female cousin. A detective investigating the allegations had the victim make a pretext phone call to defendant to try to get him to confess. During the phone call, the victim said she wanted to visit defendant, but she was worried about coming by herself. She also said that she did not want the modeling, touching, and nudity to start again. Defendant said, “You don't have to worry about that. That's not something you have to concern yourself about or think about.”

The grand jury indictment charged defendant with six counts of using a child in a display of sexually explicit conduct, ORS 163.670, and one count of sexual abuse in the third degree, ORS 163.415.

After defendant was indicted, he filed a motion entitled “MOTION TO OFFER OEC 412 EVIDENCE” (uppercase in original), in which he sought a ruling allowing certain evidence concerning the victim.² He made 14 offers of proof in a memorandum in support of the motion. In the first proffer, he sought to introduce evidence that the victim had previously accused her stepbrothers of raping her, that her accusation was investigated but did not result in prosecution, and that her stepbrothers denied the accusation. In the ninth proffer, defendant also sought to introduce evidence that the victim had told her mother that her stepfather had sexually abused her, and that she had since recanted. Defendant stated that he anticipated that the state would object to admission of those proffers under OEC 412,³ which generally bars evidence of a victim's past sexual behavior in certain sex offense cases.

With respect to the first proffer, defendant asserted in his memorandum that the evidence was not barred by OEC 412 for three reasons. First, he argued that OEC 412 applies only to prosecutions under ORS 163.355 to 163.427; in other words, it applied only to the misdemeanor count of third-degree sexual abuse (ORS 163.415) and not to the six felony counts of using a child in a display of sexually explicit conduct (ORS 163.670). Second, he contended that OEC 412 bars only evidence of an alleged victim's prior sexual behavior and the evidence that the victim had falsely accused her stepbrothers of rape did not constitute sexual behavior. Third, he asserted that, even if OEC 412 were to apply, the rule permits the use of evidence of an alleged victim's past sexual behavior that relates to the motive or bias of the alleged victim.

Defendant made a combined argument in support of the eighth and ninth proffers in the memorandum. The eighth proffer is not at issue on appeal; it concerned evidence that the victim was aware that her father and stepfather had accused each other of abusing the victim. As part of his argument in support of the ninth proffer, which concerned sexual abuse by the victim's stepfather, defendant asserted, “The evidence is relevant to show the general environment of false abuse accusation, the fact that the victim was exposed to it, and that she has in the past presented conflicting reports of the truth or falsity of such allegations.” Defendant further argued that the evidence “is relevant to demonstrate a pattern of false accusation and the victim's knowledge of how to report abuse as a tool of vengeance.”

The state filed a memorandum in response to defendant's motion. With respect to the first proffer, the state acknowledged that evidence of prior false accusations is not excluded by OEC 412, but it contended that there was no evidence that the victim's accusation against her stepbrothers was false. The state also relied on LeClair to argue that the court should exclude the evidence on the grounds of delay and likely jury confusion. The state responded to defendant's combined argument on the eighth and ninth proffers in part by saying that “the wrongs of other parties are not properly used against the victim in a case.” The state also asserted that it could not “adequately be prepared to argue the validity or admissibility of a so-called ‘false accusation’ without information regarding such an accusation or alleged recantations.”

At the hearing on defendant's motion, the court stated, “I have read the Defendant's Motion over carefully, received the State's Response last night, and have had a chance to review that, very closely.” The trial court ruled on defendant's proffers in sequence, starting with the first proffer, regarding evidence that the victim had falsely accused her stepbrothers of rape:

“And in charges—not the first six counts against [defendant], but on count 7, the Sex Abuse, I believe it's in the third degree, the Rape Shield Law would apply. Because of that, the fact that the victim previously accused her stepbrothers of rape would seem to me could not come in under 412 in this case, because we can't separate count 7 from the first 6.

“Otherwise, the fact of that accusation I think would be relevant for the jury to consider, and the fact that there was no prosecution.

“I would not want, even if I'd allowed it in, anybody to get into whether we think she was telling the truth or not, but just that there was no prosecution.

“But unless counsel can point me to some exception, I see no way that that can come in, and therefore it is denied.”

(Emphasis added.) Defense counsel did not respond orally and the court did not address defendant's argument that OEC 412 does not apply because false accusations do not constitute sexual behavior. Nor did the prosecutor respond orally to inform the court that the prosecutor disagreed with the court's interpretation of OEC 412. The court moved on to the subsequent proffers.

When the court reached the eighth and ninth proffers, it addressed them together, as the parties had: “I have trouble with 8 and 9 in that they are allegations about bad acts of other people. And I tend to agree with the State on both of those and that that evidence will not be allowed to be—be introduced.”

After the hearing, the case went to trial. At trial, the victim testified consistently with the facts as set forth above. The state admitted evidence of the pin-up book, the pornographic magazine, the vibrating hand massager, a handwritten list of types of lingerie in defendant's handwriting, and the...