State v. Oxford

1

336 Or.App. 637

STATE OF OREGON, Plaintiff-Respondent, v. NATHAN OXFORD, aka Nathan Daniel Oxford, Defendant-Appellant.

A178818

Court of Appeals of Oregon

December 11, 2024

Argued and submitted October 30, 2024

Multnomah County Circuit Court 140230856; Andrew M. Lavin Judge.

Erik Blumenthal, 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.

Erica L. Herb, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum Attorney General, and Benjamin Gutman, Solicitor General.

Before Tookey, Presiding Judge, Kamins, Judge, and DeVore, Senior Judge.

TOOKEY, P. J.

Defendant appeals a judgment of conviction for two counts of first-degree sodomy, ORS 163.405 (Counts A and B^[1]) for his conduct against a child, G. As against a different child, A, he was also charged with, but not convicted of five counts of second degree-sodomy, ORS 163.395 (Counts C through G), and five counts first-degree sexual abuse, ORS 163.427 (Counts H through L).

On appeal, defendant raises five assignments of error. Having considered his arguments and the record, we conclude that defendant has not identified any reversible error. Consequently, we affirm.

First Assignment of Error. In his first assignment of error, defendant contends that "the trial court erred when it admitted evidence of defendant's sexual fantasies." In particular, defendant contends that the trial court erred in admitting propensity evidence that defendant told G and As mother (1) that he "has a sexual interest in children, and that he knows that it's wrong, but he nevertheless has that interest," and (2) that he "has fantasies about taking his daughter's virginity and having sex with her."

The trial court admitted that propensity evidence for the limited purpose of proving that, with regard to charges of first-degree sexual abuse relating to A, defendant's contact with A was made with a "sexual purpose." Consistent with the propensity evidence being admitted only for that limited purpose, the trial court provided the jury with a lengthy and detailed limiting instruction three times over the course of the trial: first, as part of its preliminary instructions to the jury; second, shortly before the propensity evidence was admitted; and third, as part of the instructions that the jury received before it began deliberating. The jury was also provided with a written copy of the instruction for its deliberations.

In the instruction regarding its use of the propensity evidence, the jury was instructed, among other points, that it "may not use th[at] evidence in any way when deciding whether the State has proved beyond a reasonable doubt that the Defendant is guilty of first-degree sodomy as alleged in counts A and B, or second-degree sodomy, as alleged in counts C, D, E, F, and G"; that the propensity evidence may not be used "to determine that because the Defendant may have engaged in those other instances of sexual behavior, he is guilty of either first-degree or second-degree sodomy"; and that the only purpose that the propensity evidence could be used for is to determine whether "Defendant acted with the purpose of arousing or gratifying the sexual desire of himself or the other individual alleged in the count with respect to first-degree sexual abuse."

In full, the jury instruction given during the preliminary instructions, which was, in sum and substance, the same instruction provided to the jury two other times during trial and provided to the jury in written form, stated:

"During the course of this trial, you will likely hear testimony regarding instances of the Defendant's sexual behavior that goes beyond the behavior that the State has alleged in each of the counts in this case. That evidence, of other sexual behavior, is admissible for only a limited purpose. So I must explain to you how you can consider that evidence and how you cannot.

"And I'll just let you know, as I go through this instruction, I'm going to give you this instruction twice more. So if you don't absorb it all immediately, you will have it in written form in the final jury instructions when you deliberate, and I am going to give the instruction to you a few more times at the appropriate parts of the trial.

"First, when you deliberate at the end of this trial, you must decide whether any of the instances of sexual behavior occurred. If you conclude that any of the instances occurred, you can take the evidence of those instances into consideration in determining whether the State has proven-proved-beyond a reasonable doubt only one particular element of first-degree sexual abuse as alleged in counts H, I, J, K, and L. "In order to prove the Defendant's guilt on any of those counts, the State must prove, among other things, that the Defendant subjected the individual alleged in the count, to sexual contact. To prove that sexual contact occurred, the State must prove that the Defendant engaged in the alleged contact with the purpose of arousing or gratifying the sexual desire of either party to the contact.

"The only purpose for which you may consider the evidence of other instances of the Defendant's sexual behavior, is to determine whether it demonstrates that the Defendant acted with the purpose of arousing or gratifying the sexual desire of himself or the other individual alleged in the count with respect to first-degree sexual abuse as alleged in counts H, I, J, K, and L. You may not use the evidence for any other purpose.

"For example, you may not use the evidence for the purpose of concluding that simply because the Defendant may have engaged in those other instances of sexual behavior, he is guilty of the counts of first-degree sexual abuse alleged in counts H, I, J, K, and L. In other words, the evidence of the other instances of sexual behavior is not by itself sufficient to prove the offenses alleged in those counts.

"The State must still prove each of the other elements of first-degree sexual abuse beyond a reasonable doubt, and you may not use the evidence of the other instances of the Defendant's sexual behavior when deciding whether the State has proved those other elements.

"You also may not use the evidence of the other instances for any other purpose. You may not use the evidence in any way when deciding whether the State has proved beyond a reasonable doubt that the Defendant is guilty of first-degree sodomy as alleged in counts A and B, or second-degree sodomy, as alleged in counts C, D, E, F, and G. For example, you may not use the evidence to determine that because the Defendant may have engaged in those other instances of sexual behavior, he is guilty of either first-degree or second-degree sodomy. You also may not consider the other evidence for the purpose of concluding that the Defendant should be convicted because he is a bad person."

(Emphases added.)

On appeal, defendant argues that the trial court should have excluded the propensity evidence because, among other reasons, "[e]vidence that defendant wanted to take his biological daughter's virginity is not similar to allegations that he committed sexual abuse of a boy"^[2]; "it is hard to imagine more inflammatory character evidence than an accusation that defendant wanted to commit incest against his adolescent daughter"; and "[n]o juror could partition their mind and sequester their consideration of that evidence so that it only applied to some counts, but not others." Defendant also contends that the "trial court's admission of the evidence was not harmless and it deprived defendant of his [federal] due-process right to a fair trial."

The state responds that defendant did not preserve his due-process argument and that "the trial court properly admitted the disputed other acts evidence." The state also argues that any error in admitting the evidence was harmless "because the jury only convicted defendant of the charges for which the jury was instructed that the evidence was not relevant," i.e., first-degree sodomy.

We agree with the state that any error was harmless. Two legal points lead us to that conclusion: First, we presume that jurors follow their instructions "absent an overwhelming probability that they would have been unable to do so." State v. Williams, 276 Or.App. 688, 695, 368 P.3d 459, rev den, 360 Or. 423 (2016) (internal quotation marks omitted); see Greer v. Miller, 483 U.S. 756, 766 n 8, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987) ("We normally presume that a jury will follow an instruction to disregard inadmissible evidence inadvertently presented to it, unless there is an overwhelming probability that the jury will be unable to follow the court's instructions, and a strong likelihood that the effect of the evidence would be devastating to the defendant." (Internal citation and quotation marks omitted.)). "A defendant's 'bare assertion' that a jury would not be able to follow an instruction does not establish an overwhelming probability that the jury could not follow it, particularly when the trial court tailors the instruction to the specific error alleged." State v. Shinnick, 288 Or.App. 847, 849, 407 P.3d 877 (2017), rev den, 407 P.3d 877 (2018).

And second, even with regard to "potentially inflammatory" propensity evidence, a limiting instruction can operate to adequately "address[]" the inflammatory nature of such evidence. State v. Terry, 309 Or.App. 459, 465, 482 P.3d 105 (2021). That is true even in prosecutions for sex crimes when the propensity evidence is evidence of a defendant's prior deviant sexual conduct. Id. at 461, 465 (holding that, in trial for two counts of first-degree sexual abuse, "potentially...