State v. Roberts

288 Or.App. 145

406 P.3d 117

STATE of Oregon, Plaintiff-Respondent,

v.Steven Lamar ROBERTS, Defendant-Appellant.

A157462

Court of Appeals of Oregon.

Submitted March 29, 2016.

October 4, 2017

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

Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and David B. Thompson, Assistant Attorney General, filed the brief for respondent.

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

DEHOOG, J.

Defendant appeals a judgment of conviction for one count each of first-degree rape, ORS 163.375, first-degree sodomy, ORS 163.405, and incest, ORS 163.525. We write only to address defendant's first and second assignments of error, in which defendant asserts that the trial court erred in admitting, over his OEC 403 objection, evidence of two prior uncharged acts of sexual violence against the victim. Defendant contends that the trial court abused its discretion in admitting that evidence, because its probative value was substantially outweighed by the danger of unfair prejudice that the evidence presented. As we explain below, we are unable to discern the basis on which the trial court admitted the challenged evidence and, therefore, cannot evaluate whether it was error to admit that evidence over defendant's OEC 403 objection. Accordingly, we vacate defendant's convictions and remand for the trial court to provide an explanation.¹

The state prosecuted defendant for raping, sodomizing, sexually abusing, and engaging in incest with his disabled, adult daughter. Each of the rape, sodomy, and sexual abuse charges alleged that defendant had subjected the victim to "forcible compulsion," an element common to those offenses as charged. See ORS 163.375(1)(a) (first-degree rape);² ORS 163.405(1)(a) (first-degree sodomy);³ ORS 163.427(1)(a)(B) (first-degree sexual abuse).⁴ The state's case relied upon a description of events that the victim had given others shortly after calling 9-1-1 to report the alleged incident. As relevant to the issues on appeal, the victim told a sexual assault examiner and an investigating officer that defendant had grabbed her, pushed her onto his bed, pulled down her pants, and put his penis into her vagina. She described defendant as having put his weight on her belly, held back her arm, and choked her; she said that she had tried to fight defendant off, but that she had not been strong enough. Consistent with that description, the victim subsequently testified before a grand jury that defendant had forced her to have sexual intercourse with him against her will. The victim further told the grand jury that, during the incident, she had cried and asked defendant to stop, but that he had continued to force himself on her.

By trial, however, the victim's description of events had changed. The victim testified at trial that she and defendant had engaged in consensual sexual intercourse while she was under the influence of alcohol and various medications. Having anticipated that the victim might change her testimony,⁵ the state moved in limine for a ruling allowing the state to introduce evidence that, in its view, would refute the victim's characterization of defendant's conduct as consensual, rather than forcible. Specifically, the state sought to introduce evidence that, on two earlier occasions, defendant had subjected the victim to sexual violence. On the first occasion, which occurred approximately 13 years before the charged events, defendant "rammed" a 40-ounce bottle inside the victim's vagina so forcefully that she began to hemorrhage; on the second occasion, at around the same time, defendant burned the victim with a cigarette "on top of" her vagina. Among other things, the state argued, that evidence was relevant and admissible under OEC 404(3) to prove that the victim had not consented to defendant's conduct during the charged incident.⁶

Notably, the state did not clearly or consistently explain how that evidence of defendant's earlier conduct tended to show that he had, in the charged incident, used or threatened force against the victim, or, as both parties characterize that element, that the sexual conduct had not been consensual.⁷ That is, even though the ultimate focus of the state's argument appears to have been on the issue of consent, the state's reasoning as to how the prior abuse was probative of that issue was, at best, vague. Broadly speaking, however, the state's position at trial was that, because of the victim's relationship and sexual history with defendant, her belief that the charged events had been "consensual" was neither credible nor probative.

At a pretrial hearing on the state's motion, the victim testified regarding her relationship with defendant and the specific prior bad acts. During that offer of proof, the victim explained that her father had "been in and out of [her] life" for her entire life of 37 years. She acknowledged that she suffered memory problems due to a stroke, that she had struggled with alcohol and opioid addiction for much of her life, and that she often confused the past and the present. The victim further testified that defendant had physically assaulted her in the past, and said that she had reported those assaults. She also testified that, over the preceding 15 years, she and defendant had engaged in sexual intercourse an unknown number of times—but "less than 20"—most often while both defendant and she had been intoxicated. According to the victim, defendant considered her to be "his girlfriend" and did not believe that she was his biological daughter; he therefore considered it "okay to have sexual things going on."

That sexual contact had, however, occasionally been physically violent. Two of the violent occasions were those that the state sought to present at trial. The victim described the incident involving a 40-ounce bottle as follows:

"[VICTIM]: *** [T]here was a sexual [assault] with *** a 40 bottle.

"[PROSECUTOR]: And what *** did you report to the police that he did with the 40 bottle?

"[VICTIM]: Put it in my vagina and rammed it and it made me bleed and hemorrhage[.]"

Later in her testimony, the victim again mentioned the 40-ounce bottle before answering the prosecutor's questions about the cigarette incident:

"[PROSECUTOR]: *** [I]n those times when he's intoxicated and he's choking, slapping or hitting, was there also sexual intercourse *** or other forms of sexual acts in those incidents?

"[VICTIM]: Besides that bottle—that's the only thing that I can remember, that bottle.

"[PROSECUTOR]: Do you recall any [incidents] with cigarettes or lit cigarettes?

"[VICTIM]: Yeah, I know about my body right here, yep. I know I got burnt. He burnt with a lit cigarette.

"[PROSECUTOR]: So you remember that incident, too?

"[VICTIM]: Yeah, 'cause you just brought it up to my attention. Yeah."

The victim did not characterize defendant's sexual relationship with her consistently. For example, at one point she testified, "I didn't feel comfortable with that at all, but he did not once force me to do anything. But I was under pressure because I've always been scared of him *** [b]ecause of the abuse." At another point she said, "[T]here [were] times *** when I did enjoy having intercourse with my dad *** because I was under the influence of alcohol. *** And it made me feel a little tougher to just deal with things [.]" As for the charged incident, the victim described it at the pretrial hearing as a time when the intercourse had been, in her words, "consensual," because she had been "drinking [her] alcohol at the time" and "was under [her] medications."

Based on that testimony, the prosecutor argued that the incidents involving the 40-ounce bottle and the cigarette burn were relevant, as follows:

"I would submit: here is a woman who's been significantly abused by the defendant, despite all of her assertions today about the incident at bar. I think her state of mind as to what she perceives is consensual and not consensual is certainly an issue for the jury.

"And I think somebody off the street who has a sexual encounter with another person, who claims that it was a forcible compulsion, then recants, then says it is [forcible], then recants [again—]

"I think *** that person's state of mind and their ability to say what is compulsion or not is certainly a relevant issue for the defense. And I would submit that, for no other way to characterize it, she's a broken person.

"And she's a broken person due in large part to [defendant] and the testimony you just heard. She's been penetrated with a 40-ounce bottle. She's had a lit cigarette applied to her vagina. She's been strangled, slapped, beaten on numerous occasions. ***

"And so I would submit that she be allowed to testify, within the context of her, what is consensual and what is not because just because what she deems or calls consensual does not necessarily meet the legal definition of consensual* * *."

(Emphases added.) The prosecution further argued:

"If a parent sexually abuses their child for 10 years * * *, but all of a sudden there's an incident * * * when the person was an adult, and they report a rape and they have this strong bond relationship * * * with * * * their abuser, the context by which that * * * one incident occurred and what the victim perceives as consensual or not consensual was occurring to them, is wholly relevant for *** the jury to hear, for the sole purpose of, does she even know what ‘consensual’ is? Can she even say that?

"For her, ‘consensual’ is *** on a sliding scale[.]"

(Emphasis added.)

Defendant objected to the prior bad acts evidence, arguing that it was irrelevant propensity evidence and unduly prejudicial. See OEC 403 ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice[.]"). Defendant argued that, to the extent that...