State v. Smith

309 Or.App. 268

482 P.3d 174

STATE of Oregon, Plaintiff-Respondent,

v.Donevin Michael SMITH, Defendant-Appellant.

A168022

Court of Appeals of Oregon.

Submitted May 11, 2020.

February 10, 2021

Ryan Scott filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge.

SHORR, J.

Defendant appeals from a judgment of conviction for multiple sex offenses stemming from allegations that he sexually abused his younger sister and cousin when he himself was a minor of 15 years old. Defendant raises five assignments of error. In the first, he contends that the trial court erred in denying his motion to dismiss two counts that were first filed in juvenile court but subsequently refiled as Measure 11 offenses in adult criminal court pursuant to ORS 137.705(2) (2015) and ORS 137.707 (2015).¹ He argues that the statutory process by which he was automatically waived into adult court violated his procedural due process rights by stripping him of the privileges of juvenile court without the process of a hearing. For reasons we explain later, we reject defendant's first assignment and conclude that the trial court did not err in that regard.

In his second assignment, defendant argues that the trial court erred in excluding certain defense expert testimony from his jury trial. Applying the then-controlling law in State v. Black , 289 Or. App. 256, 407 P.3d 992 (2017) ( Black I ), rev'd. , 364 Or. 579, 437 P.3d 1121 (2019) ( Black II ), the trial court ruled that it was permissible for the expert to speak generally about best practices for child forensic interviews, but that certain testimony that appeared to apply those best practices to critique the specific child interviewing at issue in the case was tantamount to vouching and was impermissible. Black I was subsequently reversed by the Supreme Court, and we now understand the type of testimony at issue to be admissible. Black II , 364 Or. at 579, 437 P.3d 1121. The state argues only that the issue was not preserved. We conclude that the issue was preserved and agree that, under the more recently announced rule in Black II , the trial court erred by excluding the relevant testimony. However, we conclude that the error was harmless as to Counts 6 and 7, and, thus, we reverse the convictions for Counts 1 through 5 only. As a result, we do not need to reach defendant's third and fourth assignments, which pertain to now moot alleged sentencing errors affecting those reversed counts. Finally, we reject defendant's fifth assignment of error without further written discussion.

I. FIRST ASSIGNMENT OF ERROR—WAIVER INTO ADULT COURT

A. Facts

The facts pertinent to defendant's first assignment of error are mainly procedural and undisputed. The Washington County Juvenile Department initially filed a petition against defendant, then 15 years old, alleging a single count of attempted sexual abuse in the first degree against SS, his 10-year-old cousin. The juvenile court held a preliminary hearing, and defendant was conditionally released to his father. Further proceedings occurred in the juvenile case for the next several months. Defendant was later indicted on eight separate counts in Washington County Circuit Court. Counts 6, 7, and 8 pertained to the same victim, SS, and the same incident as the conduct at issue in the juvenile petition. However, instead of attempted sexual abuse in the first degree, the crime committed against SS alleged in the juvenile petition, the new criminal indictment alleged two counts of sexual abuse in the first degree and one count of unlawful sexual penetration in the first degree. Unlike the previous crime charged in juvenile court, the new offenses constituted Measure 11 crimes when committed by an individual of at least 15 years of age. See ORS 137.707(1)(a), (4)(a) (conferring adult liability for certain listed crimes). Then-existing law required the prosecution of 15-, 16-, and 17-year-old minors in adult criminal court when certain serious felonies were alleged, and expressly forbid a district attorney from pursuing such a case in juvenile court. See ORS 137.707(1) - (4). Defendant filed both a demurrer from the indictment and a motion to dismiss the indictment in the trial court.

In his accompanying memorandum in support of the demurrer and motion to dismiss, defendant acknowledged that ORS 137.707 authorized his prosecution in adult criminal court for Measure 11 offenses, including sexual abuse in the first degree and unlawful sexual penetration in the first degree. Defendant also acknowledged that ORS 137.707(1)(b) prohibited the prosecutor from filing a juvenile court petition when Measure 11 offenses were alleged and the defendant was at least 15. Nevertheless, defendant argued that the statute was silent on "what happens when the Juvenile Court already has jurisdiction pertaining to a single criminal episode that has presumably occurred, and the State now believes that episode included Measure 11 level conduct." Citing ORS 419C.005(1) (2015),² defendant argued that, once juvenile court jurisdiction attached, the juvenile court "has exclusive jurisdiction until that child is transferred from the court's jurisdiction." Defendant argued that "[i]nitiating a prosecution in adult court for the same criminal episode of the child that is currently subject to Juvenile Court jurisdiction without going through the proper waiver basis is an act outside the law." The state did not file a written response to those arguments, but moved to dismiss defendant's juvenile case the following day. Defendant made similar arguments in the juvenile court opposing that motion and, after a hearing, the juvenile court granted the state's motion to dismiss the juvenile petition. Finally, several weeks later, the trial court denied defendant's motion to dismiss the adult indictment and did so without a hearing. Defendant reiterated his jurisdictional arguments at trial after the state had rested its case, and those arguments were again denied. On appeal, defendant assigns error to the trial court's denial of his motion to dismiss with respect to Counts 6 and 7.³

B. Analysis

We review the question of whether the trial court was required to send the case to juvenile court for a hearing for legal error. State v. Gaige , 304 Or. App. 471, 472, 468 P.3d 532, rev. den. , 367 Or. 115, 473 P.3d 56 (2020). Defendant argues that, once juvenile jurisdiction attached for the charges involving SS, he possessed a vested interest in the rights and protections of juvenile court. Defendant contends that the Fourteenth Amendment to the United States Constitution granted him the procedural due process right to a hearing before those privileges could be extinguished and the case moved to adult criminal court. Because he was not afforded a hearing, he argues, Counts 6 and 7 should have been dismissed. In response, the state argues that defendant did not have a constitutional right to a hearing, because ORS 137.705 and ORS 137.707 mandated defendant's prosecution in adult court and afforded the juvenile court no discretion over whether to waive jurisdiction.

We considered a similar question just last year in Gaige , 304 Or. App. at 472, 468 P.3d 532. There, the defendant, who was 16 at the time, was charged in adult criminal court with several Measure 11 and non-Measure 11 offenses. Id . The defendant moved to dismiss the indictment, arguing that, even though the charges had been first brought in adult court and there was no existing juvenile case, the juvenile court had jurisdiction under ORS 419C.094, because he had been taken into custody before the charges were filed.⁴ Id . He similarly argued that, because he was under juvenile court jurisdiction, he was entitled to a juvenile court hearing under the Due Process Clause of the Fourteenth Amendment to determine whether he should be remanded to adult court. Id . at 472-73, 468 P.3d 532. As in the instant case, the defendant directed us to Kent v. United States , 383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966), and In re Gault , 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), as authority for that contention. Gaige , 304 Or. App. at 473, 468 P.3d 532.

In Gaige , we concluded that, even if juvenile court jurisdiction had been invoked, the filing of an indictment in adult criminal court alleging Measure 11 offenses "divested the juvenile court of jurisdiction by operation of law." Id . at 474, 468 P.3d 532. This was because, under ORS 137.705(2)(c), " ‘[t]he filing of an accusatory instrument in a criminal court under ORS 137.707 divests the juvenile court of jurisdiction in the matter if juvenile court jurisdiction is based on the conduct alleged in the accusatory instrument or any conduct arising out of the same act or transaction.’ " Gaige , 304 Or. App. at 474, 468 P.3d 532 (quoting ORS 137.705(2)(c) ). Further, we concluded that Kent and Gault did not stand for the proposition that the defendant asserted. Gaige , 304 Or. App. at 474, 468 P.3d 532. We followed the Ninth Circuit's interpretation of those cases, as articulated in Alvarado v. Hill , 252 F.3d 1066, 1069 (9th Cir. 2001). Gaige , 304 Or. App. at 474-75, 468 P.3d 532. We summarized Alvarado ’s holding: "[D]ue process requires the sort of hearing for which a defendant argues only when a state's statutory scheme grants a juvenile court discretion to determine whether a youth should be remanded to adult court or, instead, remain in juvenile court." Id . at 474, 468 P.3d 532 (emphasis in original). Because ORS 137.707 left the juvenile court with no discretionary power in this regard, "due process did not require defendant be granted a hearing at which the court could exercise that nonexistent authority." Id . at 475, 468 P.3d 532.

Here, defendant argues that Gaige should not control because...