State v. Wellington

548 P.3d 146

332 Or.App. 44

STATE of Oregon, Plaintiff-Respondent,

v.Jerry Thomas WELLINGTON, Defendant-Appellant.

A177520

Court of Appeals of Oregon.

Submitted October 27, 2023

April 17, 2024

Clackamas County Circuit Court, 17CR09581; Ann M. Lininger, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Zachary Lovett Mazer, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.

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

Before Tookey, Presiding Judge, and Egan, Judge, and Kamins, Judge.

EGAN, J.

₄₅In this criminal case, defendant appeals a judgment of conviction, after a jury trial, for 30 sexual offenses committed against defendant’s stepson, J.¹ In his first two assignments of error, defendant argues that the prosecutor committed prosecutorial misconduct when he argued to the jury that the state could have requested that the grand jury charge defendant with more crimes but did not, and when he argued that the state could have but did not charge defendant with misdemeanor prostitution. In defendant’s third assignment of error, he argues that the trial court erred by failing to sua sponte strike J’s mother’s "vouching" testimony. Defendant did not preserve his assignments of error, and he requests plain error review. For the reasons that follow, we affirm.

I. BACKGROUND

J, who was born in 1999, lived with his mother (Miller), defendant (his stepfather), his older brother, and his younger brother (C). J testified that, in 2009, after Miller and defendant separated, J stayed with defendant, who sexually abused J on "countless" occasions—sometimes once or twice a week, other times three to five times a week, and sometimes the abuse did not occur for long stretches of time. In summary, the incidents of abuse included hand-to-penis touching, mouth-to-penis touching, penis-to-anus touching, and touching each other’s buttocks. The incidents of abuse occurred in defendant’s bedroom on the bed, J’s bedroom on the bed and floor, the dining room, the bathroom, and defendant’s car.

There are two instances of abuse that are specifically relevant to defendant’s assignments. When J was 12 years old, defendant paid him $50 to put his mouth on defendant’s penis, which J did. Soon after that, defendant offered J $200 to have anal sex, but J declined. Defendant later offered J $100 to have anal sex, and J agreed.

In 2013, at age 14 and after a fight with defendant, J moved to Miller’s home in Wyoming. The next year, when ₄₆J was 15 years old, he told Miller that defendant had abused him, but she doubted him. In the fall of 2016, when J was 17 years old, he disclosed to a counselor that he had been abused, but he did not go into detail about the abuse. About a month later, during a group counseling session with his family,² J told Miller that he had been "molested and sexually abused" by defendant. A child protective services worker interviewed J at the local police station in Wyoming while a police officer was present. In January 2017, J gave a recorded statement to Clackamas County Sheriff Detective Geoff Erichsen; that interview was recorded and played at trial. Erichsen interviewed defendant, who denied any wrongdoing.

A grand jury indicted defendant on 32 counts of sexual abuse. Before trial, the state dropped two of the counts. At trial, the state presented J’s recorded statement as well as the testimony of several witnesses. Defendant did not call any witnesses.

The court instructed the jury that the facts constituting each of the 30 counts must be a "[s]eparate, apart, and distinct incident." The court also instructed the jury that it must "[b]ase [its] verdict on the evidence and these instructions. The lawyers’ statements and arguments are not evidence."

During the state’s closing arguments, the prosecutor explained the evidence that corresponded to each of the 30 counts. The prosecutor explained that, even though the jury had heard testimony about many criminal acts, the state had to elect the facts that corresponded to each count:

"And I actually asked [J], detail it for me. And so he laid it all out for you again, probably more times than you wanted to hear, but, you know, we just wanted to make sure that you understood, A, how prevalent it was; and, B, we had information and evidence in the record that covered these counts, okay? And we do. And so that’s why you’ll notice that on a lot of these counts, I will say, incident in defendant’s bedroom or incident in [J’s] bedroom, because that’s what he said, that’s really where it happened the most.

₄₇"And then [J] was even able to break down some, you know, very specific details about specific incidents. And, you know, I’ve attached some of those to some of these counts, as well. You’ll remember as we go along. There were so many, though, and frankly, I could have, or we could have, or the—asked the grand jury tocharge more counts. But we didn’t, you know, we just stuck with the 32-count indictment. Because there are some incidents that you’ll remember and that I’ll talk about that I haven’t even used as an election in this particular case."

(Emphasis added.) Later, in describing the facts relating to two counts, the prosecutor noted that the state had not charged defendant with prostitution, even though the facts constituted that crime:

"And then Count 25, now we’re at sodomy in the second degree, because he’s now turned 12. And so it’s the same conduct for Count 25. In defendant’s bedroom for Count 26. In defendant’s bedroom, that’s the oral sex both ways. And these, you know, are separate incidents, though, that occurred.

"And if you recall, the—[J] says that once [he] started to turn 12, there was a period of time where it kind of wanes a little bit, it’s not as prevalent, actually, we even take about a three-month break, it seems, right? And then it starts back up. Why? Because then [defendant] comes and he offers [J] $50 for [J] to put [his] mouth on [defendant’s] penis. Right?

"And I think he says that actually happened in his bedroom, okay, so that certainly could be [J] put his mouth on defendant’s penis for Count 25. And then if you recall, [defendant] comes to [J] a little bit later and offers him $200 for anal sex, and [J] says no. No, no way, no how, because of, you know, the second incident actually that happened at that time, you know, we haven’t seen that yet.

"And then [defendant] comes to [J] later and says, well, how about a hundred dollars to just let me put it between the cheeks of your buttocks and rub there? Yes, [J] took that. And then [J] remembers another time where [defendant] offered [J] $50 for [J] to put his mouth on [defendant’s] penis again. So, I mean, now he basically is, you know—we didn’t charge any misdemeanors, but he’s now also committing the crime of prostitution."

₄₈(Emphasis added.) Immediately after the prosecutor made that statement, the prosecutor began discussing Count 27. Defendant did not object to the prosecutor’s arguments, ask for a curative instruction, or move for a mistrial.

The jury found defendant guilty on all 30 counts. Defendant now appeals.

II. STANDARD OF REVIEW

Defendant requests that we review for plain error whether the prosecutor committed prosecutorial misconduct that deprived defendant of a fair trial when the prosecutor argued that (1) the state "could have" asked the grand jury to charge more counts, but did not, and (2) defendant "also commit[ted] the crime of prostitution." See ORAP 5.45(1) ("No matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court and is assigned as error in the opening brief in accordance with this rule, provided that the appellate court may, in its discretion, consider a plain error."). Defendant also requests that we review for plain error whether the trial court erred when it failed to sua sponte strike testimony by Miller that defendant argues constituted impermissible vouching.

[1–3] For an error to be plain, the error must (1) be one of law; (2) be obvious and not reasonably in dispute; and (3) appear on the face of the record. State v. Gornick, 340 Or. 160, 166, 130 P.3d 780 (2006) (citation omitted). A prosecutor’s improper comments constitute legal error "only if they are so prejudicial that they deprived defendant of a fair trial." State v. Chitwood, 370 Or. 305, 317, 518 P.3d 903 (2022). Even if the error is plain, we must exercise our discretion whether to consider the error, and such a decision "should be made with utmost caution." Ailes v. Portland Meadows, Inc., 312 Or. 376, 382, 823 P.2d 956 (1991).

III. DISCUSSION

A. Prosecutorial Misconduct in Closing Arguments

In defendant’s first two assignments of error, he argues that the state’s arguments relating to uncharged offenses constituted prosecutorial misconduct, and that the trial court plainly erred by failing to sua sponte order ₄₉a mistrial based on the comments. According to defendant, the prosecutor’s statements were improper and infringed on defendant’s right to have an impartial jury and a fair trial pursuant to Article I, section 11, of the Oregon Constitution, the Sixth Amendment to the United States Constitution, and the Due Process Clause of the Fourteenth Amendment.

Relying on case law from other jurisdictions, defendant argues that the trial court committed prejudicial error, because the prosecutor’s arguments implied that defendant received a "break" due to the state’s decision to ask the grand jury to charge only 32 counts. According to defendant, the prosecutor’s arguments invited the jury to believe that, because defendant could be guilty of uncharged crimes, it was more likely that he was guilty on the charged counts. Although Oregon appellate courts have not decided that such comments are an "obvious" error of law, defendant argues that, if the prosecutor’s...