489 P.3d 1046
Or. Ct. App.2021Background
- Defendant (Caleb Johnson) lived with his wife and her young daughter B; B disclosed to her mother on April 27, 2016 that she had put her mouth on "daddy's pee-pee."
- Defendant admitted to his wife and then to police (Detective Gandy) that he had sexually abused B on multiple occasions beginning in February 2016, including oral contact and causing B to touch his penis; two April incidents were central (allegedly on or about April 15 and April 27).
- An 18-count indictment charged multiple counts of first-degree sodomy and first-degree sexual abuse based largely on defendant’s confessions; the prosecution tied each count to acts in the confession.
- At trial the jury returned guilty verdicts on most counts, some of which were nonunanimous; defendant moved for judgment of acquittal arguing the confessions were not corroborated as required by ORS 136.425(2).
- The state conceded the confessions were uncorroborated as to Counts 1–11 (leading to acquittal/reversal as appropriate) but argued the child’s disclosure corroborated the April incidents (Counts 12–16, 18).
- The Court of Appeals: accepted the concession on Counts 1–11 (resulting in reversal of Counts 1–10), held the child’s disclosure sufficiently corroborated the April incidents (so MJOA was properly denied as to Counts 12–16 and 18), but reversed and remanded convictions on Counts 13, 16, and 17 because those verdicts were nonunanimous; otherwise affirmed and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant’s confessions were corroborated under ORS 136.425(2) for Counts 1–11 | State concedes no corroboration for Counts 1–11; those confessions insufficient | Confessions uncorroborated; MJOA required for Counts 1–11 | State’s concession accepted; convictions reversed for Counts 1–10 (Count 11 was acquittal at trial) |
| Whether the child’s disclosure corroborated confessions for April incidents (Counts 12–16, 18) | B’s statements ("put mouth on pee-pee," "mommy does it," "I finished it") corroborate multiple April acts alleged | B’s disclosure only corroborates a single oral act (Count 17), not multiple incidents | Court held B’s disclosure met the low corroboration threshold to support Counts 12,13,15,16 and corresponding sexual-abuse counts 14 and 18; MJOA properly denied as to those counts |
| Validity of jury instruction and verdict form allowing nonunanimous verdicts | State relied on Flores Ramos for harmlessness of instruction for unanimous convictions | Jury must be instructed unanimity required; nonunanimous instruction erroneous | Challenge to nonunanimous instruction/verdict form as to counts with unanimous verdicts foreclosed by State v. Flores Ramos; instruction issue not reversible for those counts |
| Receipt of nonunanimous verdicts on several counts | State concedes receipt of nonunanimous verdicts was error post-Ramos and those convictions must be reversed | Receiving nonunanimous verdicts violated defendant’s rights; convictions invalid | Court accepted concession: convictions based on nonunanimous verdicts (Counts 13, 16, 17 as remaining after corroboration rulings) reversed and remanded; other convictions affirmed or otherwise disposed |
Key Cases Cited
- Ramos v. Louisiana, 590 U.S. _ (U.S. Supreme Court holding nonunanimous jury verdicts for serious crimes violate the Sixth Amendment)
- State v. Flores Ramos, 367 Or 292 (Oregon Supreme Court: nonunanimous verdict instruction not structural error; harmless beyond a reasonable doubt for unanimous convictions)
- State v. Chatelain, 347 Or 278 (interpreting ORS 136.425 and corpus delicti/corroboration requirement for confessions)
- State v. Lerch, 296 Or 377 (corpus delicti rule requires independent evidence that tends to establish the crime occurred)
- State v. Moreno, 276 Or App 102 (corroboration threshold is low; only requires evidence that permits an inference tending to prove the offense)
- State v. Campbell, 299 Or 633 (child victim’s complaint can constitute sufficient corroboration of a confession)
- State v. Delp, 218 Or App 17 (defines corpus delicti for sodomy/sexual offenses)
- State v. Fry, 180 Or App 237 (child’s disclosure may be insufficient to corroborate multiple incidents if the statement indicates a single occurrence)