Defendant was convicted of 21 criminal counts arising, principally, from his sexual conduct with three minor males. On appeal, he raises several assignments of error challenging various of those convictions that arose from conduct involving the complainant, C. In particular — and dispositively here — defendant asserts that the trial court
Because we address only the asserted errors relating to preclusion of cross-examination, we recount the circumstances pertaining to that preclusion and, consistently with our standard of review, the totality of the evidence material to assessing potential prejudice from that preclusion. See State v. Eckert,
Beginning sometime in 2007 or 2008, defendant, who worked in a hair salon in Ontario, befriended C, who was then a 16-year-old sophomore in high school. Every few days, C would stop by the salon to see defendant and talk. Sometimes, defendant gave C free haircuts and, occasionally, he would take C to the shopping mall in Boise, where he would pay for C’s purchases. On other occasions, defendant also bought C food and alcohol and gave him marijuana.
The first predicate incident allegedly occurred in early 2009, when C was 17 years old.
The second charged incident allegedly occurred in May 2009 at defendant’s home. C testified that defendant had invited him and one of his friends to defendant’s house and had given them both alcohol and marijuana. Then, according to C, defendant had performed oral sex on him and inserted his penis into C’s anus. C testified that he thought to himself that he “just wanted it to get over with.” Afterward, C spent the night at defendant’s house.
In addition to C’s account of the two charged incidents, the state, by way of further direct examination of C during its case-in-chief, presented other testimony from C in which he described numerous other sexual contacts with defendant. For example, when asked on direct examination if there were times that defendant touched him “inappropriately” after giving C “drugs and alcohol,” C replied, “Yes” and explained that, after getting high and drinking, “[defendant] would give me and [my friend] [oral sex] and have us have sex with him and he would have sex with me.” C also testified that he and
Sometime shortly after the second alleged incident, C reported the abuse to his counselor at a substance abuse treatment facility.
At trial, defendant advanced a hybrid defense with two components: (1) C voluntarily participated in the charged sexual contact, negating forcible compulsion with respect to first-degree sodomy and first-degree sexual abuse, as well as lack of actual consent with respect to second- and third-degree sexual abuse; and (2) defendant believed that C was over the age of 18 and that mistaken belief was reasonable, negating inability to consent due to age with respect to second- and third-degree sexual abuse. In support of that defense, defendant offered, inter alia, his own testimony as to both actual consent and mistake of age. In addition, the defense also attempted, through cross-examination of C, to elicit an admission from C that he had voluntarily engaged in sexual conduct with defendant.
That putative cross-examination — which occurred in the context of a defense offer of proof — is the focus of our review. After C testified on direct examination, defense counsel then cross-examined him on the details of the charged incidents, and C adhered to his account that he had resisted those sexual contacts.
“[DEFENSE COUNSEL]: Okay. [C], I might as well ask you this out of the earshot of the jury, you did have voluntary sexual relations with [defendant], didn’t you?
“[PROSECUTOR]: Your Honor, I’m going to object to this. This is not a proper question for this witness to have to answer.
“THE COURT: His sexual orientation or whether he had voluntary sex — consent is not a defense here. He’s already described the incidents that I think the jury can make whatever inference they want about whether it was forcible or not. The alternative clothing he’s described does not paint him as gay by any means; it sounds Goth to me. * * * So I think you can get into all you want about him lying about his age to people, but as far as how he was dressed and what his — what his orientation is, that doesn’t have anything to do with anything.
“ [DEFENSE COUNSEL]: Well, but whether he voluntarily had sexual relations with [defendant] is admissible.
“THE COURT: How?
“[DEFENSE COUNSEL]: Because it — the sexual relationship with the accused, the voluntary sexual relationship with the accused is admissible.
“THE COURT: He can’t voluntarily engage in sex with him, he’s below the age of consent.
“[DEFENSE COUNSEL]: But he wasn’t the whole time.
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“THE COURT: He was the whole time.
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“ [DEFENSE COUNSEL]: And it goes to whether or not it was forceful or not.
“THE COURT: He’s described one incident and the others he’s not. I’m not going to allow that. You can ask all you want about him lying about his age but not get into any of this other [stuff]!’
(Emphases added.) Thus, the trial court not only ruled that defense counsel could not question C in the jury’s presence about the voluntariness of sexual contacts with defendant, but also preempted defense counsel from eliciting that putative testimony by way of an offer of proof.
At closing, defense counsel argued that C and defendant had a relationship, and that C had “lied about his age.”
On appeal, defendant argues that the trial court “erroneously excluded relevant evidence” when it prohibited him from asking C “about whether he had had consensual sex with defendant,” because “defendant’s guilt or innocence turned on whether [C] had consented to that contact.”
The state does not defend the trial court’s decision to preempt defendant’s offer of proof on that matter. Instead, the state contends that that error was harmless because, regardless of C’s putative answer, that response would have been inadmissible before the jury as a matter of law. Specifically, the state posits that, when defense counsel asked C whether he had “voluntary sexual relations with [defendant],” counsel was trying to elicit information about C’s “entire relationship” with defendant to support “an inference that because the victim had consented
As a threshold matter, we agree with defendant that the trial court erred in preempting the putative cross-examination. In the absence of exceptional circumstances, e.g., a claim of privilege, the mere fact that testimony elicited via an offer of proof may be inadmissible before the trier of fact is not a basis to preempt that putative testimony. To the contrary, offers of proof occur, quintessentially, in that posture. See, e.g., State v. Rodriguez,
The inquiry thus reduces to whether that error was harmless for either of the two alternative reasons the state posits — viz., that, because of the application of OEC 412 or OEC 403, C’s responses would not have been admissible before the jury or, even if admissible, there is little likelihood that even an affirmative response would have affected the verdict.
Our consideration of those contentions proceeds from the premise that (as the state urges) the trial court understood — and reasonably could have understood— defense counsel’s question to C to relate solely to sexual contacts with defendant other than the two charged incidents. Although counsel’s question to C was phrased generally, and perhaps even ambiguously, in the totality of defense counsel’s cross-examination of C before the jury, as well as the balance of the offer of proof, that question pertained to defendant and C’s “relationship.” Given C’s testimony on direct examination with respect to the charged incidents and his statement on cross-examination before the jury that he had “yelled at” defendant to “stop” during the first charged incident, further inquiry as to whether those charged contacts were voluntary would almost certainly have been unavailing and gratuitous. Conversely, obtaining an admission from C that he had, in fact, sometimes actually engaged in “voluntary sexual relations with [defendant]” — a matter not explored by defense counsel on cross-examination before the jury — might, in combination with C’s admission that he had interacted with defendant dozens of times after the first incident, call into question C’s adamant account that he had not consented to the charged conduct. Thus, the referent for our analysis that follows is a putative response to whether C had voluntarily engaged in other, uncharged, sexual contacts with defendant.
As noted, the state first contends that any such response would, ultimately, have been inadmissible under OEC 412. That rule reads, in pertinent part, as follows:
“(2) Notwithstanding any other provision of law, in a prosecution for a crime or an attempt to commit a crime listed in subsection (1) of this section or in a proceeding conducted under ORS 163.760 to 163.777, evidence of an alleged victim’s past sexual behavior other than reputation or opinion evidence is also not admissible,unless the evidence other than reputation or opinion evidence:
“(a) Is admitted in accordance with subsection (4) of this section; and
“(b) Is evidence that:
“(A) Relates to the motive or bias of the alleged victim;
“(B) Is necessary to rebut or explain scientific or medical evidence offered by the state; or
“(C) Is otherwise constitutionally required to be admitted.
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“(4) (a) If the person accused of a crime or an attempt to commit a crime listed in subsection (1) of this section, or the respondent in a proceeding conducted under ORS 163.760 to 163.777, intends to offer evidence under subsection (2) or (3) of this section, the accused or the respondent shall make a written motion to offer the evidence not later than 15 days before the date on which the trial in which the evidence is to be offered is scheduled to begin, except that the court may allow the motion to be made at a later date, including during trial, if the court determines either that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence or that the issue to which the evidence relates has newly arisen in the case. Any motion made under this paragraph shall be served on all other parties and, in a criminal proceeding, on the alleged victim through the office of the prosecutor.”
The state emphasizes that defendant did not comply with the notice provisions of subsection (4)(a) and further contends that, in all events, the putative testimony would not have satisfied the requisites of subsection (2).
The state’s invocation of OEC 412 in this posture is, respectfully, ironic: It was the state itself that, on direct examination of C, first elicited extensive testimony describing his other, uncharged sexual contacts with defendant. Accordingly — and unsurprisingly — the state, in objecting to defense counsel’s question during the offer of proof, never referred to OEC 412. Regardless of whether OEC 412 might otherwise have precluded the defense from inquiring, in the first instance, about such contacts — a matter that we need not, and do not, reach and resolve
The state’s alternative appellate reliance on OEC 403 is similarly unavailing.
Finally, the state posits that, even assuming the admissibility of C’s putative response and even assuming that that response would have been affirmative — that is, that C would have agreed that he had voluntarily engaged in other, uncharged sexual contacts with defendant— preclusion of that response was harmless, given the totality of the evidence. The state emphasizes C’s testimony on direct examination and cross-examination before the jury regarding the uncharged sexual contacts as well as other interactions with defendant, noting that “[t]he victim said nothing about defendant making statements to him during those [uncharged] incidents to compel his cooperation.” The state also points to defense counsel’s statement in closing argument that “[t]hose are things that people do when they’re in a voluntary sexual relationship, which is really what this appears to be.”
We cannot agree with the state that exclusion of an affirmative response by C would have been harmless. To be sure, C testified at some length regarding his interactions with defendant, including uncharged sexual contacts. Nevertheless, C never testified that any of those sexual contacts was, in fact, voluntary — that is, that he consented in fact to such conduct. Nor, contrary to the state’s suggestion, do the circumstances of the uncharged contacts establish, albeit by necessary implication, that C did, in fact, voluntarily engage in one or more of those contacts. Thus, the testimony that defense counsel sought to elicit was not merely cumulative or duplicative of other evidence. See, e.g., State v. Davis,
Finally, such an answer would have gone “directly to the heart of defendant’s factual theory of the case.” Davis,
Of course, we do not know, and cannot know, what C’s response would have been. But that is through no fault of defendant’s. In this circumstance, a remand for a new trial is required on the challenged counts. See Allen v. Palmateer,
Convictions on Counts 1, 2, 3, 4, and 6 reversed and remanded; remanded for resentencing; otherwise affirmed.
Notes
Given our analysis and disposition, we need not reach and resolve defendant’s supplemental assignment of error that the trial court committed “plain error” when it failed to instruct the jury that, to convict defendant of first-degree sodomy or first-degree sexual abuse, the state was required to prove that defendant not only subjected C to forcible compulsion, but did so knowingly. See State v. Nelson,
Further, the parties concur that the trial court’s entry of an amended judgment after the filing of appellant’s opening brief has rendered the remaining assignment of error moot.
As we explain below, C’s age was material to the theory of defense at trial— and, in turn, to defense counsel’s putative, preempted cross-examination.
At some point after making that report, C obtained a weapon and stole a car with the intention of shooting defendant; the police apprehended him en route.
ORS 163.405(1)(a) provides:
“A person who engages in deviate sexual intercourse with another person or causes another to engage in deviate sexual intercourse commits the crime of sodomy in the first degree if:
“(a) The victim is subjected to forcible compulsion by the actor [.]”
ORS 163.427(1)(a)(B) provides:
“A person commits the crime of sexual abuse in the first degree when that person:
“(a) Subjects another person to sexual contact and:
"* * * * *
“(B) The victim is subjected to forcible compulsion by the actorj.]”
ORS 163.425(1)(a) provides, in part:
“A person commits the crime of sexual abuse in the second degree when:
“(a) The person subjects another person to *** deviate sexual intercourse *** and the victim does not consent thereto[.]”
ORS 163.415(1)(a) provides:
“A person commits the crime of sexual abuse in the third degree if:
“(a) The person subjects another person to sexual contact and:
“(A) The victim does not consent to the sexual contact; or
“(B) The victim is incapable of consent by reason of being under 18 years ofageU”
For example, on cross-examination, C reiterated that he had “yelled at” defendant to “stop” during the first incident. However, during other testimony on cross-examination, C acknowledged that, even after the first incident, he frequently went to defendant’s home, that he was not afraid of defendant, and that he would spend the night in defendant’s bed.
The court instructed the jury on the affirmative defense of reasonable mistake as to age.
Taken literally, defendant’s characterization is overbroad. As noted above, see
We note that preemption of an offer of proof in the context of criminal defense counsel’s cross-examination of the complaining witness is especially problematic. Cf. Chambers v. Mississippi,
Given the procedural posture of this case, in which the state raised no OEC 412 based objection, we imply no view as to the proper application of OEC 412 to circumstances hearing on a complainant’s purported consent when a defendant raises a mistake of age defense. Cf. State v. Morgan,
OEC 403 provides:
“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence.”
Instead, from the colloquy quoted above, it appears that the trial court proceeded from the premise that, given C’s age at the time of the charged conduct, C’s putative response, regardless of the answer, was categorically irrelevant. Given the nature of the charges and the theory of the defense, see