STATE OF OREGON, Petitioner on Review, υ. DENNIS JAMES DAVIDSON, Respondent on Review. STATE OF OREGON, Respondent on Review, υ. DENNIS JAMES DAVIDSON, Petitioner on Review.
S063387 (Control), S063480
Supreme Court of Oregon
September 22, 2016
380 P3d 963 | 360 Or 370
BREWER, J.
CC 11C43121; CA A150292
Argued and submitted May 9; decision of Court of Appeals affirmed; judgment of circuit court affirmed in part and reversed in part, and case remanded to circuit court for resentencing September 22, 2016
Rolf C. Moan, Assistant Attorney General, Salem, argued the cause and filed the brief for petitioner on review/ respondent on review State
Ernest G. Lannet, Chief Defender, Salem, argued the cause and filed the brief for respondent on review/petitioner on review Dennis James Davidson.
Jordan R. Silk, Portland, filed the brief on behalf of amici curiae Oregon Justice Center. With him on the brief was Alexander A. Wheatley.
BREWER, J.
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is affirmed in part and reversed in part, and the case is remanded to the circuit court for resentencing.
BREWER, J.
Defendant was convicted of two counts of public indecency under
This case presents some of the same issues that we recently addressed in State v. Althouse, 359 Or 668, 375 P3d 475 (2016). Althouse, in fact, forecloses the state‘s reviewability argument, and we therefore reject that argument without further discussion. See id. at 678 (holding that
I. FACTS AND PROCEDURAL HISTORY
A. Current Convictions
Because the jury found defendant guilty of the current charges, we view the evidence presented at trial in the light most favorable to the state. State v. Agee, 358 Or 325, 327, 364 P3d 971 (2015). A group of women and children were having lunch in a park in Salem when defendant walked by and waved at them. After the older children left the group to play on a nearby play structure, a man came by and told the group that defendant was behind a nearby tree. One of the women, Davis, looked over her shoulder and could see defendant peeking out at her from behind the tree.
When Davis stood up and turned, she was able to see that defendant was exposing his genitals and masturbating. Davis called 9-1-1 and gathered her group together to return to their car. As they left, defendant approached and told Davis several times that he was leaving; he then left through the south end of the park. Responding officers searched the area to the south of the park and found defendant standing at a fence bordering the park, looking into the park. As the officers approached defendant, they could see that he had his pants open and was masturbating. Defendant was then arrested and subsequently charged with and convicted by a jury of two counts of public indecency, one count for the incident near Davis‘s group and the other count for the incident at the border of the park shortly before he was apprehended.
B. Prior Public Indecency Convictions
Defendant‘s prior convictions for public indecency were relevant to his sentencing on his current convictions, because the prior convictions elevated those offenses from misdemeanors to felony public indecency. See
In 2006, defendant was convicted of the crime of misdemeanor public indecency and placed on probation. That offense occurred when defendant was observed by a neighbor while defendant was standing on the porch of a house and masturbating. When defendant saw the neighbor, he called out to her, “you want some of this?” as he continued to masturbate. The neighbor called the police. Nobody was home at the house when the incident occurred, but, when questioned by the police, defendant claimed to have been visiting “Amy” at the house and suggested that he had some sort of intimate relationship with “Amy.” Defendant even described some items inside the house. The police later contacted the homeowner, who was not named “Amy,” and she denied knowing defendant. The police also discovered that defendant‘s grandmother lived near the house where the offense occurred, that defendant had stayed with his grandmother at some point in time, and that his grandmother had entered his bedroom and discovered him masturbating while looking out the window toward the house where the offense later occurred. Finally, the police located a letter in defendant‘s backpack written by defendant to another person, stating that he had a crush on her and had watched her mow her lawn. The woman who owned the house where the offense occurred acknowledged that she regularly mowed the lawn around her house. The woman subsequently obtained a stalking protective order against defendant.
Defendant was convicted of misdemeanor public indecency arising out of the incident on the porch, and he was sentenced to probation for that offense. Several months later, while defendant was on probation for that offense, a number of school staff members reported that they had observed defendant expose his genitals while masturbating near an elementary school playground. One of those staff members indicated that, when defendant saw her looking at him through a window, he turned to face her as if he wanted her to observe him. Three children also saw defendant near the school, although the record did not indicate whether they saw him expose his genitals. Defendant was convicted of public indecency for that conduct, and, because he had a prior misdemeanor public indecency conviction, his conviction for the school incident was elevated to a felony under
Shortly after defendant was released from prison on his sentence for the school incident, defendant again was arrested for and convicted of felony public indecency. In that incident, a group of women (who had a child with them) were near their car in a store parking lot when they observed defendant looking at them while he exposed his genitals and masturbated. When the police arrived, an officer also observed defendant masturbating in the parking lot. After defendant was apprehended, he told the police that he had been masturbating inside a nearby pornography shop and that he had masturbated in front of the women after he left the store because he thought that it would make the women “hot” and that he would be able to get a “date.”
C. Other Prior Convictions and Misconduct
In evaluating disproportionality challenges to criminal sentences, it is appropriate for a court to consider any prior conviction, as well as misconduct that did not result in convictions. Althouse, 359 Or at 679; State v. Rodriguez/Buck, 347 Or 46, 78, 217 P3d 659 (2009). In the present case, the presentence investigation report indicated that defendant first came into contact with police at age 10, when he was accused of shoplifting a toy.5 He was first referred to the juvenile court at age 14 based on a fighting incident at his junior high school;
Most of defendant‘s convictions for offenses other than public indecency resulted in probationary sentences. The record shows that defendant consistently performed poorly on probation and post-prison supervision, regularly committing new offenses while under supervision, as well as failing to appear at various hearings concerning probation violations. While incarcerated, defendant received sanctions for misconduct (generally for disobedience) on numerous occasions. Defendant has been diagnosed with various substance dependence disorders, as well as with a cognitive disorder due to a traumatic brain injury that occurred when he was a teenager.
D. Sentencing
At defendant‘s sentencing, the state argued that a sentence of life imprisonment without the possibility of parole was appropriate, noting in particular that defendant‘s first two public indecency offenses were committed in a brief time interval, that the third offense occurred within days after he was released from prison on the prior offenses, and that the current crimes also occurred within days of his release from prison for the third offense. For the most part, the state‘s focus at sentencing was not on the specifics of any of the public indecency offenses themselves (other than noting that they caused harm to the victims), but rather on defendant‘s recidivism.
In response, defense counsel emphasized the fact that none of defendant‘s offenses involved violence or physical contact with anyone; he argued that a life sentence without the possibility of parole is simply too harsh a punishment for masturbating in public, even for a repeat offender. In his own statement at sentencing, defendant showed little or no understanding that society views his public sexual behavior as unacceptable.6
The circuit court noted that, under
E. Appeal
Defendant appealed, arguing that (1) his convictions should be reversed because the trial court had erred in failing to give a requested jury instruction on attempted public indecency; and (2) his sentences should be reversed because the life sentences without the possibility of parole that the court imposed were unconstitutionally disproportionate under Article I, section 16. Defendant did not argue that
The Court of Appeals rejected defendant‘s jury instruction argument without discussion, but it agreed with defendant that, as applied to his circumstances, the life sentences imposed on the two convictions for public indecency were unconstitutionally disproportionate and, therefore, reversed those sentences and remanded to the circuit court for resentencing. Davidson, 271 Or App at 721 n 4, 745.
The state sought review of the Court of Appeals’ decision with respect to defendant‘s sentences, and defendant sought review of the Court of Appeals’ disposition of his assignment of error relating to the jury instruction. We granted both petitions for review, and, for the reasons explained below, we affirm the decision of the Court of Appeals with respect to both issues.
II. CHALLENGE TO DEFENDANT‘S CONVICTIONS
We first consider defendant‘s challenge to his convictions.
“A person commits the crime of public indecency if while in, or in view of, a public place the person performs:
“(a) An act of sexual intercourse;
“(b) An act of deviate sexual intercourse; or
“(c) An act of exposing the genitals of the person with the intent of arousing the sexual desire of the person or another person.”
Defendant was charged under paragraph (c) of that statute.
At trial, defendant moved for a judgment of acquittal, arguing that the state was required to prove that, when he exposed himself, he intended other people to see what he was doing, and asserting that a person who surreptitiously masturbates in a public place but does not intend to be viewed by others does not violate that statute. That is, defendant argued, the state was required to prove that defendant exposed his genitals with the intent to arouse sexual desire by being seen exposing himself in public, not simply that he exposed his genitals intending to arouse sexual desire and that that act occurred in, or view of, a public place. The trial court denied defendant‘s motion for judgment of acquittal.
Subsequently, in a colloquy regarding jury instructions, defense counsel requested an instruction on attempted public indecency, arguing: “[I]n this case, because especially in count two, or the second time [defendant] encountered someone else, no one else was around to see him and when he was seen, he fled. It could be seen as an attempt[.]” When the trial court asked for further clarification about how the evidence could support an attempt conviction, counsel indicated that the instruction could potentially apply to both counts, adding: “Well, because ‘exposed,’ your Honor, can be a couple of things. The fact that [Davis] had to get up and adjust her viewpoint to see what was going on, [defendant] was not putting himself on display.” Defense counsel did not specify precisely how he wanted the jury to be instructed on attempted public indecency, but it is apparent from the quoted colloquy that he sought the “attempt” instruction as a basis for arguing to the jury that the state‘s evidence was insufficient to prove that defendant was trying to be observed when he committed the “act of exposing the genitals” described in
“A party is generally entitled to a jury instruction based on its theory of the case if the instruction is warranted by the particular facts and correctly states the law.” State v. Washington, 355 Or 612, 653, 330 P3d 596 (2014). We presume that defendant wanted a standard instruction on “attempt” that followed the text of the attempt statute and thus would have been a correct statement of the law. Under
Defendant‘s argument in this case, by contrast, was not that the evidence permitted an inference that he intended to carry out the charged offenses of public indecency but did not complete them. Rather, his argument was that the state was required to prove that he intended to arouse himself by being observed exposing himself in public, and the state failed to prove that he had the requisite intent to commit the crimes at all. Stated differently, defendant‘s theory was that no public indecency crime was committed because he lacked the requisite intent to commit that offense.
So understood, an attempt instruction based on
III. AS-APPLIED CHALLENGE TO DEFENDANT‘S SENTENCES
We now turn to the state‘s argument that the Court of Appeals erred in concluding that defendant‘s sentences were unconstitutionally disproportionate under Article I, section 16. As discussed, defendant had been convicted of felony sex crimes as defined in
“(1) The presumptive sentence for a sex crime that is a felony is life imprisonment without the possibility of release or parole if the defendant has been sentenced for sex crimes that are felonies at least two times prior to the current sentence.
“(2) The court may impose a sentence other than the presumptive sentence provided by subsection (1) of this section if the court imposes a departure sentence authorized by the rules of the Oregon Criminal Justice Commission based upon findings of substantial and compelling reasons.
“(3) For purposes of this section:
“(a) Sentences for two or more convictions that are imposed in the same sentencing proceeding are considered to be one sentence; and
“(b) A prior sentence includes:
“(A) Sentences imposed before, on or after July 31, 2001; and
“(B) Sentences imposed by any other state or federal court for comparable offenses.
“(4) As used in this section, ‘sex crime’ has the meaning given that term in
ORS 163A.005 .”
After the Court of Appeals issued its decision in this case, we decided Althouse, 359 Or 668. In that case, we considered a challenge to the application of
““(1) a comparison of the severity of the penalty and the gravity of the crime; (2) a comparison of the penalties imposed for other, related crimes; and (3) the criminal history of the defendant.“”
Althouse, 359 Or at 684 (quoting Rodriguez/Buck, 347 Or at 58). We further held in Althouse that, when a sentence is enhanced based on the defendant‘s repeat-offender status, additional considerations come into play. For example, if the defendant ““is a menace to the community, his sentence should be aimed at offering the most protection to the community, regardless of the relative innocuousness of the particular crime for which he is now convicted.“” Althouse, 359 Or at 684 (quoting Tuel v. Gladden, 234 Or 1, 6, 379 P2d 553 (1963)). We stated that the constitutionality of an enhanced sentence for repeated sexual offenses would ““depend on the seriousness of repetitive sexual conduct of th[e] kind [punished by the statute] and the danger that it forecasts for others unless the defendant is segregated from society.“” Althouse, 359 Or at 685 (quoting Jensen v. Gladden, 231 Or 141, 144-45, 372 P2d 183 (1962) (brackets in Althouse)). We concluded that, in the context of enhanced sentences for repeat offenders, “the first and third of [the factors identified in Rodriguez/Buck] overlap in comparing the severity of the penalty and the gravity of the crimes that gave rise to the repeat offender sentence.” Althouse, 359 Or at 685.
In considering the first and third Rodriguez/Buck factors in Althouse, we stated:
“We may agree with defendant that public indecency, considered in isolation, is not as serious as some other sex crimes. That much follows from the legislature‘s classification of that offense. The legislature has classified public indecency as a misdemeanor unless the defendant previously has been convicted of public indecency or another specified sex crime, in which case the offense is classified as a Class C felony.
ORS 163.465(2) . This is not a case, however, in which defendant‘s criminal history consists of a single conviction for public indecency, nor is it a case in which the three convictions that resulted in a presumptive life sentence underORS 137.719(1) are three felony public indecency convictions. Rather, this is a case in which defendant, over a 30-year period, has been convicted of sexual abuse and sodomy of his own and other people‘s children, as well as public indecency. And many of the charged and uncharged instances in which defendant has engaged in public indecency during that 30-year period have been directed at or related to children.”
359 Or at 687. We noted in Althouse that the defendant‘s criminal history “reflect[ed] a deeply ingrained pattern of predatory behavior” and concluded that, “[g]iven the seriousness of [the] defendant‘s repeated sexual misconduct and the danger that it forecasts for others, we cannot say that imposing a presumptive life sentence in response to [the] defendant‘s pattern of criminal behavior violated Article I, section 16.” Id. We further concluded that “an inability to reform one‘s conduct despite repeated opportunities to do so *** can justify the legislature‘s decision to impose a life sentence without the possibility of parole.” Id. (citing Tuel, 234 Or at 7).
We then examined the second Rodriguez/Buck factor. With respect to that factor, the defendant in Althouse had argued that
We now turn to the application of the factors identified in Rodriguez/Buck, as expanded on in Althouse, to the present case. Under the first and third factors set out in Rodriguez/Buck, we examine the gravity of the current offenses and the severity of the penalty imposed for it, in light of defendant‘s criminal history. As noted, defendant first was convicted of misdemeanor public indecency in 2006, based on an incident in which he masturbated on the porch of a woman in whom he had taken a sexual interest but did not know. A neighbor observed his conduct, and the woman on whose porch he committed the offense ultimately obtained a stalking protective order against him. Because defendant did not have prior convictions for sexual offenses, that public indecency crime was a Class A misdemeanor under
Defendant‘s other two public indecency convictions—the ones that subjected him to enhanced sentences under
The two current public indecency convictions obviously are of greater concern in light of defendant‘s significant history of committing similar offenses. The first of the two current offenses involved conduct in a public park where—despite defendant‘s intimations to the contrary—numerous people had the ability to see what he was doing. The second incident involved masturbation near the same public park, shortly after defendant had fled and presumably was aware that he was being pursued. That he resumed his masturbation activities under those circumstances is consistent with what his criminal history implies—that he has little control over his behavior or understanding of the socially unacceptable nature of his conduct. In addition, defendant‘s lengthy history of committing other minor crimes, his lack of success while under supervision, and his other nonsexual misconduct all indicate that he is highly resistive to reform.
That said, the issue before us is the proportionality of a life sentence without the possibility of parole for a series of offenses that, if viewed in isolation and without consideration of criminal history, would be misdemeanors that each would merit, at most, incarceration for a period not to exceed one year. As we stated in Althouse, the constitutionality of the sentence will ““depend on the seriousness of the repetitive sexual conduct“” as well as the ““danger that it forecasts for others[.]“” 359 Or at 685 (quoting Jensen, 231 Or at 144-45). The primary danger identified here is that defendant‘s repeated behavior will continue to cause upset and possible harm to people who observe him exposing himself and masturbating.
Although we do not take such harm lightly, that type of harm stands in contrast to the harms at issue in Althouse. In that case, the defendant, who had a significant history of exposing himself in public, also had a lengthy history of sexually abusing children, including attempting to establish contact with children at or near the time he was exposing himself. 359 Or at 679-81. Unlike the defendant in Althouse, nothing in defendant‘s criminal history or history of other misconduct indicates that he specifically preys on children or that he has sexually abused a child. Cf. Jensen, 231 Or at 144-45 (upholding life-with-possibility-of-parole sentence for public indecency, where defendant previously had committed felony sex offense against a child). Although the state is correct that defendant apparently has no inhibitions about committing the crime of public indecency in the presence of children, and such behavior clearly puts children at risk of harm if they observe it, the record does not suggest that he has specifically targeted children to observe his acts, or that he has committed such acts in the course of or in furtherance of other crimes that target children, as was the circumstance in Althouse.
More generally, unwillingly observing sexual behavior by another person is not a harm of the same magnitude as being specifically and personally subjected to unwanted physical sexual contact or sexual violence. Defendant‘s behavior, while not passive and certainly reprehensible to those witnessing it, was not aggressive in the sense that he actively pursued victims or attempted to have physical contact with them; instead, he generally showed sexual interest in whomever happened to observe him.9
To recapitulate with respect to the first and third Rodriguez/Buck factors (gravity of the offense compared to the severity of the penalty, and defendant‘s criminal history), public indecency generally can be considered either a high-level misdemeanor or a low-level felony, depending on the perpetrator‘s criminal history.
On the other side of the scale, the state accurately observes that defendant‘s criminal history demonstrates that lesser criminal sanctions have not deterred him from re-offending. As this court stated in Tuel, one of the purposes of statutes that provide enhanced penalties for repeat offenders is to recognize that some offenders simply are not deterred by criminal sanctions and such people likely will continue to re-offend if released from confinement. 234 Or at 6-7; see also Althouse, 359 Or at 685 (same). Nonetheless, that consideration is only one among others, and, as indicated above, the other considerations under the first and third Rodriguez/Buck factors that are at issue here suggest that imposing a sentence of life imprisonment without the possibility of parole on a defendant who commits crimes such as these, and whose criminal history does not reflect that he poses a significant physical danger to the public, does not comport with Article I, section 16.
Our consideration of the second Rodriguez/Buck factor reinforces that assessment. In applying that factor, we consider the penalties imposed for other crimes that have similar characteristics to the crime at issue in this case. 347 Or at 65. It is useful to compare the seriousness of similar crimes that may result in the same penalty as defendant‘s sentence, as well as to examine similar yet more serious crimes that may result in a lesser sentence than the one imposed on defendant. Id. at 74-76. Looking at the seriousness of similar crimes that may result in the same penalty as defendant‘s sentence, we note that, unlike felony public indecency, most of the other felony sex crimes that may result in the imposition of a true-life sentence under
Most of the sexual offenses described in
We have no difficulty in concluding that most of, if not all, the sexual offenses described above that are not within the purview of
We do not mean to suggest that the inclusion of public indecency in
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is affirmed in part and reversed in part, and the case is remanded to the circuit court for resentencing.