State v. GarrettState v. Garrett
Defendant appeals a judgment of conviction for one count of first-degree sodomy, one count of first-degree sexual abuse, one count of first-degree encouraging child sexual abuse (ECSA), and 10 counts of second-degree ECSA. Defendant argues that the trial court erred when it disallowed his demurrer, because the charges were improperly joined in the indictment. Held: The Court of Appeals looked to federal law for guidance in the court‘s interpretation of the “same or similar character” language in the joinder statute,
Reversed and remanded for entry of judgment allowing defendant‘s demurrer.
R. Curtis Conover, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kristin A. Carveth, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.
TOOKEY, J.
Reversed and remanded for entry of judgment allowing defendant‘s demurrer.
Defendant appeals a judgment of conviction for one count of first-degree sodomy against a victim under 12 years of age,
I. BACKGROUND
The relevant facts are undisputed. J is defendant‘s cousin. Defendant was watching J‘s son and stepdaughter, K, while J went on a camping trip with his wife. Shortly after leaving to go on their camping trip, J realized that he had forgotten the can opener and decided to return home to piсk it up. J ran into the house while his wife waited in the car. When J got inside, he saw that his son was watching television by himself in the
Officer Molaski arrived shortly thereafter and interviewed defendant about J‘s report of sexual abuse. Defendant admitted that he “was caught in a compromising position” when “[h]e and his 9-year-old cousin were in the bedroom naked together,” and told Molaski, “I know what I did was wrong. I‘m the adult.” Defendant was read his Miranda rights and agreed to go down to the police station to disсuss what had happened.
Detective Grice arrived at J‘s home and interviewed K. K told Grice that defendant had put a video on the computer in the bedroom that showed adults in different sexual “positions,” which K described as “inappropriate behavior.” When Grice asked K how she ended up in the bedroom, K said that “defendant had told her he wanted to show her a movie about positions, and that he pulled her pants and panties off after leading her into the bedroom and *** lock[ing] the door behind her.” K also told Grice that defendant had pulled his own pants down. When Grice asked K whether defendant had touched her at all, K quickly said, “No,” but Grice observed K‘s body language change, so Grice stopped the interview and spoke with K‘s parents about taking K to the hospital for an examination. Grice left to set up a sexual assault examination at the hospital, and then he went to the police station to interview defendant.
When Grice arrived at the police station, Grice obtained DNA samples from defendant and interviewed defendant about what had happened earlier that day. According to defеndant, that morning, K had gone into her parent‘s bedroom for about five minutes and then K came back out and told defendant that she wanted to show him something in the bedroom. When defendant entered the room, he said that K had turned on a “sex position” video on YouTube. Defendant stated that K then took off her own clothes, got into a sexual position, and told defendant that “she wanted to see what [his] thing looked like when it was close to that area.” Defendant unzipped his pants and exposed his penis. After initially denying that he had any sexual contact with K because J came back home, defendant eventually admitted to Grice that his penis might have touched K while he was moving her into a position, that his penis might have “brushed against” her vagina or anus, and
that he might have pressed his penis up against her rectum for “a little less than half a second.” Additionally, after Grice lied to defendant about K stating that she had felt defendant‘s penis push against her anus, defendant admitted that he had, in fact, pressed his penis against K‘s anus.
Defendant also admitted to Grice that he had had other interactions with K that were potentially sexual in nature. Defеndant told Grice that K came into the bathroom while he was urinating and asked defendant questions about his penis. Defendant stated that, on another occasion, he had masturbated in front of K because she was curious about the size of his penis. Defendant also stated that he had accidentally touched K‘s genital area while they were playing and, when he apologized, K told defendant to “keep doing that.” Ultimately, defendant admitted that he was sexually attracted to K, and that he was “expecting to do a couple months in jail, bare minimum, if not longer,” because of “this whole situation.”
Grice also asked defendant about the contents of defendant‘s computer. Defendant stated that he had never intentionally looked for child pornography on his computer, but that “a couple of child things do sneak in” when he “look[s] up things related to incest.”
Based on the information that Grice had gathered during his investigation, Grice obtained,
Meanwhile, K was taken to the hospital and was examined by Partridge, a nurse trained to perform examinations in child sexual abuse cases. When Partridge asked K why she had come to the hospital, K told Partridge that it was because of “the bad thing that happened *** in mom‘s room” with defendant. K told Partridge that defendant had
taken off her clothes and his clothes and played a “weird” video, and that defendant had “tried to touch her butt with his hands and didn‘t get to because Daddy came to the door.” Partridge took swabs of K‘s mouth, hands, genital area, and perianal area. K‘s physical exam revealed that all of “the tissue was normal” and that “there was no trauma.”
K was also interviewed at the Kids First Center about a week later by a child forensic interviewer, Satterwhite. K told Satterwhite that defendant had put on the video about “inappropriate positions” in her parents’ bedroom and that, when K went to see what the noise was, defendant pulled K into the bedroom and put K on the bed. After defendant put K on the bed, defendant took his pants and underwear off and took K‘s pants and underwear off. K said that defendant held her down and tried to touch her “bottom” with his hand but, “before he could, my dad got in, and I was so happy to see him.” K stated that she never felt defendant touch her bottom and was “99 percent sure he didn‘t touch [her].”
Defendant was charged in a 17-count indictment with one count each of first-degree sodomy and first-degree sexual abuse against K, and 15 counts of first-degree ECSA.
Defendant filed a demurrer to the indictment. Defendant argued that the trial court should allow his demurrer because the state had failed to allege a basis for joining the sodomy and sexual abuse charges with the ECSA charges. Defendant contended that he would be prejudiced by the disallowance of the demurrer “because the jury *** will be hearing evidence regarding one set of crimes and a separate set of crimes, and *** they will not be able to consider the facts regarding one set when they‘re [considering] the other set.” In other words, defendant contended that the joinder of the sodomy and sexual abuse charges with the ECSA charges would lead to the “improper presentation to the jury of acts which, if they were tried separately, would not be admissible in separate trials.” Furthermore, defendant asserted that the joinder of the sodomy and sexual abuse charges with the ECSA charges would further prejudice his defense because “defendant would testify regarding Counts 1 and 2, [the sodomy and sexual abuse charges,] but would not testify on Counts 3 through 17,” the ECSA charges,
and the jury will “wonder *** is he just admitting guilt 3 through 17 if he doesn‘t testify after he testifies to 1 and 2.”
In response, the state argued that the crimes were properly joined as crimes that are the same or similar in character, because “all the charges in the indictment relate to child abuse, specifically the sexual abuse of a child.” The state contended that the evidence from the ECSA charges would also be admissible as other acts evidence under
After taking the matter under advisement, the trial court issued a written order disallowing defendant‘s demurrer. Accordingly, the trial court empaneled the jury, and the case proceeded to trial.
At trial, defendant did not deny that he was naked in the bedroom with K, that he had a sexual interest in K, and that he touched K with a sexual purpose. Defendant‘s theory of defense was that the state could not prove the sodomy charge because it
the jury should convict him of attempted sodomy and first-degree sexual abuse.
With regard to the ECSA charges, defendant did not dispute the existence of the images on his thumb drive. Defendant contended that the state could not prove that defendant had knowingly “duplicated” the images, and, thus, the jury should return guilty verdicts for the lesser included offense of second-degree ECSA based on his “possession” of the images.
J, Molaski, Grice, Partridge, and Satterwhite testified about the historical facts outlined above, including what they had observed on the day in question, and what was discovered during the subsequent investigation. In addition, K testified that, after defendant had pulled her into the bedroom, defendant took off his own clothes and K‘s pants, but not her underwear, and then J walked in.
There was conflicting testimony about the results of the DNA tests on the swabs taken from K‘s perianal area and the conclusions to be drawn from the test results. According to the state‘s expert, the swabs contained a small number of spermatozoa cells that revealed a partial DNA profile thаt was consistent with defendant‘s DNA profile, but the frequency of that DNA profile in “the Caucasian population” was “1 out of 340.” Additionally, the state‘s expert found “non-sperm” DNA and concluded that that DNA came from defendant or someone in the paternal male line of defendant‘s family. Defendant‘s expert was unable to locate any DNA from spermatozoa, but stated that, in any event, “it‘s only as discriminating as 1 in 340, not anything like 1 in 340 trillion *** [s]o *** there isn‘t enough information here *** to identify any one particular person.” Defendant‘s expert also concluded that the nonsperm DNA could not have belonged to defendant or anyone else in the paternal male line of defendant‘s family.
Defendant did not testify, but he presented expert testimony about confessions and circumstances that can affect a person‘s memory to explain his admission to Grice about sodomizing K. The jury found defendant guilty of one count of first-degree sodomy, one count of first-degree sexual
abuse, two counts of first-degree ECSA, and 13 counts of second-degree ECSA.3 Defendant appeals from the judgment of conviction and assigns error to the trial court‘s disаllowance of his demurrer.
On appeal, defendant contends that the offenses, which are merely described in the indictment using the words of the relevant statutes, are not, on their face, similar in character, because sodomizing and sexually abusing a named victim is different in character from duplicating images of sexually
II. ANALYSIS
We review the disallowance of a demurrer for legal error. See State v. Taylor, 364 Or 364, 375, 434 P3d 331 (2019) (whether the allegations in an indictment are sufficient to satisfy the statutory test for joinder is a question of law).
thereof “that it does not substantially conform to the requirements of
“(1) A charging instrument must charge but one offense, and in one form only, except that:
“*****
“(b) Two or more offenses may be charged in the same charging instrument in a separate count for each offense if the offenses charged are alleged to have been committed by the same person or persons and are:
“(A) Of the same or similar character[.]”
Under
A. Assessing the Propriety of Joinder of Offenses on the Basis of the Same or Similar Character
As we observed in Poston, the “legislature amended
approved the amendment intended the Oregon statute to be construed consistently with the federal rule.” Id. at 144; see also Warren, 364 Or at 125-26 (observing that the 1989 amendment to
The federal courts of appeal have diverged somewhat in their respective approaches to the joinder of charges on the basis of “same or similar character” under FRCrP 8(a). The Seventh Circuit has adopted a narrower categorical approach, like the one proposed by the state in this case, which focuses almost exclusively on the likeness of the “class” or category of the offenses and does not necessarily depend on temporal proximity or evidentiary similarity. United States v. Coleman, 22 F.3d 126, 133-34 (7th Cir. 1994). Thus, when “[t]he elements to be proved in each case were the same,” the Seventh Circuit has held that that “similarity supports the district court‘s decision of joinder” оn the basis of same or similar character. United States v. Archer, 843 F.2d 1019, 1021 (7th Cir.), cert den, 488 US 837 (1988); see Coleman, 22 F.3d at 134 (concluding that “joinder under
Rule 8(a) was appropriate because Coleman was charged with four counts of possession of a firearm, identical 922 (g)(1) offenses which could only vary in time and location but not in their essential elements“).5
On the other hand, the First and Ninth Circuits apply what has been “characterized as a broader, more holistic approach that looks to a variety of factors, including temporal proximity and potential for evidentiary overlap.” United States v. Jawara, 474 F.3d 565, 576 (9th Cir. 2007). For example, the First Circuit conducts a more comprehensive review of the allegations in the indictment by “consid-er[ing] such factors as whether the charges are laid under the same statute, whether they involve similar victims, locations, or modes of operation, *** the time frame in which the charged conduct occurred,” and whether “[w]itnesses and testimony would also overlap.” United States v. Edgar, 82 F.3d 499, 503 (1st Cir.), cert den, 519 US 870 (1996) (internal quotation marks omitted). The Ninth Circuit has stated:
“We consider it appropriate to consider factors such as the elements of the statutory offenses, the temporal proximity of the acts, the likelihood and extent of evidentiary overlap, the physical location of the acts, the modus operandi of the crimes, and the identity of the victims in assessing whether an indictment meets the ‘same or similar character’ prong of Rule 8(a). The weight given to a particular factor will depend on the specific context of the case and the allegations in the indictment. But the bottom line is that the similar character of the joined offenses should be ascertainable—either readily apparent or reasonably inferred—from the face of the indictment. Courts should not have to engage in inferential gymnastics or resort to implausible levels of abstraction to divine similarity. Thus, where the government seeks joinder of counts on the basis
of ‘same or similar character,’ it crafts a barebones indictment at its own risk.”
We conclude that the analysis undertaken by Oregon‘s courts more closely corresponds with the First and Ninth Circuits that conduct a “comprehensive review” of the allegations in the indictment, and which takes into consideration a variety of factors, including the potential for evidentiary overlap and temporal proximity. Id.
For example, in Taylor, the Suprеme Court concluded that multiple robbery offenses that arose out of two separate bank robberies were properly joined “on the basis of their ‘similar character‘” under
We have also applied a similar approach that considers the specific factual allegations in the indictment
and a multitude of factors when assessing the propriety of joinder on the basis of “same or similar character” under
Accordingly, we eschew the state‘s categorical approach, in which all sexual crimes
in the words of the joinder statute, alleging the factual basis for joinder may better serve the purposes” of “eliminat[ing] the need for a defendant to guess the state‘s basis for joinder and to make it possible for the trial court to determine, from the face of the indictment, whether the indictment complies with the joinder statute.” (Internal quotation marks omitted.)).
In summary, to determine whether charges are of “the same or similar character” under
B. Are the sodomy and sexual abuse charges of the same or similar character as the ECSA charges?
Here, the indictment alleged that defendant committed first-degree sodomy (Count 1) and first-degree sexual abuse (Count 2) as follows:
“COUNT 1 [FIRST-DEGREE SODOMY]
“The defendant, on or about April 26, 2015, in Lane County, Oregon, did unlawfully and knowingly engage in deviate sexual intercourse with [K], a child under twelve years of age;
“COUNT 2 [FIRST-DEGREE SEXUAL ABUSE]
“The defendant, on or about April 26, 2015, in Lane County, Oregon, did unlawfully and knowingly subject [K,] a person under the age of 14 years, to sexual contact[.]”
Additionally, with regard to the first-degree ECSA charges, Counts 3 through 17 alleged, in pertinent part:
“The defendant, on or about November 17, 2014, in Lane County, Oregon, did unlawfully and knowingly duplicate а photograph of sexually explicit conduct involving a child *** while knowing or being aware of and consciously
disregarding the fact that creation of the visual recording of sexually explicit conduct involved child abuse.”7
We conclude that the indictment fails to meet the requirements for joinder under
1. Elements of the offenses
As we explain below, the indictment alleges three kinds of statutory violations requiring proof of different elements.
With regard to first-degree sodomy,
With regard to first-degree sexual abuse,
“[s]ubjects another person to sexual contact” and “[t]he victim is less than 14 years of age.”
Hence, the sodomy and sexual abuse counts share some similar elements because they both allege that defendant knowingly engaged in some form of sexual contact with the same child, on the same date, in the same county. However, as we have observed, sexual abuse dоes not have the same elements as sodomy because “sexual abuse requires touching for the purpose of arousing or gratifying the sexual desire of either party,” whereas “[t]he offense of sodomy requires deviate sexual intercourse and does not require proof of arousal or gratification of the sexual desire of either party.” State v. Moore, 185 Or App 229, 230, 58 P3d 847 (2002).9
With regard to first-degree ECSA, under
a “child” is defined as “a person who is less than 18 years of age.”
First-degree ECSA, like first-degree sodomy, does not require proof of touching for the purpose of arousing or gratifying the sexual desire of either party. Additionally, first-degree ECSA does not require proof of any sexual contact between the defendant and a victim whatsoever. Furthermore, the conduct does not need to have actually occurred to prove first-degree ECSA because the conduct can be “simulated.” See State v. Stoneman, 323 Or 536, 540, 920 P2d 535 (1996) (the “child‘s participation in the act must be real, i.e., the sexual act may be ‘simulated,’ but the child‘s participation in that act cannot be” (emphasis in original)). Finally, although the sexually explicit conduct underlying the first-degree ECSA charges can be the same as, or similar to, the conduct underlying charges of first-degree sodomy and sexual abuse, it also includes a wide array of other sexually explicit conduct, some of which does not involve touching a child at all. See
2. Temporal proximity and location
The conduct underlying the ECSA charges was alleged to have occurred on or about April 17, 2014, and November 17, 2014, and the conduct underlying the sodomy and sexual abuse charges allegedly occurred on or about April 26, 2015. As such, the conduct depicted in the sexually еxplicit photographs that defendant duplicated could not have involved the charged sexual offenses against K, because the duplication occurred months before defendant allegedly sodomized and sexually abused K. Furthermore, because the alleged acts in the two sets of charges occurred several months apart and do not necessarily involve the same or similar acts perpetrated against the child victims, the similar, but general, location of the alleged acts, Lane County, does not assist us a great deal in our analysis. Under the circumstances here, we conclude that the temporal proximity and location factors do not favor joinder. Cf. Miller, 287 Or App at 148-49, (concluding that it was apparent from the face of the indictment that charges of attempted murder, first-degree attempted assault, and unlawful use of a weapon were of the same or similar character because the charges all alleged the “defendant‘s unlawful use of a firearm, on the same day, in the same county, and against the same victim“); Meyer, 109 Or App at 603 (defendant‘s five traffic offenses, which took place ovеr the span of six years, were properly joined on the basis of their similar character under
3. Same or similar victims and mode of operation
As noted above, the indictment does not demonstrate that the specific victim of the sodomy and sexual abuse charges, K, is the same child victim that was depicted in the computer files that formed the basis of the ECSA charges. Additionally, the indictment reveals only that K was under 12 years old when the alleged sodomy and sexual abuse offenses occurred, but none of the ECSA charges disclose anything about the ages or sex of the children, other than Counts 16 and 17, which specify the file name as “Kristina—8yo Model.” Thus, the indictment does demonstrate that
there are at least two similar victims involved—two girls under the age of 12. However, the 13 other ECSA counts do not disclose the ages or the sex of the children, and a “child” for purposes of first-degree ECSA is defined as “a person who is less than 18 years of age.”
Because the two sets of charges do not require proof of overlapping elements and do not stem from common events, and because the indictment does not disclose the same or similar modus operandi, the general similarity of the age and sex of two of the victims does not demonstrate the same or similar pattern of conduct by defendant that would support the joinder of all of the ECSA charges with the sodomy and sexual abuse charges. Cf. Taylor, 364 Or at 376-77 (the factual allegations in the indictment demonstrated that the defendant‘s robbery
4. Evidentiary overlap
As for potential evidentiary overlap, the only named victim, K, whose centrality to the sodomy and sexual abuse charges is evident from the face of the indictment, is not included in the ECSA charges. Additionally, for the reasons outlined above, the lack of temporal proximity of the crimes and the lack of overlapping elements does not suggest that there is a significant potential for evidentiary overlap. That
is, it does not appear on the face of the indictment that proof of the ECSA charges depends on the evidence needed to prove the sodomy and sexual abuse charges. And, as we discuss in more detail below, although some of the information about the sexually explicit photographs might be relevant to prove that defendant had a sexual purpose when he committed the crime of first-degree sexual abuse, it does not аppear from the face of the indictment that proof of the sodomy and sexual abuse charges depends on the evidence underlying the ECSA charges. Therefore, the evidentiary overlap does not appear to be significant on the face of the indictment.
5. Conclusion
The only similarity that can be gleaned from this indictment is that all of the charges involve sexual offenses against children. For the reasons discussed above, such a general theme, alone, does not make those offenses, on the face of this indictment, of the “same or similar character.”
In short, when the state chooses to allege multiple crimes by using the wording of different statutory offenses, does not use the joinder language of
The trial court erred when it concluded that the sodomy and sexual abuse charges were of the same or similar character as the ECSA charges, because the indictment fails to comply with
C. Harmless Error
That conclusion, however, does not complete our analysis. We must determine whether the trial court‘s erroneous disallowance of the demurrer affected defendant‘s substantial rights, and, therefore, was not harmless. See
Warren, 364 Or at 128-33 (discussing whether the erroneous disallowance of a demurrer is harmless under
“[I]mproper joinder can prejudice a defendant in several [other] ways, including if the defendant would testify regarding some charges but not others, if the defendant‘s defеnses to the charges could be viewed as inconsistent, if the evidence of one charge might improperly influence the jury‘s verdicts on other charges, or if the evidence could confuse the jury.”
1. Sodomy and sexual abuse charges
We begin with whether the “evidence presented at a trial on the erroneously joined [ECSA] charges would be ‘admissible,’ as we used that term in Poston,” in a trial in which defendant was charged only with first-degree sexual abuse and first-degree sodomy. State v. Clardy, 286 Or App 745, 772-73, 401 P3d 1188 (2017), adh‘d to as modified on recons,
288 Or App 163, 406 P3d 219 (2017), rev den, 364 Or 680 (2019). As we explained in Clardy, 286 Or App at 772-73:
“[E]vidence presented at a trial on erroneously joined charges would be ‘admissible,’ as we used that term in Poston, in a hypothetical trial on each charge or properly joined group of charges, only when (1) each item of evidence that was actually presented could have been admitted in the hypothetical trial under a legally correct evidentiary analysis and (2) it is implausible that, had the defendant objected under
OEC 403 or raised some other objection invoking the trial court‘s discretion, the trial court would have excluded that evidence in the hypothetical trial.”
Here, with regard to the charge of first-degree sexual abuse, the state was required to prove that defendant аcted with a sexual desire that was aroused or gratified by sexual contact with K. See
For the reasons that follow, we do not think that it is implausible that a trial court would exercise its discretion to exclude the evidence underlying the ECSA charges in a trial in which defendant was charged with first-degree sexual abuse and first-degree sodomy under
In Williams, the court observed that, in sexual abuse cases, “there is a slim but distinct difference in using” other acts evidence “to establish [a] defendant‘s character and propensity to act accordingly, and offering that evidence to establish [a] defendant‘s sexual purpose.” 357 Or at 23. Additionally, the court recognized the “historical concern for the prejudice that such evidence poses and the importance that balancing plays in protecting against the harm that may result from its admission.” Id. at 18 (citing Old Chief v. United States, 519 U.S. 172, 180, 117 S Ct 644, 136 L Ed 2d 574 (1997) (“The term ‘unfair prejudice,’ as to a criminal defendant, speaks to
In light of the evidence and arguments in this case, a trial court could conclude that the state had a limited need for the evidence underlying the ECSA charges in a hypothetical trial for sexual abuse and sodomy. Here, the state had evidence of defendant admitting to Grice that he was sexually attracted to K, and defendant did not deny that he was sexually attracted to K or that he was caught in a sexual situation with K. Defendant also admitted to Grice that he had masturbated in front of K and that he had other interactions with K that were sexual in nature, which included touching K‘s genitals. Furthermore, the state presented evidence that J caught defendant with his pants down and K partially naked on J‘s bed, strongly suggesting that defendant was acting with a sexual purpose when he was in the bedroom with K. As discussed, defendant‘s theory of defense was to admit to sexually abusing K but argue that he only attempted to commit sodomy. Given the evidence of defendant‘s sexual attraction to K specifically, and that defendant‘s theory of defense included admitting to the charge of sexual abuse, the central issue reduced to whether defendant completed the act of sodomy, and, thus, the state would have little need to
show that dеfendant was sexually aroused or gratified by sexual contact with children generally by introducing the evidence underlying the ECSA charges. See Moore, 185 Or App at 230 (noting that “sexual abuse requires touching for the purpose of arousing or gratifying the sexual desire of either party,” whereas “[t]he offense of sodomy *** does not require proof of arousal or gratification of the sexual desire of either party“).
Under those circumstances, a trial court could conclude that the state‘s need for the evidence underlying the ECSA charges to prove defendant‘s sexual purpose for the charge of first-degree sexual abuse was relatively low and was substantially outweighed by the potential for “unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence,” because the ECSA evidence has the potential to be used for the improper purpose of proving that defendant completed the charged crime of first-degree sodomy.
As the court explained in Warren, we must also take into consideration whether defendant was prejudiced in other ways, including if defendant‘s defenses to the sodomy and sexual abuse charges could be viewed as inconsistent
with defendant‘s defense on the ECSA charges, and if defendant would have testified regarding the sodomy and sexual abuse charges, but not the ECSA charges. Warren, 364 Or at 133.
In this case, defendant wished to testify regarding the sodomy and sexual abuse charges, but he did not want to testify and be subjected to crоss-examination regarding the
On the other hand, defendant‘s theory of defense to the sodomy and sexual abuse charges was that he did not complete the act of sodomy. Defendant relied on K‘s repeated statements and K‘s testimony that defendant never committed sodomy because J had interrupted defendant before he could complete the act. Additionally, defendant argued that his admission to Grice that he had pressed his penis against K‘s anus was the result of the lengthy interrogation and Grice‘s lie to defendant about K stating that K had felt defendant‘s penis push against her anus. Hоwever, defendant chose not to testify following the improper joinder of the charges due to his theory of defense for the ECSA charges, which did not include defendant testifying. Instead of testifying to refute his admission to Grice, which went to the heart of the sodomy and sexual abuse charges, defendant presented expert testimony about confessions and circumstances that can affect a person‘s memory. In that way too, defendant was prejudiced by the improper joinder, because the joint trial affected his defense in one of the ways that the court identified in Warren. See also Keith, 299 Or App at 359-60 (on reconsideration, concluding that the defendant
suffered additional harm from the erroneous disallowance of a demurrer where the defendant had argued two ways that “his trial strategy would change if the counts were properly severed,” viz., that the defendant “would challenge the admissibility of evidence that would not be subject to challenge in a trial of all the charges,” and that the “defendant would choose to exercise his right to testify differently in separate trials“).
Finally, because the joint trial affected his defense in one of the ways that the court identified in Warren, and because the ECSA evidence had the potential to be used for the improper purpose of establishing that defendant completed the act of sodomy against K, we cannot conclude that that evidence would not have affected defendant‘s substantial rights in a trial in which defendant was charged only with sodomizing and sexually abusing K. Given the evidence and defendant‘s theory of defense in this case, it is not the type of evidence that “might be so benign that its admission has little likelihood of affecting the verdict on the [sodomy and sexual abuse] *** charges.” Clardy, 286 Or App at 773 n 8. See State v. Walsh, 288 Or App 331, 336-37, 406 P3d 152 (2017), rev den, 364 Or 680 (2019) (recognizing that “[i]n making that assessment, *** by relying on multitiered assumptions about hypothetical trials, we encounter increasing difficulty in determining the likely effect of evidence and, accordingly, in concluding whether, as a matter of law,” that the error was harmless). Therefore, based on the record in this case, we conclude that the erroneous disallowance of defendant‘s demurrer affected defendant‘s “substantial rights,” as required for reversal of his first-degree sodomy and sexual abuse convictions under
2. ECSA charges
We now turn to whether the error was prejudicial with respect to the ECSA charges. We begin by considering whether the evidence presented at trial for the sodomy and sexual abuse charges would have been admissible in a hypothetical trial in which defendant was only charged with ECSA.
Without any facts demonstrating that defendant‘s act of sodomizing and sexually abusing K was related to his duplication of child pornography several months earlier, we think it highly unlikely that the evidence of defendant sodomizing and sexually abusing K would have been admissible in a trial
III. CONCLUSION
The trial court erred when it disallowed defendant‘s demurrer and the disallowance of the demurrer was not harmless.
Reversed and remanded for entry of judgment allowing defendant‘s demurrer.