STATE OF OREGON, Plaintiff-Respondent, v. CALEB JAMES LEE JOHNSON, aka Caleb Jamelee Johnson, Defendant-Appellant.
Multnomah County Circuit Court 16CR25479; A164500
Court of Appeals of Oregon
May 5, 2021
311 Or App 111 | 489 P3d 1046
Kathleen M. Dailey, Judge.
Submitted January 15, 2019; convictions on Counts 1 through 10 reversed, convictions on Counts 13, 16, and 17 reversed and remanded, remanded for resentencing, otherwise affirmed May 5, 2021
Defendant appeals a judgment of conviction for five counts of first-degree sodomy,
Convictions on Counts 1 through 10 reversed; convictions on Counts 13, 16, and 17 reversed and remanded; remanded for resentencing; otherwise affirmed.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Joshua B. Crowther, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jacob Brown, Assistant Attorney General, filed the brief for respondent.
Before DeHoog, Presiding Judge, and DeVore, Judge, and Aoyagi, Judge.
DeHOOG, P. J.
Convictions on Counts 1 through 10 reversed; convictions on Counts 13, 16, and 17 reversed and remanded; remanded for resentencing; otherwise affirmed.
DeHOOG,
Defendant appeals a judgment of conviction for five counts of first-degree sodomy,
We first consider defendant‘s arguments regarding his motion for judgment of acquittal because they are dispositive as to a number of counts. Defendant‘s first through seventeenth assignments of error contend that the trial court erred in declining to acquit him on Counts 1 through 16 and Count 18. Defendant contends that the state failed to produce evidence sufficient to corroborate his confessions as to those counts, as required under
“When reviewing the denial of a motion for judgment of acquittal, we view the evidence in the light most favorable to the state and determine whether a rational factfinder could have inferred that the state had proven all of the essential elements of the charged crime beyond a reasonable doubt.” State v. Nickles, 299 Or App 561, 562, 451 P3d 624 (2019). However, in determining whether the state has met that burden, we may consider evidence of a defendant‘s confession only if the confession is supported by legally sufficient corroborating evidence. Id. We state the relevant facts with those standards in mind.
In April 2016, defendant was married to Johnson and lived with her and Johnson‘s three-year-old daughter, B. On the evening of April 27, 2016, while defendant was at
After putting B to bed for the evening, Johnson called defendant on his cell phone and confronted him with what B had told her. When Johnson asked defendant whether B‘s statements were true, defendant replied, “Yes,” and, “Can we talk about it?” The next day, defendant told Johnson that it had “happened more than once” and that, “the farthest it had [gone] was having [B] put her mouth on his penis and a little of rubbing up *** in between her legs.” During their conversation, defendant told Johnson that it had been going on since the beginning of that year and expressed regret and remorse.
Johnson filed a report with the police and also notified the pastor of the church that she and defendant attended. Sometime thereafter, defendant sent a message to the pastor and another church member that said, “Hey, guys. I don‘t know how you are feeling about me right now, but I‘m scared. I feel lost. I don‘t know what to do. My life as I know it, is over, but not just mine. I have ruined [Johnson] and [B‘s] lives as well. I am just hurting so bad right now and I don‘t know how I will forgive myself. I feel all alone.”
On April 29, defendant went to the police station and gave a detailed confession to Detective Gandy. Defendant confessed to having sexually assaulted B on several occasions beginning in February of that year, during which he had placed B‘s hands on his penis and rubbed his penis against her backside, between her legs, and against her vagina. Defendant told Gandy that each incident had occurred in the morning, while he was getting B ready for school. Defendant explained that his behavior had escalated one morning in April, when he had pulled out his penis and asked B to put it in her mouth. Defendant said that B had placed her lips on his penis for about 10 seconds before pulling away. B told defendant that she did not like it and did not want to do it. At that point, defendant told B, “it‘s okay ‘cause mommy does it,” and he put his penis in B‘s mouth for 10 to 20 seconds. Defendant told Gandy that he then left B in her bedroom and went to the bathroom alone.
Defendant next told Gandy about another incident in April, during which he had again asked B to put his penis in her mouth, and said that on that occasion she had initially done what he asked. When B then pulled defendant‘s penis out of her mouth and said, “I don‘t like it, Daddy,” defendant told her, “Okay. Just a little bit more and you don‘t have to do it again,” and put his penis back in her mouth. At some point, B said, “I don‘t want to anymore,” and defendant replied, “Okay, baby. I just *** have to finish and then we can go to school.” Defendant told Gandy that, at that point, he had taken B into the bathroom with him and “finished himself off.” After masturbating, defendant “asked her if she would lick” his penis. B said that she did not want to, and defendant replied, “Okay baby. You don‘t have to if you don‘t want to, but could you just do it just one time, just a little bit?” B touched the tip of defendant‘s penis with her tongue and then pulled away.
As a result of B‘s disclosures and defendant‘s confessions, defendant was ultimately charged by indictment with 18 counts of first-degree sexual abuse and first-degree sodomy. At defendant‘s ensuing trial, the prosecution explained in closing arguments that each of the 18 counts corresponded to the acts described in defendant‘s confession to Gandy. Counts 1 through 11 corresponded to the earlier incidents in which defendant confessed to having had B touch his penis with her hand and having rubbed his penis on various parts of her body. Based on defendant‘s confession to that conduct, he was charged with 11 counts of first-degree sexual abuse alleged to have occurred from about February 1 to April 1. However, on appeal, the state acknowledges that B‘s disclosure did not refer to any such contact; furthermore, the state offers no other theory of corroboration as to those charges. The state
We turn to whether there was sufficient corroborating evidence with respect to Counts 12 through 16 and Count 18. Counts 12 through 18 arose from the last two incidents described above, which, according to defendant, had occurred in April, and are alleged in the indictment as having occurred on April 15 and April 27, respectively. The first of those incidents (alleged to have occurred on or about April 15) gave rise to charges of one count of first-degree sodomy (Count 12) for defendant having put his penis in B‘s mouth the first time, a second count of first-degree sodomy (Count 13) for having put his penis in her mouth a second time, and one count of first-degree sexual abuse (Count 14) for having caused B to have sexual contact with his penis. The second incident (alleged to have occurred on or about April 27), resulted in three counts of first-degree sodomy (Counts 15 through 17), the first two for defendant having placed his penis in B‘s mouth and the third count for having put his penis back into her mouth after masturbating, as well as one count of first-degree sexual abuse (Count 18), again for having caused B to have sexual contact with his penis.
At issue in this case is whether defendant‘s confessions regarding the two April incidents were sufficiently corroborated to support defendant‘s convictions resulting from those incidents.
Defendant acknowledges that an allegation by a child victim that she has been sexually abused is “‘some other evidence’ sufficient to corroborate the confession of [a] defendant.” State v. Campbell, 299 Or 633, 647, 705 P2d 694 (1985) (a “complaint from a three-year-old that a person ‘licked her tee-tee’ is certainly ‘some other evidence‘“); see also State v. Shelton, 218 Or App 652, 180 P3d 155, rev den, 345 Or 318 (2008) (child victim‘s disclosure that defendant liked it when she grabbed his genital area and that the defendant had touched her vagina, as well as testimony that the victim had been engaging in unusual sexual behavior, corroborated defendant‘s confession to two counts of first-degree sexual abuse). Defendant contends, however, that, in his case, B‘s disclosure to Johnson corroborated only a single act of sodomy, specifically Count 17, and not “multiple other acts or an unlimited number of other confessions.”4 To support his argument,
The state, on the other hand, contends that B‘s disclosure that she had to put her mouth on defendant‘s penis corroborated the corpus delicti of all the acts of first-degree sodomy and first-degree sexual abuse charged in Counts 12 through 18. Moreover, focusing on the details of B‘s disclosure, the state contends that B‘s disclosure necessarily referred to more than one incident. That is, the state reasons that B‘s disclosure about defendant telling her that “mommy does it” was in reference to the April 15 incident, in which defendant confessed to telling B, “it‘s okay ‘cause mommy does it.” Similarly, the state contends that B‘s disclosure about the fact that she “finished it,” referenced the
later April 27 incident, in which defendant confessed to telling B, “Okay, baby. I just *** have to finish and then we can go to school.”
We have no difficulty concluding—as defendant concedes—that the state presented legally sufficient evidence from which the jury could draw an inference that tended to prove that at least one act of sodomy occurred. The corpus delicti for a first-degree sodomy charge is that a person engaged in “deviate sexual intercourse” with the alleged victim or caused the alleged victim to engage in such acts. State v. Delp, 218 Or App 17, 29, 178 P3d 259, rev den, 345 Or 317 (2008);
In short, we are unpersuaded by defendant‘s argument that nothing about B‘s disclosure could reasonably be interpreted as supporting an inference that she had been subject to oral contact with defendant‘s penis multiple times. As noted, the threshold for corroboration is low. All that is required is that the state present evidence that permits a reasonable inference that each crime to which
defendant confessed did, in fact, occur. State v. Fry, 180 Or App 237, 246, 42 P3d 369 (2002). B‘s statement to Johnson was that she had “had to put [her] mouth on daddy‘s pee-pee” and that it had happened “before school.” While B‘s disclosure may, in the abstract, be viewed as referring to only a single act, when viewed in the light most
Here, B‘s disclosure to Johnson did not limit the number of times or occasions on which she had had to put her mouth on defendant‘s penis. That is, B did not tell Johnson that it had happened once, as opposed to repeatedly, nor did she indicate to Johnson that, by saying that it had happened “before school,” she meant that it had only happened before school on the specific day of her disclosure. Thus, although we disagree with the state‘s contention that B‘s disclosure on its own necessarily referred to multiple instances, we conclude that her disclosure could be understood in that manner. To be sure, a jury might reasonably find that evidence insufficient to convict defendant of multiple counts. However, “for that issue to go to the jury, the state was only required to submit enough evidence from which a rational trier of fact could draw an inference that tend[ed] to show that the charged crimes [had] occurred.” Hernandez, 256 Or App at 367-68 (emphasis in original).
The evidence of B‘s disclosure met that standard. That is particularly true given that parts of B‘s disclosure appear to correspond to two unique statements that defendant admitted to having made while sexually abusing B and that, according to defendant, he had made on two separate days. Specifically, B told Johnson that, “Daddy said that mommy does it, so I have to do it.” That part of B‘s disclosure could be viewed as referring to defendant‘s statement, “it‘s okay ‘cause mommy does it,” which defendant admitted to having made to B during the first of the two sodomy incidents in April. B also said to Johnson, “So I finished it.”
That statement, in turn, arguably relates to the statement defendant admitted to having made during the second sodomy incident, namely, “Okay, baby. I just *** have to finish and then we can go to school.” That evidence was sufficient to permit the jury to find that the offense of sodomy had occurred on at least two occasions. Moreover, defendant advances no argument suggesting that, if B‘s statement is sufficient for that purpose, it is nonetheless insufficient to corroborate defendant‘s confession to multiple acts of sodomy on each of those occasions. Thus, we conclude that the trial court did not err in denying defendant‘s motion for judgment of acquittal regarding each of the challenged sodomy counts, Counts 12, 13, 15, and 16.
As for the two corresponding first-degree sexual abuse charges alleged in Counts 14 and 18, the corpus delicti for first-degree sexual abuse is that the alleged victim was subjected to sexual contact. Delp, 218 Or App at 29;
We turn next to defendant‘s supplemental assignments of error, in which he contends that the trial court erred when it (1) instructed the jury that it could reach nonunanimous verdicts, (2) submitted a jury verdict form that allowed for nonunanimous verdicts, and (3) received nonunanimous verdicts on Counts 3, 5, 6, 7, 8, 10, 13, 16, 17,
and 18. At trial, defendant requested that the
Convictions on Counts 1 through 10 reversed; convictions on Counts 13, 16, and 17 reversed and remanded; remanded for resentencing; otherwise affirmed.