STATE OF OREGON, Plaintiff-Respondent, υ. NOAH JONATHAN POWERS, fka Noah Harouff, Defendant-Appellant.
Marion County Circuit Court 18CR51360; A172142
Court of Appeals of Oregon
Argued and submitted October 27, 2021, affirmed January 5, 2023
323 Or App 553 (2023); 523 P3d 1112
Sean E. Armstrong, Judge.
David O. Ferry, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services. Michael A. Casper, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General. Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge.
Held: First, although the trial court erred in admitting evidence of defendant‘s prior bad acts under
Affirmed.
SHORR, J.
Affirmed.
SHORR, J.
Defendant appeals from a judgment of conviction for four sexual offenses involving his stepdaughter. On appeal, he argues that the trial court committed various evidentiary errors and erroneously instructed the jury that it could return a nonunanimous guilty verdict. For the reasons that follow, we affirm.
I. BACKGROUND
Because defendant‘s various assignments of error implicate different standards of review and require us to apply different lenses to the record, we begin with a general overview of the history of the case and provide additional detail within our analysis of particular assignments of error.
The charges in this case followed a disclosure of abuse made by defendant‘s stepdaughter, L, when she was 11 years old. At the time of that disclosure, L lived with her mother and defendant, who were married; L‘s mother (mother) also had an older daughter, W, from a previous marriage who lived primarily with her biological father but also spent time at mother‘s house. L disclosed the abuse to mother and W in 2018 by handing them a handwritten note that said defendant had raped her.
L was later interviewed at Liberty House, a child abuse assessment center, and she described sexual abuse that occurred while defendant was home alone with her. She disclosed that defendant “tried” to put his penis in her vagina and butt. During the interview, L referred to additional handwritten notes describing abuse by defendant.
Following L‘s disclosures, defendant was charged with one count of first-degree unlawful sexual penetration for penetrating L‘s vagina with his finger, one count of first-degree sodomy for engaging in anal sexual intercourse with L, one count of attempted first-degree rape for attempting to engage in sexual intercourse with L, and one count of first-degree sexual abuse for touching L‘s genitals.
Much of the pretrial litigation involved the fact that defendant had been convicted of sexual abuse of a different stepdaughter during a previous relationship—a fact that was known to L and others by the time of L‘s disclosure. Those prior convictions had been uncovered earlier by W‘s father (mother‘s ex-husband) and were shared through an anonymous account via Facebook shortly after defendant‘s and mother‘s wedding. Someone (who defendant believed to be mother‘s ex-husband) also initiated Department of Human Services (DHS) investigations of defendant and mother‘s family before L‘s disclosures. Defendant‘s theory was that mother‘s ex-husband had turned W against him, leading L to falsely accuse him of abuse. Defendant filed motions to compel production of the records of the earlier DHS investigations and handwriting samples from L and W based on defendant‘s suspicion that L‘s notes describing abuse were “secretly written by the older sister.” The court ultimately granted defendant‘s motions for in camera review of the DHS records from 2017 and 2018, and the court required L to provide a handwriting exemplar.
The state, meanwhile, filed a pretrial motion to admit evidence of defendant‘s earlier convictions. The state argued that the prior convictions, which resulted from a guilty plea, and the facts underlying those convictions, were relevant and admissible as evidence
At trial, the state‘s first witness was H, and the state‘s evidence regarding the prior convictions was limited to what the court allowed pretrial. A copy of the judgment of convictions was offered and admitted, and H testified that the counts for which defendant entered guilty pleas were for acts that occurred in 2003 and 2004 when she was 13 or 14, at which time she was defendant‘s adopted daughter. That was the entirety of H‘s testimony.
The state then called L, who was 12 at the time of trial. She testified that defendant first abused her when he took her on a camping trip, but she could not remember the year. She testified that the same type of abuse then continued after the camping trip when they were home alone, while her mother was taking classes on Monday nights. Specifically, she testified that defendant would try to put his fingers in her vagina and that they were “partially in, but not completely.” She testified that it felt like “a lot of pressure against my skin” and that it hurt.
L further testified that defendant would try to put his penis in either her butt or her vagina, and that her clothes would be “pulled down or scooted aside.” She testified that defendant would sit on her back and play with his penis, and that there was often pornography on a TV in the background while the abuse was happening. L described a specific incident in which she was “sick and half asleep” when defendant touched her butt.
L also described the circumstances in which she first disclosed the abuse. She testified that she had gotten in trouble and had been forced to weed strawberries as punishment while defendant, mother, and W had gone to the store. She testified that, when they returned and were upset that she had not finished weeding, she showed her mother and sister a note that she had written while they were gone; that note stated that defendant had “raped me!” and pleaded for help from her mother and sister. L also testified about, and the state introduced, two other notes that she had written describing abuse, but L could not recall whether she had written those notes for her mother or for the abuse assessment center.
L was asked about the fact that her testimony at trial had been different from her grand jury testimony regarding contact with defendant‘s penis. She acknowledged that, when asked during the earlier proceeding whether defendant‘s penis had touched her, she had responded “I don‘t know” or “I don‘t remember,” whereas at trial she had testified that it had. L stated that she had been nervous at the time of the grand jury proceeding.
Following L‘s testimony, the state called the forensic interviewer who interviewed L at the abuse assessment center and played parts of the interview for the jury, including L‘s descriptions of defendant showing her pornography and the abuse that occurred during their camping trip. The interview included, among other things, exchanges in which L explained that defendant “tried” to put his penis in the hole of her butt and in her vagina but that it “[d]idn‘t work.”
Later, the state called L‘s mother as a witness. Mother testified in ways that corroborated the timing of the camping trip and defendant‘s use of pornography. As discussed later, mother was also asked whether defendant was “able to get an erection naturally when you two were intimate?” Defense counsel objected on relevance grounds, and the court excused the jury for a break.
The trial court overruled the objection, but during the break another issue came up: Defendant‘s family members or associates were seen leaving the courtroom and conversing with potential witnesses who had been previously excluded from the courtroom. During questioning outside the presence of the jury, one member of defendant‘s party, Feeney, admitted that he had been
Mother retook the stand after the break, and the prosecutor returned to the line of questioning regarding defendant‘s ability to maintain an erection. Mother stated that defendant required medication to get an erection and that defendant‘s explanation for that was “[t]hat he was not attracted to me, that I was too fat.” The prosecutor then turned to L‘s abuse allegations and defendant‘s response to them. According to mother, defendant categorically denied that he had ever touched L and claimed that it was “anatomically impossible for him to have sex with her.”
During mother‘s testimony, the state also played a recording of a call from jail in which defendant told mother that he had been charged with two A felonies and two B felonies and stated that “I have to fight those honey, because the two A felonies, I did not do. I did not do those. Like I—and I told my—I told my attorney that that shit did not happen.” During the call, defendant also stated, “I cannot live with kids, I realize that.”
On cross-examination, mother was asked about DHS‘s earlier investigation of defendant. The prosecutor objected to the line of inquiry, arguing that the outcome of the earlier DHS investigations was not admissible. Defendant responded that he would avoid asking about DHS‘s findings, but rather wanted to know whether the family was investigated, who initiated the request, whether L relayed any concerns at the time, and whether the family remained intact after the investigation—all of which defendant argued were admissible to impeach L‘s testimony (as opposed to mother‘s). The trial court sustained the prosecutor‘s objection on the ground that there was already evidence in the record that L had never disclosed abuse to anyone before July 2018. When cross-examination resumed, mother testified that L had not voiced any concerns about defendant until the summer of 2018.
The state rested its case after mother‘s testimony, and defendant then called his first witness, his sister Copeland. On direct examination, Copeland, a police officer, testified that she had had opportunities to observe defendant with L and had never seen inappropriate behavior, contrasting defendant‘s behavior with L with what Copeland had observed during defendant‘s abusive relationship with H. On cross-examination, the prosecutor established that Copeland understood the importance of witnesses being excluded from the courtroom and then asked, “And knowing all that, you still let an observer yesterday contact you continuously throughout the day and report to you what was happening in court, correct?”
Defendant objected on the basis of relevance, but the trial court overruled the objection. The prosecutor then asked about Copeland‘s relationship to Feeney, including whether she knew that Feeney had testified that he was reporting back to potential witnesses about what had transpired in the courtroom. After the prosecutor elicited testimony that Copeland knew Feeney had been “kicked out of the courthouse,” the trial court interrupted and took a break.
Outside the presence of the jury, the prosecutor stated that she was done with that line of questioning, and defendant moved for the questions and Copeland‘s responses be stricken from the record as inflammatory and unduly prejudicial. The state replied that the questions were permissible impeachment, and the trial court denied the motion. On redirect, Copeland testified that her responses in court were not influenced in any way by her interactions with Feeney.
In addition to his other witnesses, defendant testified in his own defense. Among other testimony, defendant denied that he had ever touched L for a sexual purpose or masturbated in front of her. He admitted that he was guilty of sexually abusing H, and
During his testimony, defendant acknowledged that he had “climbed over on [L‘s] back” during the camping trip but contended that he did so to “pop” L‘s back because she had back pain. He also denied that he had watched pornography with L, stating that he had watched a documentary about pornography that included nudity and had left it on the screen while L was in the room with him. Defendant testified that he roughhoused with L while he wore pajamas but that it was never his intention “for her to feel anything against me.”
Defendant was also asked on direct examination about mother‘s testimony that he was unable to achieve an erection with her. Defendant testified that he was diagnosed with erectile dysfunction. Counsel then asked him, “Did you ever tell [mother] as she indicated *** that you couldn‘t achieve an erection because you didn‘t find her attractive?” Defendant responded, “No, I did not ever say that to my wife, and that‘s actually really terrible that she internalized my failures—.” Defendant was interrupted by an objection from the prosecutor, which the court sustained, but said that he “absolutely” disagreed that he had ever said that to mother.
After defendant testified, the defense rested its case and the state called a rebuttal witness, Green, a handwriting expert, to testify about authorship of the handwritten notes that described abuse by defendant. But before asking Green for his opinion on the notes’ likely author, the prosecutor asked Green whether he had been contacted by defense counsel and been paid to do a handwriting analysis. Green said that he had been contacted by defense counsel but, before Green discussed hiring, defendant objected. Defendant argued that all of Green‘s testimony was irrelevant because authorship of the notes ultimately had not been put at issue during trial, and, in any event, “[i]t‘s not relevant that the Defense paid Mr. Green. And it‘s only prejudicial that the Defense paid Mr. Green.” The prosecutor then said that she would “withdraw that question and instead ask was he hired,” and the court stated, “All right. So the objection is overruled in its entirety.” When questioning resumed, the prosecutor asked not only whether Green “was hired” but whether Green was “hired by Defense counsel to conduct a handwriting analysis,” to which he responded affirmatively. Defendant did not object again at that point, and Green proceeded to opine that the notes had been written by L based on handwriting exemplars that he had reviewed.
The trial court then instructed the jury, including an instruction that “[b]efore considering evidence of [defendant‘s] prior bad acts, the jury must first answer a question as to whether [he] touched a sexually intimate part of [L],” and that “[i]t is then, and only then,” that the jury may consider the evidence “for the limited purposes of its bearing, if any, on whether [defendant] acted with a sexual purpose.”
The jury unanimously found defendant guilty on all counts, and he timely appealed the judgment.
II. DISCUSSION
On appeal, defendant advances six assignments of error, which we address in turn.
A. Admission of Evidence of Prior Sexual Abuse
In his first assignment of error, defendant asserts that the trial court erred in admitting evidence of his prior sexual abuse of H. As described above, the court admitted, over defendant‘s objection, court-certified copies of defendant‘s 2006 convictions for attempted sexual abuse of H and testimony from H about her age and relationship to defendant at the time of the offenses. The court ruled that that evidence was admissible on two separate grounds: (1) under
With regard to admissibility under
The court then conducted balancing under
“Evidence of the prior bad acts is prejudicial because it is relevant. There is the possibility, as in all cases in which the court admits prior bad acts, that the jury could be distracted by this evidence. On these facts, the court does not conclude that the probative value of the defendant‘s [three] prior convictions and [H‘s] testimony as to her age and step-daughter relationship to the defendant at the time the underlying conduct occurred is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. The court does not reach the same conclusion with regard to [H‘s] testimony regarding the specific acts she claims the defendant committed against her because the probative value of her testimony as to the specific acts the defendant perpetrated is unknown.
“As the state intends to offer only the court-certified convictions of the defendant and the testimony of one witness ([H], the previous victim), the court is not concerned about undue delay or the needless presentation of cumulative evidence.
“On balance, the state‘s need to present these prior bad acts is great as it must prove the defendant‘s intent with regard to each of the four counts. That need is greater than the defendant‘s desire to exclude it based upon the concerns identified above, particularly when the jury is already going to hear allegations of remarkably similar conduct against a similarly-situated victim.”
The court then separately addressed
“The decisional authority favoring admissibility of the proffered prior bad acts under
OEC 404(4) is more straightforward; the proffered bad acts would all be admissible underOEC 404(4) as evidence that the defendant has a sexual interest in children. The court does not reach a different analysis for admissibility for that purpose underOEC 403 and incorporates its analysis above.”
On appeal, the parties agree that the landscape regarding
Defendant, meanwhile, contends that the trial court‘s
The parties’ dispute is a variation of one that has arisen multiple times in the wake of Skillicorn, as we recently explained:
“In some instances, after determining that a trial court erred in admitting propensity evidence under
OEC 404(3) , we have considered, ‘[re]gardless of how the evidence is characterized,’ whether the trial court substantively understood that the state‘s theory of relevance depended on propensity reasoning when it admitted the evidence after balancing underOEC 403 . State v. De Leon Say, 319 Or App 271, 273, 510 P3d 979 (2022); Terry, 309 Or App at 464; see [Martinez, 315 Or App at 57-58] (considering whether the trial court ‘implicitly’ understood it was admitting propensity evidence underOEC 404(4) ). *** [T]hat is because both the label placed on the evidence—either nonpropensity underOEC 404(3) or propensity underOEC 404(4) —and the substantive content of the arguments for and against admissibility inform our understanding of the trial court‘s ruling. State v. Travis, 320 Or App 460, 469-70, 513 P3d 614 (2022).”
State v. Cave, 321 Or App 81, 87-88, 516 P3d 279 (2022).
Unlike some cases in which we have been called upon to determine whether the trial court‘s ruling demonstrated that it implicitly understood the evidence to be admissible as propensity evidence under
Contrary to defendant‘s contention, the fact that the trial court incorporated its previous
Here, viewed in the context of the court‘s express
As we discussed in Terry, the Ninth Circuit identified factors in United States v. LeMay, 260 F.3d 1018 (9th Cir. 2001), cert den, 534 US 1166 (2002), “to guide a court‘s exercise of discretion in determining whether to admit evidence of uncharged sexual misconduct in a prosecution for sex crimes.” Terry, 309 Or App at 465. Those factors include (1) the similarity of the uncharged misconduct; (2) the temporal proximity of the uncharged acts to the charged acts; (3) the frequency of the prior acts; (4) the existence or nonexistence of intervening circumstances; and (5) the need for the evidence in addition to the testimony already offered at trial. LeMay, 260 F.3d at 1028.
In Terry, we concluded that, “[t]aking those factors into account, we cannot say that the trial court abused its discretion in admitting the evidence of defendant‘s prior conviction, his statement about the circumstances underlying that conviction, and his statement admitting his attraction to 10- to 13-year-old girls.” Terry, 309 Or App at 465. We explained that “[t]he state had a strong need for the evidence, the victim of the charges was close in age to the category of girls that defendant admitted an attraction to, and not too much older than the 10-year-old victim of the prior charges,” and the evidence, “although potentially inflammatory, could be addressed through a limiting instruction, something the trial court offered.” Id.
The same is true in this case. As the trial court explained when discussing the state‘s theory of “intent” (which, in light of Skillicorn, was actually a propensity-based theory), “[t]he probative value of the defendant‘s similar conduct, requiring similar intent, against a similar victim who was in a unique relationship that allowed defendant access to her is high,” and “the state‘s need to present these prior bad acts is great as it must prove the defendant‘s intent with regard to each of the four counts.” The court further reasoned that the potentially inflammatory nature of the evidence could be addressed by restricting the evidence to the three prior convictions and H‘s testimony as to her age and relationship to defendant at the time of the abuse—without further factual detail regarding the specific acts—along with a limiting instruction, which the trial court gave. In light of those factors—the underlying offenses and the children‘s ages and relationships to defendant were very similar, the state needed the evidence to show that defendant acted with a sexual purpose as to each charge in a case where defendant disputed that he had ever touched L with a sexual purpose, and the court made use of a limiting instruction—the trial court reached a permissible conclusion under
B. Cross-Examination of Mother Regarding DHS Investigation
Defendant next assigns error to the trial court‘s ruling limiting his cross-examination of mother concerning an earlier DHS investigation. Defendant contends that his questions about the DHS investigation, and mother‘s observations during that investigation, were permissible bases for testing mother‘s credibility and potential biases and would have produced evidence critical to his theory of defense: namely, that L‘s allegations were the product of mother‘s ex-husband‘s efforts to remove defendant from mother‘s life; that mother‘s ex-husband had earlier initiated DHS investigations into the family, but that those investigations did not corroborate abuse because L was not willing to falsely accuse defendant at that time; and that L subsequently became angry at defendant and alleged that abuse had occurred prior to the DHS investigations, despite her previous denials of any abuse to DHS.
On this record, defendant has not demonstrated that the trial court committed reversible error by limiting his cross-examination of mother. After the prosecutor objected to defendant‘s line of inquiry regarding the earlier DHS investigation, defendant explained that he wanted to ask mother four questions related to the investigation: “Was there an investigation? Do you know who initiated it? Did [L] disclose anything to you during that time? And did the family remain intact after that investigation?” Defendant explained that the questions were for the purpose of impeaching L based on mother‘s observations of L‘s responses and demeanor in 2017.
The trial court sustained the state‘s objection on the ground that there was already evidence in the record that L had never disclosed abuse to anyone before July 2018. At that point, defendant did not make an offer of proof as to how mother would have answered any of the questions he wanted to ask. Rather, once cross-examination of mother resumed, defense counsel elicited testimony from mother that defendant remained in mother‘s household with her and the children until the summer of 2018 and that, prior to the summer of 2018, L did not voice any concerns to her about defendant.
Given that context, we agree with the state that, without an offer of proof, defendant cannot demonstrate he was prejudiced by any error in limiting his cross-examination. The jury heard evidence that L had not previously disclosed any abuse before the summer of 2018, and mother testified that the family remained intact up until that point. We cannot speculate as to what mother may have said about the previous DHS investigation, who initiated it, or what mother may have observed during the investigation, or whether such testimony would have meaningfully differed from other evidence that the jury heard about L‘s failure to disclose abuse earlier. See State v. Krieger, 291 Or App 450, 457, 422 P3d 300 (2018), rev den, 363 Or 599 (2018) (holding that, in the absence of a sufficient offer of proof, the defendant had not “provided this court with a record from which we can determine whether the error—if any—was harmless“). We therefore reject defendant‘s second assignment of error.
C. Admission of Testimony Regarding Defendant‘s Erectile Dysfunction
In his third assignment of error, defendant argues that the trial court erred by overruling his objection to the prosecutor‘s question to mother about defendant‘s ability to maintain an erection, thereby allowing mother to testify that defendant required medication to get an erection and that defendant told her “[t]hat he was not attracted to [mother], that [she] was too fat.” According to defendant, evidence that he experienced erectile dysfunction and blamed it on mother‘s
We are not persuaded that the court either legally erred in concluding that the evidence was relevant under
D. Impeachment of Copeland
In his fourth assignment of error, defendant argues that the trial court erred and abused its discretion when it allowed the state to impeach Copeland by asking her about Feeney and whether she knew that Feeney had been kicked out of the courthouse. We disagree. Defendant‘s family members and friends had been seen leaving the courtroom and conversing with witnesses, and Feeney actually admitted that he had been discussing trial testimony with defendant‘s sisters, which could have included defendant‘s sister Copeland. The court also expressly found defendant‘s parents to have not been credible in claiming that they had not discussed trial testimony with witnesses, again possibly including Copeland. Under the circumstances, the trial court acted within its discretion in allowing the state to briefly explore for impeachment purposes, on cross-examination, whether communications with Feeney outside the courtroom had somehow influenced Copeland‘s in-court testimony. Cf. United States v. Erickson, 75 F.3d 470, 480 (9th Cir. 1996) (describing cross-examination as the “usual remedy” for a potential sequestration violation).
E. Admission of Handwriting Expert‘s Testimony
In his fifth assignment of error, defendant argues that the trial court erred in overruling defendant‘s relevance objection to evidence that defendant had hired Green, the handwriting expert who ended up testifying for the state on rebuttal. Defendant argues that, because he ultimately did not present his theory that W wrote the accusatory notes as opposed to L, there was “little need for the expert at all.” Moreover, he argues, the fact that the defense had hired Green but then abandoned the theory had “absolutely no relevance to any material issue in the case” and served only “to make the defense appear less competent and less credible as a whole.”
Defendant‘s first argument—that Green‘s testimony was not relevant because he abandoned his theory that the letters were written by W—is not supported by the record. Although defendant did not expressly advance that theory at trial, he did so implicitly, including through questioning of L and other witnesses. Green‘s testimony was relevant to authorship of the notes, which remained a fact of consequence in the case even if defendant did not press the theory.
The closer question is the relevance of the fact that defendant had previously hired Green. That relevancy question is one that appears to have split courts. See Fitzgerald v. Roberts, Inc., 186 NJ 286, 302-03, 895 A2d 405, 414-15 (2006) (describing disagreement among courts as to “what limitation, if any, should be placed upon the party who is presenting and questioning his adversary‘s former expert“). However, it is not one that we need to resolve in this case. Even assuming that the court erred by admitting evidence that defendant had hired Green, there is little likelihood on this record that the jury‘s verdicts on any of the charges were affected by that error. This was a case in
F. Nonunanimous Jury Instruction
Defendant‘s sixth and final assignment of error is that the trial court erred when it denied his request for a unanimous jury verdict instruction and instead instructed the jury that it could convict defendant by a vote of 10 of 12 jurors. Although the court erred in giving the nonunanimous jury instruction, Ramos v. Louisiana, 590 US 83, 140 S Ct 1390, 206 L Ed 2d 583 (2020), the error is not reversible because it is not structural error and was harmless beyond a reasonable doubt in light of the fact that all of the verdicts were unanimous. State v. Flores Ramos, 367 Or 292, 334, 478 P3d 515 (2020).
In sum, we reject each of defendant‘s assignments of error for the reasons expressed above.
Affirmed.