State v. WaltersState v. Walters
- Reporters:
- , ,
- Before:
- Newman
Dеfendant appeals his convictions, after a jury trial, for attempted rape in the first degree,
On August 1,1987, the victim, age 13, was helping her parents conduct a garage sale at their home. In the afternoon, she rode her bike down the strеet to another garage sale. Defendant approached her and asked if she had seen his lost dog. He described it as a white German Shepherd with a black chest and said that it was worth a lot of money. He asked the victim to shоw him the area and help him search for the dog. When she refused, he offered her $10. When she again refused, he offered her $20 and then $30, but she continued to refuse. Defendant said that he would go with her to ask her parents’ permission. She refused dеfendant’s offer to give her a ride to her home in his truck, and she returned home on her bike.
Defendant followed the victim back to her house. She told her mother what had happened. The mother called the police. Meanwhile, dеfendant was looking at items for sale. He asked the mother about one and then, in a totally different tone of voice, said that he had a girlfriend. He then asked about other items and, again in a different tone of voice, asked if she had a daughter. He paid for a bowling ball and some place mats and stated, out of context, that he had lost a dog. He did not ask for help in finding the dog.
An officer arrived. Defendant admitted offering the victim $10 to get in his truck. He told the officer thаt he had just been released from the penitentiary in March. The officer learned that defendant had been convicted as a sex offender and, when she confronted him with that, he said, “My intentions were to have her get in my car and helр me find my dog.” She asked if he was sexually attracted to the victim and, after a pause, he replied, “I could have found myself in an uncomfortable position today and didn’t mean to.” He denied having sexual problems with juveniles. Later in the cоnversation, he stated that the victim was “13 going on 24” and that he “thought she was a lot older than 13.” He said that he did not intend to hurt her and was sorry that he had scared her. He asked the officer to apologize to the victim and her parents on his behalf. Defendant did not own a dog.
*573 In 1981, defendant had been convicted, after pleading guilty, of rape of a 13-year-old girl. He first assigns as error that the court denied his pretrial motion to exclude evidence of the details of that crimе. In its case-in-chief, the state presented the details, including testimony from that victim. In 1981, defendant had approached the 13-year-old girl and asked her to get in his car to help him find his lost German Shepherd dog. When the victim refused, defendant offered her money and, when she continued to refuse, he forced her into his car and took her to his trailer, where he raped and sodomized her. Defendant did not own a dog.
The state argues that it offered the details of the 1981 crime to prove defendant’s intent in the present incident, not to prove his identity through a “signature crime.” See State v. Johns, 301 Or 535, 551, 725 P2d 312 (1986); 1 State v. Bernson, 93 Or App 115, 119, 760 P2d 1362, rev den 307 Or 246 (1988). Attempted kidnapping, rape and sodomy require proof of intent, and defendant’s 1981 crime required proof of intent; in each incident, the victims wеre of similar age, degree of maturity and vulnerability and, therefore, were in the same class; in each incident, defendant’s efforts to entice the victim were substantially similar; and in each incident the physical elements were similar. The сourt found that the state’s need for the evidence was great and that the probative value of details of the 1981 crime on the issue of intent was not outweighed by their inflammatory effect, which the court could reduce with a limiting instruction. 2 The court did not err when it admitted *574 in evidence the details of the 1981 crime. 3
Defendant next assigns as error that the court denied his motion for judgment of acquittal. He argues that the evidence, including the details of the 1981 crime, was insufficient to permit the jury to find that he intended to kidnap the victim or to rape or sodomize her. The state refers to State v. Morgan, 80 Or App 747, 724 P2d 334, rev den 302 Or 461 (1986), where the defendant was convicted of attempted kidnapping in the first degree. He had approached the victim when she was entering her car in a mall parking lot and had displayed a hunting knife. At trial, the cоurt admitted evidence that defendant had been convicted previously of rape and the details of that crime. He had approached a woman in a mall parking lot, threatened her with a gun, taken her to an isolated place and forced her to perform an oral sex act. In holding that the court did not err when it admitted details of the prior crime, we also stated that the evidence was probative of the defendant’s intent because of thе similarity of the incidents and, therefore, the jury could infer that he intended to drive the victim to another location and to sexually assault her. 80 Or App at 751. 4
In
Morgan,
however, the issue was the admissibility of the evidence of the prior crime, not the sufficiency of thе evidence. Moreover, the defendant there had used a weapon to threaten the victim in both incidents. That behavior, in addition to the details of the prior crime, allowed the trier of fact to
*575
infer that the defendant had intended to injure the current victim physically — one of the elements of kidnapping in the first degree.
Here, however, the evidence was insufficient to show that defendant intended to act as he had in 1981. It is true that, from defendant’s persistent efforts, in spite of the victim’s refusal, to entice her into his truck to look for a nonexistent dog, the jury could conclude that defendant intended to interfere substantially with her liberty and to take her from one place to another.
See
The court also instructed the jury on the lesser included offenses of attempted kidnapping in the second degree and attempted sexual abuse in the second degree.
5
To prove attempted kidnaрping in the second degree, the state must prove all the elements of attempted kidnapping in the first degree, except, insofar as pertinent here, that the purpose of the kidnapping was to injure the victim physically.
As to the offense of attempted sexual abuse in the second degree, the evidence was not sufficient to permit the jury to find, beyond a reasonable doubt, that defendant
*576
intended to have sexual contact with the victim.
See
Defendant also argues that there was not sufficient evidence from which the jury could find that he took substantial steps toward the commissiоn of the crimes charged,
Defendant assigns as error that the court found that he is a dangerous offender and imposed a sentence accordingly. A court may sentence a defendant as a dangerous offender for a felony that “seriously endanger[s] the life or sаfety of another.”
Because the issue may arise on remand, we note that defendant’s argument that the court’s instructions to the jury during the penalty phase were erroneous is without merit. He asserts that Cie court erred when it instructed the jury that it could find that defendant’s conduct seriously endangered the
safety
of the victim but did not instruct the jury that it could find that defendant’s conduct endangered the victim’s
“life
or
*577
safety.” (Emphasis supplied.)
Reversed and remanded with directions to enter judgment of conviction for attempted kidnapping II only; to resentence defendant; and to conduct a new dangerous offender hearing.
Notes
In State v. Johns, supra, 301 Or at 555, the court set out the considerations to determine whether a trial court should admit evidence of other crimes, acts or wrongs under OEC 404(3) to show a defendant’s intеnt. The pertinent questions are:
“(1) Does the present charged act require proof of intent?
“(2) Did the prior act require intent?
“(3) Was the victim in the prior act the same victim or in the same class as the victim in the present case?
“(4) Was the type of prior act the same or similar to the acts involved in the charged crime?
“(5) Were the physical elements of the prior act and the present act similar?
“(6) If these criteria are met, is the probative value of the prior act evidence substantially outweighed by the danger of unfair prejudice, confusion of issues or misleading the jury, undue delay or presentation of cumulative evidence?”
The court concluded that the prior crime was not too old to be relevant. Defendant had been incarcerated for most of the time since 1981.
In another assignment of error, defendant challenges the court’s ruling that his prior convictions were admissible for the purpose of impeachment. He contends that OEC 403 and the Oregon and United States Constitutions require that the court weigh thе probative value of those convictions against their prejudicial effect. See OEC 609; see also State v. King, 307 Or 332, 768 P2d 391 (1989). His assignment is without merit.
In Morgan, the court stated:
“Defendant’s intent as to what he planned to do with the victim if she moved over and let him in the car was in issue in this case. In order to prove the attemptеd kidnapping charge, the state had to show, inter alia, that he intended to take the victim from one place to another, without her consent and with the purpose of causing her physical injury. We think that evidence of defendant’s prior crimе is probative of his intent in this case, because the circumstances of the two assaults are so similar. In both cases, defendant approached a woman who was alone in a vehicle in a mall parking lot in the evening, brandishеd a weapon and told the victim to move over. Became the circumstances of the two acts are similar, a jury could reasonably infer that, in this case, defendant intended to drive the victim to another location and sexuаlly assault her.” 80 Or App at 751. (Emphasis supplied.)
The court also instructed the jury on attempted sexual abuse in the
first
degree as a lesser included offense.
“A person is guilty of an attempt to commit а crime when he intentionally engages in conduct which constitutes a substantial step toward commission of the crime.”
Defendant also argues that the court should have instructed the jury on the definition of “endangered.” The word is adequately defined in the statute.
See