655
Argued and submitted April 21, 2017, affirmed March 11, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
STEVEN DOUGLAS ROCKETT,
Defendant-Appellant.
Washington County Circuit Court
C131929CR, C132673CR;
A160031 (Control), A160080
463 P3d 1
In a consolidated appeal, defendant appeals a judgment of conviction for 13
sexual offenses committed against victims A, B, and C. Among the issues that
he raises on appeal, he contends that the trial court erroneously admitted other-acts evidence against him and erred in awarding compensatory fines in favor of
A, B, and C. Held: The trial court did not err in concluding that the other-acts
evidence was admissible under OEC 404(3). Further, the balancing that the trial
court undertook under OEC 403 to determine whether the probative value of
the other-acts evidence was substantially outweighed by the risk of unfair prejudice to defendant was appropriate, and the trial court did not abuse its discretion in admitting that evidence. Defendant failed to object at trial to the trial
court’s findings that A, B, and C had suffered economic damages as a result of
defendant’s criminal conduct and were victims eligible to recover damages from
defendant in a civil action. In light of those findings, the trial court did not err
in awarding compensatory fines in the amounts that it awarded to each victim.
Affirmed.
Andrew Erwin, Judge.
Lindsey Burrows, Deputy Public Defender, argued the
cause and filed the supplemental brief for appellant. Also
on the opening brief was Ernest G. Lannet, Chief Defender,
Criminal Appellate Section, Office of Public Defense Services.
David B. Thompson, Assistant Attorney General, argued
the cause for respondent. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Erin K. Olson and Law Office of Erin Olson, P. C., filed
the brief amicus curiae for Victims.
656 State v. Rockett
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Shorr, Judge.*
ARMSTRONG, P. J.
Affirmed.
______________
* Tookey, J., vice Wollheim, S. J.
Cite as 302 Or App 655 (2020) 657
ARMSTRONG, P. J.
In a consolidated appeal, defendant appeals a judgment of conviction for 13 sexual offenses committed against
A, B, and C.1 In nine assignments of error, defendant contends that the trial court erroneously admitted uncharged
misconduct evidence about defendant’s Facebook communications and hidden-camera evidence, erroneously excluded
impeachment evidence, and improperly imposed compensatory fines. Defendant argues that the trial court’s incorrect
evidentiary rulings entitle him to reversal of his convictions
and a new trial. Alternatively, defendant contends that,
if we uphold the convictions, we must remand for resentencing because of errors in imposing the compensatory
fines.
The state responds that all of defendant’s arguments are either unpreserved or present no basis for reversal. We write to address defendant’s assignments of error
related to the admission of Facebook communications and
three categories of hidden-camera evidence and the imposition of compensatory fines, and we reject the remaining
assignments of error without discussion.2 We conclude that
all three categories of the hidden-camera evidence and the
Facebook communications with A were admissible under
OEC 404(3). Further, the trial court’s balancing under OEC
403 to determine the admissibility of that evidence was
appropriate, and the court did not abuse its discretion in
1
This is a consolidated appeal involving five different victims in two different
cases that were joined below: In A160031 (Case No. C131929CR) defendant was
convicted after jury trial of 13 sexual offenses committed against A, B, and C.
In A160080 (Case No. 132673CR), defendant pleaded guilty to one count of
attempt to use a child in a display of sexually explicit conduct, ORS 163.670, and
two counts of invasion of personal privacy, ORS 163.700. On appeal, defendant
assigns error only to rulings in Case No. C131929CR; he has not assigned error to
any ruling in Case No. C132673CR. The judgment in the latter case is, therefore,
affirmed.
2
In his tenth through twelfth assignments of error, raised in a supplemental
brief, defendant makes unpreserved arguments that the trial court erred when
it instructed the jury in Case No. C131929CR that it could convict defendant by
nonunanimous verdict and when it accepted nonunanimous verdicts on Counts
6, 8, 9, and 14. Defendant contends that the Sixth and Fourteenth Amendments
to the United States Constitution require unanimous jury verdicts to convict him
on the charges in this case. We reject those assignments of error on the merits
without further discussion. See State v. Gerig, 297 Or App 884, 886 n 2,
444 P3d
1145 (2019) (taking that approach).
658 State v. Rockett
admitting that evidence. Also, we conclude that defendant
failed to object to the trial court’s findings that A, B, and C
had suffered economic damages and were victims eligible to
recover damages in a civil action against him for purposes of
an award of a compensatory fine under ORS 137.101. Hence,
we reject defendant’s challenge to the compensatory fines in
the amounts that the court awarded to each of the victims.
Accordingly, we affirm.
I. BACKGROUND FACTS AND PROCEDURE
The following facts are procedural or undisputed.
The state charged defendant with multiple sexual offenses
committed against three sisters, A, B, and C, all of whom
were under the age of 14 at the time of the alleged acts. All of
the charges stemmed from conduct alleged to have occurred
between 2003 and 2013. During that period, the girls spent
considerable time with defendant, who was a family friend.
Over the years, defendant offered various types of support to
Joseph and Cheryl, the father and mother of the girls. When
the parents needed extra help, the girls would sometimes
live with defendant for periods ranging from weekends to
several months.
In August 2013, Cheryl was struggling with many
of A’s behaviors. Because of that, Cheryl told A that she was
going to call defendant and ask him if A could live with him
again. A said that, if her mother did that, A would run away.
When Cheryl asked why, A told her that “[defendant] fucking raped me.” A told Cheryl that she had proof and showed
Cheryl Facebook messages from June 2013, when defendant
asked A to take and send photographs of herself to him. B
was in the room during that conversation, and she started
crying and said that defendant had touched her when she
was at his house. Cheryl responded by placing a call to C to
ask her whether defendant had “ever touched [her] or done
anything to [her].” C said that he had.
Cheryl called the police, and Detective Cox was
assigned as lead investigator in the case. Cox interviewed A
and B in August 2013. A and B were thereafter referred to
CARES, a medical program that assesses children to determine whether they have been abused. Among other things,
A reported in her interview with CARES that defendant had
Cite as 302 Or App 655 (2020) 659
asked her through Facebook messages to send him “naked
photos” of herself.
Both A and B disclosed in their interviews with Cox
and CARES that they had been subjected to sexual abuse by
defendant. During the investigation, Cox and another detective interviewed defendant about the girls’ allegations. In
the interview, the detectives confronted defendant with his
Facebook messages with A in which defendant had told A
to send him “nice quality pictures that show how you have
changed since the last pictures I have of you” and that “they
better be good quality and no shy.” When A responded that
she did not have a mirror, defendant told her to “use the
one in the bathroom just stand back and hold the camera
higher up and point it downwards to get the full picture.”
Defendant messaged A that he had to get back to work, and
that “now would be a good time for you to go take a shower
and take the pictures while you are in there so you get them
done and out of the way.” A responded that she took one this
morning and “thought it could have clothes on,” and defendant wrote back, “I will make you a deal just one without
and all the others with as long as you get a good picture
and not have to show your face.” A had lost her iPhone, and
defendant messaged her that, “if you are going to have to
work for a replacement phone can [sic] only do it on Tuesday
or Wednesday, only times I have to take off from work.” A
responded that “I’ll just go without one. I don’t want to do
that stuff again. I have nightmares cuz of it and I cry myself
to sleep a lot since then.”
Defendant told the detectives that he had asked A
in his Facebook messages for photographs of her because he
wanted to see how much she had grown since he had seen
her in person. He also claimed that he did not mean for A
to take the photographs in the shower but that she should
take a shower. He also claimed that he did not remember
the Facebook conversation and had been drinking alcoholic
“slushies” at that time.
During the investigation, police discovered several
devices in defendant’s home that contained hidden cameras,
including a clock with a camera and a hidden camera in an
upstairs bathroom. The bathroom camera captured images
660 State v. Rockett
of the large bathroom mirror and vanity area, and it was
connected to a digital recording device in defendant’s master
bedroom. Detective Rookhuyzen viewed images captured on
the camera, and he believed that the camera was positioned
to capture images of people entering and leaving the shower.
The police department spent considerable time attempting
to identify the children whose images were on the camera
because they were potential victims of defendant’s use of it.
The time it took to identify the potential victims prevented
police officers from identifying other witnesses to whom A
and B had disclosed their abuse. When Detective Cox left
the Washington County Sheriff’s Office in August 2014, not
all of the potential victims from defendant’s use of the hidden bathroom camera had been identified.
Based on evidence gathered regarding defendant’s
alleged acts of sexual abuse toward A, B, and C, the state
charged defendant with the following crimes: one count of
first-degree unlawful sexual penetration (Count 1), ORS
163.411; six counts of first-degree sexual abuse (Counts 2-3,
5-6, and 13-14), ORS 163.427; three counts of using a child
in a display of sexually explicit conduct (Counts 4 and 11-12),
ORS 163.670; two counts of second-degree sodomy (Counts
7-8), ORS 163.395; and two counts of second-degree rape
(Counts 9-10), ORS 163.365.
The evidence discovered during the investigation
also led to charges in two other cases involving exploitation
and sexual abuse of minors. Those cases were joined with
the case involving A, B, and C. Defendant moved to sever
the three cases for trial. The trial court denied defendant’s
motion, and the court ruled that all the evidence in each
case would be admissible in all three cases.
A. Pretrial Hearing on Defendant’s Motion in Limine
Before trial, defendant filed a motion in limine
that sought to exclude 11 categories of “uncharged conduct
and/or prior bad act” evidence, which included Facebook
communications by defendant with A and with people in
the Philippines; evidence from defendant’s computer and
emails; child pornography; and hidden-camera evidence.
Defendant’s motion in limine asserted that, under the
Cite as 302 Or App 655 (2020) 661
proper application of OEC 404(3),3 OEC 404(4),4 and OEC
403,5 the trial court should exclude all 11 categories of evidence. Defendant made the following arguments: (1) none of
the evidence met the test for “doctrine of chances” evidence
to prove intent, as set forth in State v. Johns,
301 Or 535,
725 P2d 312 (1986); (2) none of the evidence was admissible
to prove motive; (3) the evidence would be offered only “to
demonstrate that defendant is a bad man and has a propensity to commit the charged act”; and (4) even if the evidence
were admissible as an “exception[ ] to the general rules
against character evidence,” it would be unfairly prejudicial
because it would have “undue emotional impact on the jury,”
would likely “confuse and mislead the jury,” and “could
inflame the jury and cause the jury to render an improper
decision.”
The pretrial hearing on defendant’s motion took
place over two days. During the first day, the state sought
to admit Facebook communications that defendant had
had with people in the Philippines and emails and photographs from defendant’s computer because they contained
evidence of defendant’s sexual conduct with children in the
Philippines and of defendant’s possession of child pornography. The state argued that the evidence was “relevant
and probative that the defendant has a sexual interest in
children and [was] sexually exploiting children for his own
sexual gratification.” Specifically, the state argued that
the evidence was relevant to show motive, purpose, plan,
3
OEC 404(3) provides:
“Evidence of other crimes, wrongs or acts is not admissible to prove the
character of a person in order to show that the person acted in conformity
therewith. It may, however, be admissible for other purposes, such as proof
of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.”
4
OEC 404(4) provides, in part:
“In criminal actions, evidence of other crimes, wrongs or acts by the
defendant is admissible if relevant except as otherwise provided by:
“(a) [OEC 406 to 412] and, to the extent required by the United States
Constitution or the Oregon Constitution, [OEC 403.]”
5
OEC 403 provides:
“Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay or needless
presentation of cumulative evidence.”
662 State v. Rockett
and preparation under OEC 404(3). Alternatively, the state
argued that other-acts evidence was admissible in criminal
cases if relevant, and, thus, that the evidence was admissible
under OEC 404(4). The state acknowledged that the court
would have to conduct OEC 403 balancing and might need
to give cautionary instructions, but it contended that the
evidence was nonetheless admissible. Defendant responded
that the evidence was inadmissible for any purpose under
OEC 404(3) or OEC 404(4) because it was unrelated to any
charged acts and served only to prove that defendant was a
“bad man” and a pedophile.
The court noted that defendant had denied that any
conduct had occurred that would provide the basis for the
charges. Because defendant was not claiming mistake or
inadvertence, the court concluded that the other-acts evidence was not relevant under Johns to prove defendant’s
intent. Further, the court concluded that the other-acts
evidence that was unrelated to the victims of the charged
crimes was inadmissible propensity evidence and not probative of motive, purpose, plan, or preparation. The state
responded to the court’s tentative ruling by submitting additional cases for the court’s review, and the court reserved
ruling to the next day.
Upon reconvening the next day, the court rejected
the state’s arguments for admissibility under OEC 404(3)
and OEC 404(4) because the court considered most of the
other-acts evidence to have no probative value other than to
prove propensity—absent the state establishing a connection to the charges in the case or defendant opening the door
to the admission of the excluded evidence at trial by challenging the import of proven conduct. Thus, the trial court
ruled inadmissible the other-acts evidence of Facebook communications with people in the Philippines and the child
pornography. However, the court ruled that the other-acts
evidence comprised of Facebook communications with A was
relevant and admissible to show defendant’s sexual predisposition toward A.
After those rulings, defendant entered a guilty plea
to the charges in one of the joined cases. Based on defendant’s
conduct related to the hidden camera found in his bathroom,
Cite as 302 Or App 655 (2020) 663
defendant pleaded guilty to one count of attempt to use a
child in a display of sexually explicit conduct, ORS 163.670,
and two counts of invasion of personal privacy, ORS 163.700.
Subsequently, the court ruled that the hidden-camera evidence was no longer directly relevant to the remaining
charged offenses. Thus, unless defendant “opened the door,”
the hidden-camera evidence would not be admissible. The
court ultimately granted defendant’s pretrial motion to
exclude all the other-acts evidence except defendant’s
Facebook communications with A.
B. State’s Case-in-Chief: Trial Court Admits Facebook
Messages and First Two Categories of Hidden-Camera
Evidence
During the state’s case-in-chief, C testified that, in
one of the incidents with defendant, he had followed her into
the shower and tried to have sex with her. He also had taken
pictures of her breasts and “checked her hymen.” During
cross-examination, defense counsel asked C whether defendant had talked to her about her body and health during
the incident. C testified that, “He took a picture of the mole
on my breast and said, ‘I’m saving this for [a] record in case
it turns out to be a little more serious,’ as if it was cancer or
something.”
A also testified at trial, and her recorded CARES
interview was entered into evidence and played for the jury.
In that interview, A stated that defendant had asked her
in their June 2013 Facebook exchange to send him “naked
photos.” The state then played defendant’s recorded interview with Cox and another detective in which he gave
innocent explanations for requesting photographs from A.
Subsequently, the state offered and the court admitted
defendant’s Facebook communications with A. Defendant
made no new objections to the Facebook evidence beyond
those that he had made at the pretrial hearing.
Once defendant’s explanation of the Facebook
messages was entered into evidence, the state raised the
admissibility of the hidden-camera evidence and evidence
that defendant had pleaded guilty to a charge involving the
use of the camera for a sexual purpose. The state argued
that the evidence was relevant to prove that defendant’s
664 State v. Rockett
photography of the mole on C’s breast was sexual in nature
and not for the purpose of monitoring her health, as had
been suggested in defendant’s cross-examination of C. The
state also contended that the evidence was relevant to prove
the sexual purpose behind the Facebook messages with A
that had been admitted.
Defendant objected that the link that the state
was trying to make was too tenuous to make the evidence
more probative than prejudicial. Defendant argued that the
state was trying to “bootstrap inadmissible evidence onto
something that is not a crime that is not charged for purposes of proving intent for yet another act, which we feel is
impermissible.” The court responded that the evidence was
relevant because the hidden camera had captured images
of other children whom defendant had told to shower in
his bathroom and thus was relevant to prove the sexual
purpose behind defendant’s request to A to take a shower
and send photos while she was in the bathroom. When discussing balancing, the court explained that the probative
value of the hidden-camera evidence and defendant’s guilty
plea was “strong” and that defendant had admitted in his
guilty plea the sexual purpose behind his use of the camera. Furthermore, defendant had vigorously attacked A’s
memory and use of marijuana and her ability to remember
events accurately. Thus, the evidence was highly probative
to the central issue whether defendant had a sexual purpose
in his messages with A in which he requested photographs
of her as well as whether he had a sexual purpose in photographing C’s breast.
The court ruled that the state could elicit testimony from Rookhuyzen that he had found a hidden camera in defendant’s bathroom that was connected to a DVR
in defendant’s bedroom and that “defendant has pled guilty
that the camera was placed in the bathroom for the purpose
of capturing sexually explicit images of a child.” Before the
evidence was admitted, the court gave a limiting instruction
to the jury:
“You may consider how [the evidence] bears, if it has any
bearing, on defendant’s explanation regarding the Facebook
Cite as 302 Or App 655 (2020) 665
conversation [with A] that’s contained in Exhibit No. 3 and
for its bearing, if any, regarding [C]’s testimony regarding
the photography of a mole on her breast. And that is the
only purpose for which you may consider it.”
Immediately after the evidence of the hidden camera and
defendant’s guilty plea was entered, the court further
instructed the jury:
“And now I’m going to instruct you that you cannot use that
then to make a decision that that reflects on his character.
You can’t. You can only use it for the purpose [that] I just
told you.”
C. Defendant’s Case-in-Chief: Trial Court Admits Third
Category of Hidden-Camera Evidence
At trial, defendant sought to establish that the police
had conducted an incomplete and thus inadequate investigation. To support his theory, defendant elicited testimony
from Cox that she had not attempted to contact certain witnesses to whom A and B had initially disclosed that defendant had sexually abused them. To rebut that evidence, the
state sought to introduce evidence that there were potential child victims from defendant’s use of the hidden camera
who were part of a different case and investigatory priority,
which had diverted the attention and resources of the police
department. Defendant objected that that evidence was
highly prejudicial, and he offered to stipulate that “there
were valid exigent circumstances pertaining to defendant
that prevented the police from following up with the disclosure witnesses.”
The court ruled the evidence that the state sought
to admit was admissible, given that defendant had “opened
the door” to it, and that the evidence would not cause substantially more prejudice because the jury already knew
that defendant had used a hidden camera and recording
device to capture images of children and had pleaded guilty
to having a sexual purpose in his use of those devices. The
court admitted evidence that identifying potential child victims of defendant’s use of the hidden camera was a significant investigative priority related to a potential FBI investigation and charges. Also, the court admitted evidence that
666 State v. Rockett
not all of the potential victims from defendant’s use of the
hidden camera had been identified when Cox resigned from
the sheriff’s office in August 2014.
After the court allowed the state’s limited cross-examination about potential victims of defendant’s use of
the hidden camera, the court gave the following limiting
instruction:
“Let me be clear, folks. The last little bit of information
came in not to use for any other purpose but to explain
what [Detective Cox] had time to do and didn’t have time
to do. So please apply [it] there and for no other purpose.”
Before closing arguments and jury deliberations,
the court gave the following instruction in its general
instructions to the jury:
“Limiting instruction, [hidden] camera evidence: If you
find the defendant placed a [hidden bathroom] camera in
his residence, you may only consider this evidence for its
bearing, if any, upon defendant’s explanations regarding
the Facebook communication contained in Exhibit 3 and
for its bearing, if any, regarding [C’s] … testimony about
photographing a mole on her breast.
“You may not use this evidence for the purpose of drawing
the inference that because of it the defendant is likely to
have committed the charged acts in this case.”
The court granted defendant’s motion for judgment
of acquittal on Count 1, first-degree unlawful sexual penetration, at the end of the state’s presentation of evidence.
The jury found defendant guilty of the remaining 13 counts
involving A, B, and C. Defendant appeals the judgment of
conviction on those counts.
II. ANALYSIS
On appeal, defendant assigns error to the trial
court’s evidentiary rulings admitting defendant’s Facebook
communications with A and the three categories of hidden-camera evidence. Defendant contends that the trial court
erred in assessing the relevant purposes for admitting the
evidence under OEC 404(3). He also contends that the trial
court failed to properly conduct OEC 403 balancing and
abused its discretion in admitting the evidence.
Cite as 302 Or App 655 (2020) 667
We review a trial court’s determination that other-acts evidence is relevant for nonpropensity or propensity
purposes under OEC 404(3) and OEC 404(4) for legal error.
State v. Baughman, 361 Or 386, 406,
393 P3d 1132 (2017)
(Baughman II). We review for abuse of discretion a trial
court’s determination under OEC 403 as to whether the probative value of the other-acts evidence is substantially outweighed by the danger of unfair prejudice.
Id. “In evaluating a trial court’s discretionary ruling under OEC 403, our
role is to assess whether the court’s decision falls within the
range of legally permissible choices.” State v. Gibson,
299
Or App 582, 589,
451 P3d 259 (2019). Absent a claim that
a trial court has made a legal or factual error in making a
discretionary determination under OEC 403, to determine
whether the court’s evidentiary ruling represents an abuse
of discretion, we examine whether the court “exercise[d] its
discretion to an end not justified by, and clearly against, evidence and reason.” State v. Moles,
295 Or App 606, 620,
435
P3d 782, rev den,
365 Or 194 (2019) (citation and internal
quotation marks omitted).
In his first two assignments of error, defendant
contends that the trial court erred in admitting evidence
of Facebook messages between defendant and A. Defendant
argues that the court admitted the evidence under OEC
404(4) and failed to consider whether the evidence’s probative value was substantially outweighed by the danger of
unfair prejudice under OEC 403. Alternatively, defendant
contends that, if the court did the required balancing, it
failed to consider the factors identified in State v. Mayfield,
302 Or 631, 645,
733 P2d 438 (1987), in performing that
task. Either way, defendant asserts, the court committed
reversible error in admitting the Facebook evidence.
The state responds that defendant’s arguments
under OEC 403 are unpreserved because he did not ask the
court to conduct OEC 403 balancing and has not requested
that we review the court’s ruling for plain error. Further,
even if defendant adequately preserved his objection, the
trial court implicitly conducted OEC 403 balancing. Cf.
State v. Conrad, 280 Or App 325, 331-32,
381 P3d 880 (2016),
rev den,
360 Or 851 (2017) (implying balancing by trial court
668 State v. Rockett
“despite a very thin record encompassing the trial court’s
decision to deny defendant’s OEC 403 objection,” given that
“the court was specifically tasked with resolving defendant’s
motion in limine, which explicitly set out the OEC 403 balancing issue”). Additionally, the state argues that defendant failed to show that the trial court abused its discretion
in admitting the Facebook evidence under OEC 403, and,
finally, even if the trial court erred under OEC 403, any
error was harmless under principles established in State v.
Zavala,
361 Or 377, 385,
393 P3d 230 (2017) (“In the absence
of a meritorious argument that could persuade a trial court
to exclude the challenged evidence, we conclude that the
trial court’s failure to conduct balancing under OEC 403 did
not significantly affect its decision to admit that evidence.
Consequently, we also conclude that there was little likelihood that the trial court’s error affected its judgment of
conviction.”).
In a memorandum of additional authorities filed
after the state filed its answering brief, defendant argues
that his written motion in limine to exclude evidence under
OEC 403 was sufficient to put the court on notice of the need
to balance the probative value of the challenged evidence
against its prejudicial effect. Further, he argues that he was
not required to reraise the issue orally at the pretrial hearing to preserve it for appeal. Moreover, he contends that,
under our decision in State v. Anderson, 282 Or App 24,
386
P3d 154 (2016) (Anderson I), rev’d,
363 Or 392,
423 P3d 43
(2018), the trial court’s OEC 403 record was inadequate and
therefore, we must reverse and remand for a new trial. See
id. at 30 (it is a “ ‘rare case’ in which we conclude that the
trial court satisfied Mayfield despite a ‘very thin record’ ”).
After oral argument in this case, the Supreme
Court reversed our decision in Anderson I, concluding that
the balancing by the trial court under OEC 403 in that case
was adequate under Mayfield. State v. Anderson, 363 Or
392,
423 P3d 43 (2018) (Anderson II). The court explained
that “Mayfield sets out the factors that trial courts should
consider in resolving an OEC 403 objection, but it does not
require that trial courts go through a checklist on the record
in order to avoid a reversal or a remand.”
Id. at 409. Rather,
Cite as
302 Or App 655 (2020) 669
“in assessing the sufficiency of a trial court’s explanation
of its OEC 403 ruling, appellate courts should consider the
trial court’s ruling in light of the arguments that the parties made on the merits of the issues raised by an OEC 403
objection, as well as whether either party asked the court to
provide a more complete explanation of its ruling.”
Id.
In Anderson, the central issue at trial was identification. The state sought to introduce a video recording of the
defendant at his booking at the police station to establish
the similarity in clothing worn by the defendant during the
booking procedure and by a person in photographs taken at
the crime scene. Anderson II, 363 Or at 406. The defendant
objected to the admission of the video of the booking procedure on the ground that the evidence was unfairly prejudicial under OEC 403.
Id. at 407. After hearing the parties’
arguments on the admissibility of the video, the trial court
viewed the video twice.
Id. at 408. It then asked “the state
to stop the video so that the court could examine the clothes
that defendant was wearing in the video—clothes that the
state reminded the court were very similar to the ones
shown in the stills.”
Id. Thereafter, the court admitted the
evidence over the defendant’s objection, stating only that it
was “relevant.” In Anderson I, we concluded that the court’s
statement that the evidence was ‘relevant’ did not establish
that the court [had] balanced the Mayfield factors.
282 Or
App at 28. We explained that while relevancy is a threshold
inquiry to admissibility, “describing evidence as ‘relevant’
does not suggest OEC 403 balancing, because the purpose of
OEC 403 is to determine when relevant evidence should be
excluded.”
Id.
The Supreme Court agreed with us that “in some
cases describing evidence as ‘relevant’ will mean only that
the evidence has a minimal tendency to prove or disprove
an issue in a case.” Anderson II, 363 Or at 408. However,
the court concluded that, in the “context of the parties’
arguments, the trial court’s statement that the video was
‘relevant’ reflects its determination that the clothing was
sufficiently similar to and possessed a sufficient degree of
relevance on the central issue in the case to admit the video
over defendant’s OEC 403 objection.”
Id.
670 State v. Rockett
The court acknowledged that the trial court had not
expressly stated its assessment of the probative value of the
video or of the danger of unfair prejudice to the defendant.
Id. at 408-09. Nor had the trial court expressly balanced
those two concepts.
Id. at 409. “However, the same could be
said about the trial courts’ OEC 403 rulings in [three earlier
cases], all of which this court upheld because we could determine from the record that the trial court had considered and
weighed those factors.”
Id.
Further, the court rejected the state’s contention
that the defendant had failed to preserve his argument that
the trial court’s findings were inadequate. Id. at 410. The
court concluded that the defendant’s failure to request that
the trial court make explicit findings or consider further
argument was not an issue of preservation.
Id. Rather, the
absence of a request for further explanation was a factor
that bore on the sufficiency of the explanation that the trial
court had given of its ruling.
Id.
Turning to the facts here, we first address whether
defendant preserved his argument that the trial court
failed to conduct OEC 403 balancing and failed to apply the
Mayfield factors in its balancing. As we explain, we conclude
that defendant preserved that argument and therefore turn
to whether the trial court conducted the required balancing.
In resolving the balancing questions in light of Anderson II,
we look to the context of the parties’ arguments at the pretrial hearing on defendant’s motion in limine and when the
court admitted the evidence at trial.
During the first of two days of the pretrial hearing on defendant’s motion in limine, the state cited State v.
Blanscet, 230 Or App 363,
315 P3d 924 (2009), and State v.
Millar,
127 Or App 76,
871 P2d 482 (1994), in support of its
argument that evidence of defendant’s Facebook communications with people in the Philippines and evidence found
on defendant’s computer and in emails was relevant and
met the Johns test to prove intent and also the three-part
Blanscet test to prove motive. The state explained the criteria for admissibility under each test, including the court’s
need to conduct OEC 403 balancing. The state went on to
Cite as
302 Or App 655 (2020) 671
argue how the evidence met all the criteria for admissibility
under both tests. The court rejected the state’s arguments
for admissibility under OEC 404(3) theories of motive, purpose, intent, preparation, and plan. The state advanced as
an alternative argument that the evidence was admissible
under OEC 404(4), which it acknowledged would require
OEC 403 balancing and possibly a limiting instruction.
The court ultimately was not persuaded to admit
the evidence under either OEC 404(3) or OEC 404(4), but it
told the parties that it wanted to review the cases cited by
the state and make a final ruling on admissibility the following day. Before recessing, defendant reminded the court
that there were Facebook communications with A that the
state also sought to admit. The court confirmed that it was
aware of the latter communications because they were part
of a search warrant from August 2013, and the court told
defense counsel that he would have to “come up with a creative argument” to persuade the court that the evidence was
not admissible. Defense counsel acknowledged that burden.
When the parties returned for the second day of the
pretrial hearing, the state asked defendant to clarify his
precise objections to the Facebook communications with A.
Defendant first argued that the evidence was not relevant or
admissible and was propensity evidence that did not show
anything other than that defendant “has a specific intent
with this particular victim.” The court responded that evidence of defendant’s interest in a particular victim was
distinct from evidence offered merely to show that defendant had a character for such conduct. The court noted that
grooming behavior was specific to an individual. Defendant
responded that the conduct at issue was “post-conduct”
grooming behavior. Specifically, defendant argued (1) that
the evidence was irrelevant because it involved conduct
occurring two years after the conduct at issue in the last
charged offense involving A; (2) that it did not establish that
defendant had an ongoing sexual relationship with A; and
(3) that future intent did not bear on past intent.
In response, the state cited State v. McKay, 309 Or
305,
787 P2d 479 (1990), and State v. Zybach,
308 Or 96,
775
P2d 318 (1989), as authority for admitting the evidence. In
672 State v. Rockett
McKay, the court held that other-acts evidence involving the
same victim was admissible to “demonstrate the sexual predisposition this defendant had for this particular victim.”
309 Or at 308. In Zybach, the issue was “whether evidence
of encounters with a child victim by an adult defendant
after an alleged rape occurred was admissible.”
308 Or at
98. The Supreme Court held that the Zybach evidence was
admissible on two grounds: (1) “it was relevant to show why
the child had not reported the original sexual assault,” and
(2) the defendant’s statement to the victim approximately
two weeks after the alleged rape “that he wanted to make
love to the girl again constituted an admission that he had
done so before.”
Id. at 100 (emphasis in original). Here, the
trial court agreed with the state that, under Zybach, the
Facebook evidence appeared to be admissible.
Defendant’s counsel said that he understood the
court’s view of Zybach but sought to distinguish Zybach by
focusing on the “ongoing” nature of the relationship between
the defendant and the victim in Zybach and the short length
of time between the incidents in that case. The court rejected
counsel’s analysis of Zybach and ruled that the Facebook
evidence was admissible, observing that it was “very similar” to the evidence that the Zybach court had held to be
relevant and admissible. The court explained that, like
the evidence in Zybach, the Facebook evidence constituted
defendant’s admission of past misconduct. The Facebook
exchanges between A and defendant showed their mutual
acknowledgement of the creation of prior sexually related
photographs of A similar to the new photographs that defendant had asked A to create for him.
Upon hearing the court’s explanation, defense counsel offered no further argument on the matter, stating, “I
understand the court’s ruling.” Defendant did not argue
that the evidence was overly prejudicial under OEC 403 or
that it was being offered only to prove that defendant was a
bad man—as counsel had argued the day before regarding
the other categories of other-acts evidence. Further, when
the Facebook evidence subsequently was offered and admitted at trial, defense counsel stated that he had no objection
to the evidence beyond his “previously-voiced objections.”
Cite as 302 Or App 655 (2020) 673
We conclude that, as in Anderson II, defendant’s
request for OEC 403 balancing in his motion in limine preserved his argument on appeal. We further conclude, for the
reasons explained below, that the trial court’s OEC 403 balancing was adequate under Anderson II.
To begin, the trial court was aware of its need to
conduct balancing under OEC 403, not only because of
defendant’s request in his motion in limine but also because
the state had reminded the court at the pretrial hearing of
its need to do that. There is nothing in the record to indicate
that the trial court rejected or ignored that requirement
before admitting the evidence. Further, despite defendant’s
argument otherwise, the record amply establishes that
the court and parties agreed that the Facebook exchange
between defendant and A addressed a central issue in the
case, viz., whether defendant had previously sought sexually
related photographs from A, and therefore had high probative value. Indeed, after the evidence was admitted at trial,
defense counsel told the court that he might request a limiting instruction because the Facebook messages with A were
some of the “strongest” evidence that the state had offered.
Ultimately, the trial court’s lack of express balancing under Mayfield after it determined that the Facebook
evidence was admissible under Zybach was not indicative
of a failure to balance but, rather, was indicative of defendant’s failure to offer any meritorious argument as to why
the highly probative evidence should be excluded despite its
relevance under OEC 404(3).
In this case, similar to the trial court’s conclusion
that the evidence was “relevant” in Anderson II, the court’s
ultimate ruling that the evidence was “admissible” was
shorthand for its belief that the evidence was not only relevant under Zybach but also that the probative value substantially outweighed any risk of unfair prejudice to defendant under OEC 403. To conclude, given defendant’s lack of
request for further explanation from the court, the court’s
OEC 403 balancing was adequate despite lack of an express
statement by the court that it had balanced the probative
value of the evidence against the risk of unfair prejudice to
defendant.
674 State v. Rockett
The next question is whether, under Mayfield, the
trial court acted within its discretion when it admitted
the evidence over defendant’s OEC 403 objection.6 When a
trial court is presented with a request to exclude evidence
as unfairly prejudicial under OEC 403, the court should
(1) consider the quantum of probative value of the evidence and consider the weight or strength of the evidence;
(2) determine how prejudicial the evidence is and the extent
to which the evidence may distract the jury from the central question whether the defendant committed the charged
crime; (3) balance the prosecution’s need for the evidence
against the countervailing danger of unfair prejudice; and
(4) consider whether to admit all the proponent’s evidence,
none, or some portion of it. Anderson II at 409 (clarifying
that the Mayfield factors are not a checklist through which
a court must work).
The quantum of probative value of evidence refers
to “the strength of the relationship between the proffered
evidence and the proposition sought to be proved.” State v.
Sewell, 257 Or App 462, 469,
307 P3d 464, rev den,
354 Or
389 (2013) (citations and internal quotation marks omitted).
In determining whether evidence is unfairly prejudicial, the
critical inquiry “is whether the evidence improperly appeals
to the preferences of the trier of fact for reasons that are
unrelated to the power of the evidence to establish a material fact.”
Id.
Here, the evidence was probative of a central issue
in the case—whether defendant had previously sought sexually related photographs from A. Also, the evidence was
unlikely to distract the jury from the central question, given
that the evidence went directly to defendant’s intent and
past relationship with A. Additionally, the state’s need for
the evidence was significant, given that its case rested on
the credibility of the victims’ testimony against defendant.
6
On appeal, defendant claims that the court admitted the evidence under
OEC 404(4) for propensity purposes. However, the court concluded that, under
Zybach, the evidence was admissible for a nonpropensity purpose under OEC
404(3). Unlike defendant’s third and fourth assignments of error, defendant does
not contend in this assignment that the evidence was irrelevant. Rather, defendant’s argument is that the court did not conduct balancing and, if it did, that it
did not apply the factors identified in Mayfield.
Cite as 302 Or App 655 (2020) 675
Further, although prejudicial, the evidence was less inflammatory than much of the other evidence of sexual misconduct by defendant. Finally, given that the evidence was
defendant’s own admission in his Facebook communications, the evidence was one of the strongest pieces of evidence to resolve whether defendant had a sexual purpose in
his interactions with A.
By contrast, defendant’s argument in his motion
in limine was generically focused on all eleven categories of
other-acts evidence as “mere propensity evidence” that was
inflammatory, unduly confusing, and likely to mislead the
jury. However, defendant did not make any specific arguments about why the probative value of the Facebook evidence involving A was outweighed by any specific prejudice
of that evidence to defendant. Indeed, once the trial court
ruled that the evidence was admissible under Zybach, defendant made no further argument as to the prejudice that he
would suffer from it.
On appeal, defendant expands on his cursory arguments from trial. First, defendant notes that the messages
were the primary evidence that did not come from A, B,
and C or their interviewers. Instead, “the messages were
defendant’s words from defendant’s Facebook account” and
“formed a principal topic in the police officers’ interrogation of defendant.” For those reasons, defendant argues that
it would be difficult for the jury to separate the relevant
purpose—to explain A’s delayed report—from the impermissible inference that defendant is a “predator” deserving
punishment. Second, he argues that there was a likely risk
that the jury would abdicate its duty to look at the evidence
of each charge and instead “convict defendant based on his
desire to solicit naked photographs from A.”
Defendant is mistaken that the trial court admitted the Facebook evidence solely to explain A’s delayed
reporting. In fact, the court admitted the evidence to show
defendant’s sexual predisposition toward A, to explain A’s
delayed reporting, and as an admission by defendant of past
sexually related conduct. Because of defendant’s mistaken
assumption about the purposes for which the court admitted
the evidence, he failed to address the probative value of the
676 State v. Rockett
evidence and how the prejudicial effect to him substantially
outweighed that value.
Ultimately, the evidence was not misleading, cumulative, or irrelevant. It was the opposite: The evidence was
central to the state’s theory, relevant for multiple purposes,
not cumulative, and unique as defendant’s own admission.
The court did not abuse its discretion under OEC 403 in
admitting the Facebook evidence.
Next, in his third, fourth and fifth assignments
of error, defendant combines his argument that the trial
court erred when it admitted the three categories of hidden-camera evidence. Defendant contends that the first two categories of that evidence were irrelevant for the purposes
for which the court admitted the evidence, and, therefore,
under Baughman, we must reverse and remand for a new
trial. State v. Baughman, 276 Or App 754,
369 P3d 423
(2016) (Baughman I), aff’d,
361 Or 386,
393 P3d 1132 (2017).
Alternatively, defendant contends that all three categories
of evidence, as a whole, were substantially more prejudicial
than probative. Thus, the trial court abused its discretion in
admitting all three categories of hidden-camera evidence.
As we explain below, the court did not err in admitting any
of the hidden-camera evidence.
After briefing and oral argument in this case, the
Supreme Court decided Baughman II, which affirmed our
decision in Baughman I but clarified the two-step analysis
to be used “when a party objects to the admission of other
acts evidence.” Baughman II, 361 Or at 404. First, a trial
court should determine whether the proffered evidence
is relevant for one or more nonpropensity purposes under
OEC 404(3). Id. “If it is, then the court should determine,
at step two, whether the probative value of that evidence
is substantially outweighed by the danger of unfair prejudice under OEC 403.” Id. “If the trial court determines that
the evidence is relevant for a nonpropensity purpose under
OEC 404(3) and admissible under OEC 403, then it need not
determine whether the evidence also is admissible under
OEC 404(4) and OEC 403.” Id.
If a trial court determines that the evidence is not
relevant under OEC 404(3), then it must determine whether
Cite as 302 Or App 655 (2020) 677
the evidence is otherwise relevant under OEC 404(4) and
admissible under OEC 403. Id. at 404-05. The decision at
step one about whether evidence is relevant for a nonpropensity purpose or is relevant only for a propensity purpose
will have a significant effect on whether the court admits
the evidence at step two when the court conducts OEC 403
balancing. Id. at 405.
When evidence is relevant under OEC 404(3) for
a nonpropensity purpose, the evidence generally will be
admissible as long as the particular facts of the case do not
demonstrate a risk of unfair prejudice that substantially outweighs the probative value of the evidence. State v. Williams,
357 Or 1, 19,
346 P3d 455 (2015). However, when other-acts
evidence is offered and admitted under OEC 404(4) and only
to prove defendant’s character, it generally will be inadmissible because the low probative value of the evidence will be
substantially outweighed by the prejudice to the defendant.
Id. at 20. Ultimately, the court concluded in Baughman II
that an error in assessing the purposes for admitting evidence significantly affects the trial court’s decision under
OEC 403 and requires reversal and remand for the trial
court to determine anew whether the other-acts evidence
was relevant and whether its probative value substantially
outweighed the danger of unfair prejudice. 361 Or at 410-11.
Turning to the facts here, the court admitted the
three categories of hidden-camera evidence at different
stages in the trial. The first two categories of hidden-camera
evidence were admitted in the state’s case-in-chief. The court
admitted evidence that the police had discovered a hidden
camera in defendant’s shower that was attached to a recording device in defendant’s bedroom and evidence that defendant had pleaded guilty to allegations that he had placed the
hidden camera in the bathroom for the purpose of capturing
sexually related images of a child. The state offered the evidence as relevant to prove the use of a child in a display of
sexually explicit conduct (Counts 4 and 11-12) involving A
and C. Specifically, that state offered the evidence to rebut
defendant’s claims that his Facebook messages with A were
“innocent” and that his reasons for requesting new photographs of A were nonsexual. The evidence was also offered to
rebut defendant’s claim that his photographing of C’s breast
678 State v. Rockett
was health related and nonsexual. The trial court admitted
the two categories of hidden-camera evidence for two purposes: (1) to prove that defendant had acted with a sexual
purpose when he sent Facebook messages to A requesting
new photographs of her and (2) to prove that defendant had
acted with a sexual purpose when he photographed C’s mole
on her breast.
On appeal, defendant contends that the evidence
was irrelevant for either of those purposes and, therefore,
that the trial court improperly assessed the probative value
of the evidence under OEC 403. First, defendant argues
that whether he had a sexual purpose in requesting in his
Facebook messages with A that A provide him with new photographs of her was irrelevant as a matter of law because he
was not charged with a crime related to that request in the
Facebook messages and, in his view, the Facebook messages
were admitted only to explain the reason for A’s delayed
disclosure of sexual abuse by defendant. Thus, defendant
argues that the fact that he may have acted with a sexual
purpose when he installed the hidden camera in his shower
does not explain A’s reasons for failing to immediately report
the abuse by defendant. Defendant contends, therefore, that,
because one of the trial court’s bases for admitting the hidden-camera evidence is flawed, the trial court’s OEC 403 balancing was flawed.
Defendant is mistaken that the trial court admitted the Facebook messages with A to explain only her
delayed disclosure of abuse. Because of that mistake, defendant fails to address the other grounds on which the trial
court admitted evidence of defendant’s Facebook messages
with A. As explained earlier, the trial court concluded that
that evidence was admissible under OEC 404(3) as evidence
of defendant’s sexual predisposition toward A and that he
had previously requested sexually related photographs of A.
Given our earlier conclusion that the trial court did not err
in admitting the Facebook evidence on the bases on which it
admitted that evidence, defendant’s first argument fails.
In his second argument, defendant contends that
whether he acted with a sexual purpose when he photographed the mole on C’s breast was irrelevant to proving the
Cite as 302 Or App 655 (2020) 679
crime of use of a child in a display of sexually explicit conduct under ORS 163.670. To obtain a conviction under ORS
163.670, the state must prove that “the photographs were
taken with the intention of arousing the sexual desire of
people who view them.” State v. Mross,
274 Or App 302, 306,
360 P3d 670, rev den,
358 Or 550 (2015). Therefore, defendant argues that the only relevant question was whether
he took the photographs with the intention of arousing the
sexual desire of a viewer of the photographs, not whether
he personally had a sexual purpose when he installed the
camera to produce the photographs. Defendant’s argument
is unpreserved, and he does not request plain-error review.
Hence, we decline to address his unpreserved argument.
Defendant does not raise any other argument against
the trial court’s determination that the first two categories
of hidden-camera evidence were relevant for the purposes
for which the court admitted them. We conclude that the
trial court did not err in admitting the first two categories
of hidden-camera evidence as relevant to prove defendant’s
sexual purpose in seeking the photographs from A that he
did in his Facebook messages with A and his photographing
of C’s breast.
Next, for the reasons that follow, we conclude that
the record shows that the court properly exercised its discretion when it admitted the evidence. Here, the evidence was
highly probative of whether defendant had a sexual purpose
in committing the charged acts. The court explicitly stated
that the prejudice to defendant did not substantially outweigh the probative value of the evidence “in light of the vigorous attacks on the memory of the children and—and the
innocent explanations that were tendered” by defendant.
Further, the trial court gave limiting instructions before
and after the first two categories of hidden-camera evidence
were offered and at the close of the trial. See State v. Brown,
272 Or App 424, 432-33,
355 P3d 216, rev den,
358 Or 145
(2015) (explaining that danger of prejudice from “other acts”
evidence can be mitigated by the use of proper jury instructions). Accordingly, the court did not err in making a factual or legal determination under OEC 403. Further, the
court’s decision was within the range of legally permissible
680 State v. Rockett
action, and, therefore, the court did not abuse its discretion in admitting the first two categories of hidden-camera
evidence.
We turn to defendant’s final evidentiary argument,
viz., that the trial court erred in admitting the third category
of hidden-camera evidence in response to testimony elicited
by defendant during his cross-examination of Cox. The state
sought to introduce evidence that defendant’s use of the hidden camera was the subject of a potential FBI investigation
involving potential child victims and that identification of
those victims was a significant investigative priority that
diverted resources away from the investigation in A, B,
and C’s case. The state also sought to admit evidence that,
by the time that Cox had left the sheriff’s office in August
2014, not all of the potential victims from defendant’s use of
the hidden camera had been identified. Defendant objected
to admission of that evidence and offered to stipulate that
“there were valid exigent circumstances pertaining to
[defendant] that prevented the police from following up with
the disclosure witnesses.” The state responded that defendant’s proffered stipulation did not adequately address the
state’s need to explain the reasons for the investigative
deficiencies.
In the court’s discussion of its OEC 403 balancing,
the court noted that defendant had repeatedly attacked
Cox and the police department at trial for their investigation’s deficiencies and the fact that they had not followed
up on interviewing certain witnesses. Given the nature and
breadth of the attack, defendant had opened the door for the
state to explain the reasons for the investigative deficiencies.
Further, the court concluded that, given that evidence of the
hidden camera and defendant’s guilty plea had already been
admitted in the state’s case-in-chief, the prejudice to defendant from the additional hidden-camera evidence did not
substantially outweigh the probative value of the evidence.
Thus, the court ruled that that evidence was admissible for
the narrow purpose of establishing what Cox had had time
to do in the investigation.
On appeal, defendant contends that his proposed
stipulation divested the state’s evidence of “much of its
Cite as 302 Or App 655 (2020) 681
probative value” and cites State v. Zimmerlee,
261 Or 49,
492 P2d 795 (1972), in support of his argument. See
id. at
54 (“Once defendant offered to stipulate that he had possession of the gun subsequent to the alleged robbery, the
only purpose that would be served by permitting the state to
prove the subsequent crime would be to show that because
defendant had committed another crime he was a bad man
and therefore probably committed the crime for which he
was charged.”). Defendant makes no further argument and
fails to explain why Zimmerlee would require the trial court
to admit defendant’s proposed stipulation over the state’s
requested offer of proof.
First, unlike the defendant’s proposed stipulation
in Zimmerlee, defendant’s stipulation here did not supplant
the probative value of the state’s evidence. Specifically, the
state sought to rebut defendant’s repeated attacks on the
investigative deficiencies, which required a more developed
explanation beyond defendant’s stipulation. Second, the
prejudicial effect of the state’s evidence in Zimmerlee was
significant, and the stipulation prevented other-acts evidence from being admitted altogether. In contrast here, the
jury already had information that defendant had pleaded
guilty to charges based on images from the hidden camera;
thus, the jury was already aware of defendant’s use of the
hidden camera. Given those facts, the state was not required
to accept defendant’s stipulation.
Finally, defendant argues that all three categories
of hidden-camera evidence combined to create substantially
more prejudice than each category individually and thereby
outweighed the probative value of the evidence. However, the
three categories of hidden-camera evidence were not admitted at the same time. Rather, the first two categories were
admitted in the state’s case-in-chief. And, as previously discussed, the court did not abuse its discretion in admitting
that evidence. At the time of the admission of the third category of hidden-camera evidence, the prejudice to defendant
from the hidden-camera evidence, considered in the light of
all of the evidence admitted to that point, did not substantially outweigh the probative value of the evidence to the
state. Further, the court gave a limiting instruction before
682 State v. Rockett
admission of the third category of hidden-camera evidence,
as it had for the other hidden-camera evidence, to limit the
jury’s consideration of the evidence to the narrow purpose
for which the court admitted it.
In summary, the trial court did not err in determining that the three categories of evidence related to the hidden cameras were relevant under OEC 404(3) and admissible under OEC 403.
In his seventh through ninth assignments of error,
defendant contends that the trial court erred by imposing
compensatory fines of $34,940.82 in favor of B and C and a
compensatory fine of $69,881.63 in favor of A. Specifically,
at trial, defendant objected to the amount of the requested
compensatory fines. Whether a trial court erred in imposing
a compensatory fine is a legal question. State v. Garlitz, 287
Or App 372, 374,
404 P3d 1090 (2017).
At sentencing, the state and the victims’ attorneys
for A and B requested restitution and compensatory fines for
A and B. They filed memoranda in support of their requests
that outlined the legal and factual bases for the court to
impose the amounts requested: $10,000 in restitution and
$140,000 in compensatory fines.
At the hearing on restitution, compensatory fines,
and security reinstatement and remission, A and B asked
the court to award restitution on their behalf for their
CARES medical evaluations and to order defendant to pay
compensatory fines to them totaling $140,000.7 In order to
find defendant to be able to pay the compensatory fines, A
and B asked the court to reinstate the remaining $150,000
in security posted by defendant and to apply the reinstated
security to the requested restitution and compensatory
fines.
Defendant stipulated to restitution awards of
$10,000, which included restitution for the cost of the
CARES examinations of A and B. However, he objected
to the amount of the compensatory fines requested by the
victims:
7
Only A and B were represented by counsel. C did not appear at the sentencing hearing and did not request any restitution or compensatory-fine award.
Cite as 302 Or App 655 (2020) 683
“[DEFENSE COUNSEL]: … [W]e do agree with a restitution amount of approximately $10,000 that’s set forth on
Exhibits A. We did stipulate to that.
“I—I disagree with [A’s attorney], in stipulating to that,
that we essentially stipulated to the Court’s—or acquiesce
to the Court’s ability to impose a compensatory fine. Here’s
our problem with what the complainant witnesses [A and
B] are asking for in this case, Your Honor.
“Is—they are just essentially taking a stab at a blank number in the air and asking the Court to assume that they’re
going to have that much in damages in the future, which
would be $70,000, approximately, per victim in this case.
“I don’t think there’s been any evidence put forward that—
from which the Court could assume that, at some point in
time, their damages will be that amount.
“Certainly, they don’t have restitution in that amount.
And I don’t think the compensatory fine in that amount is
proper.”
(Emphasis added.)
Defense counsel went on to discuss how the court
should dispose of the forfeited money and amounts payable
for legal fees. Later, when given another opportunity to
make any further argument before the court ruled, defense
counsel stated that
“And I’d just like to reiterate that it’s our position that the
victims in this case have not put forth sufficient proof as to
what their damages are or could be moving forward for the
Court to award a compensatory fine in the amount being
requested. And that’s all I have, Your Honor.”
(Emphasis added.)
Thereafter, the court ruled from the bench and
awarded restitution in the amount stipulated by the parties
and ordered that that amount be deducted from defendant’s
forfeited bail. The court then ordered that “50 percent of the
remaining funds be placed as a compensatory fine to [A],
and that 25 percent should be compensatory fines that are
assigned to [B] and [C].” The court explained that the “abuse
[A] suffered was substantially greater than the other two.
It doesn’t lessen or make light of the abuse that [C] and [B]
684 State v. Rockett
suffered, but [A’s] was greater and so it reflects that it will
take more to address that.” Further, the court opined that
“just as the other two, it’s taken some time for this to—
to trickle to the surface. [C] is no different in that regard.
And it is absolutely expected that she will have to deal with
these issues, front and [center]. And she’s dealing with it to
a certain degree, but there’s absolutely—compensatory fine
is warranted on her behalf as well.”
The trial court also found that,
“given the jury’s findings and the convictions, … each girl
now has an absolute[ly] viable civil suit that is available
to them against [defendant]. And each, should they [bring]
it, would be able to claim damages at levels that utterly
dwarf the amounts that are available as a compensatory
fine. I do not find that the amount of compensatory fine
that I ordered will do an adequate job to rectify the wrong
that is done, only that it gives a place to start.”
After the court’s ruling, the court proceeded to
instruct the parties on how they should calculate the final
money award when they presented their proposed final
judgment. Next, when asked by A’s counsel to clarify the
ruling ordering the compensatory fines to the victims, the
trial court agreed that it was imposing the statutory fine
and ordering that fine to be paid to the victims as a compensatory fine because there was a factual predicate for
it. The court further explained, “I would also find, even if
that weren’t the case, that there is clear evidence that [A, B,
and C] are suffering economic harm because [ ] two of them
are actively involved in counseling and have been. And I’m
absolutely convinced that [C] is in the same circumstances.”
Subsequently, the sentencing judgment contained a money
award that included the stipulated restitution, as well as
compensatory fines of $69,881.63 to A, $34,940.82 to B, and
$34,940.82 to C.
On appeal, defendant contends that the trial court
erred by imposing the compensatory fines that it did.
Specifically, defendant argues that the state failed to establish that the victims necessarily incurred the amounts of
the compensatory fines awarded in this case for future counseling costs because the record did not establish that any of
Cite as 302 Or App 655 (2020) 685
the victims had scheduled counseling sessions or the cost of
those sessions.
The state responds that defendant’s argument at
sentencing was not that the victims had failed to submit sufficient evidence of damages to permit a compensatory fine in
some amount. Rather, defendant challenged the sufficiency
of evidence to warrant a compensatory fine of the requested
amount of $140,000. The state contends that, insofar as
defendant is now making the former argument, that argument is unpreserved and should not be considered. And to
the extent that he is making the latter argument—the one
that he presented below—we should reject that argument
because a compensatory fine does not require proof of objectively verifiable monetary losses in the amount of the fine.
Additionally, defendant does not request that we review for
plain error.
As we explain below, we agree with the state that
defendant’s argument at trial was focused solely on the
amount of the compensatory fines. Defendant did not dispute the victims’ attorney’s contention that the restitution
stipulation provided the factual predicate for the trial court
to award compensatory fines to A and B. Further, when the
court made multiple findings regarding the victims’ ability
to recover damages against defendant in a civil action and
that they had incurred economic damages—defendant did
not contest that. Ultimately, defendant did not contend that
the victims had failed to prove that they had suffered any
economic damages as the result of his criminal conduct and
that, thus, there was no basis for the imposition of a compensatory fine. Rather, he challenged only the sufficiency of
their proof to support a compensatory fine in the requested
amount related to future, indeterminate costs of counseling.
We conclude that defendant’s argument that the state
failed to offer any evidence that the victims had objectively
verifiable monetary losses that had been incurred by them
is unpreserved and is qualitatively different from the arguments that he made below, and we decline to address it.
Miller v. C.C. Meisel Co., Inc., 183 Or App 148, 172,
51 P3d
650 (2002) (given the requirements in ORAP 5.45(4)(a) and
the policies underlying the rule, the court declined to review
686 State v. Rockett
issues on appeal that were qualitatively different from the
issues raised below).
We turn to defendant’s argument at trial that a
compensatory fine requires proof of economic damages in
the amount of the fine. Under ORS 161.625, a sentencing
court is authorized to impose a fine against a defendant
as a penalty for the commission of most felonies, including
the felonies for which defendant was convicted. See Garlitz,
287 Or App at 376. Under ORS 137.101, a sentencing court
is authorized “to direct that some or all of that fine money
under ORS 161.625 be used to compensate the victims of
the defendant’s crimes if those victims have suffered damages for which they would have a civil action against the
defendant as a result of those crimes.”
Id. (citation omitted).
Nothing in the statute ties “the amount of the compensatory fine to the amount of economic damages that a victim
has suffered.” State v. Grismore,
283 Or App 71, 76,
388 P3d
1144 (2016).
Here, the court was authorized to impose a statutory fine up to the amount authorized by ORS 161.625 for
defendant’s 13 felony convictions. Because we have rejected
as unpreserved defendant’s argument that the state failed
to establish the factual predicate for the court to award compensatory fines in some amount to A, B, and C, it follows that
the trial court had authority to order compensatory fines
to them in any amount less than or equal to the amount
of the applicable statutory fines. Thus, under ORS 137.101,
the court was authorized “to direct that some or all of those
monies be paid to the victims of defendant’s offenses without
determining the precise value of damages caused by defendant’s conduct.” Garlitz, 287 Or App at 378. We conclude that
the trial court did not err in imposing compensatory fines in
the amounts awarded to A, B, and C.
Affirmed.
