205
Argued and submitted October 28, 2019; in case numbers 15CR56120 and
15CR55011, reversed and remanded February 10, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
NIKOLAY AVDEYEV,
Defendant-Appellant.
Marion County Circuit Court
15CR56120, 15CR55011;
A165643 (Control), A165647
482 P3d 115
In this consolidated case, defendant appeals from judgments of conviction for
multiple counts of rape and sexual abuse against three complaining witnesses.
On all but two counts—which were two sexual abuse counts against one of the
complaining witnesses—the jury returned a nonunanimous verdict. The state
concedes that defendant is entitled to reversal on the nonunanimous convictions
under Ramos v. Louisiana, 590 US ___,
140 S Ct 1390,
206 L Ed 2d 583 (2020).
Defendant also argues that the two convictions by unanimous verdict should
be reversed based on several arguments. In particular, he argues that the trial
court erred in denying his pretrial motion to prevent the prosecutor or witnesses
from referring to the complaining witnesses as “victims.” Held: State concession
is accepted, and the convictions based on nonunanimous verdicts are reversed
under Ramos. As for the remaining two convictions by unanimous verdict, the
trial court erred when it denied defendant’s motion with respect to witnesses
referring to complaining witnesses as “victims,” because allowing such references is impermissible vouching. That error was not harmless with respect to
those two convictions.
In case numbers 15CR56120 and 15CR55011, reversed and remanded.
Donald D. Abar, Judge.
Jason E. Thompson argued the cause for appellant. Also
on the brief was Ferder Casebeer French Thompson & Stern,
LLP.
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
James, Judge.
206 State v. Avdeyev
ORTEGA, P. J.
In case numbers 15CR56120 and 15CR55011, reversed
and remanded.
Cite as 309 Or App 205 (2021) 207
ORTEGA, P. J.
In this consolidated case, defendant appeals from a
judgment of conviction in case number 15CR56120 for first-degree rape and from a judgment of conviction in case number 15CR55011 for one count of first-degree rape (Count 1),
one count of second-degree rape (Count 5),1 11 counts of first-degree sexual abuse (Counts 9 to 18, and 20), and one count
of second-degree unlawful sexual penetration (Count 19).2
On all but two counts—Counts 9 and 11 in case number
15CR55011—the jury returned a nonunanimous verdict. On
appeal, defendant argues that the trial court erred in giving
a nonunanimous jury instruction and that all of his convictions should be reversed as a result. The state concedes
that defendant is entitled to reversal on the nonunanimous
counts under Ramos v. Louisiana, 590 US ___,
140 S Ct
1390,
206 L Ed 2d 583 (2020). We agree, accept the concession, and reverse and remand the convictions that are based
on nonunanimous verdicts. As for the remaining two convictions by unanimous verdict, we conclude that any error in
giving the nonunanimous jury instruction was harmless as
to those two convictions. State v. Flores Ramos,
367 Or 292,
478 P3d 515 (2020).
Defendant asserts several additional assignments
of error on appeal that apply to the two remaining convictions. In his seventh assignment of error, defendant challenges the trial court’s denial of his pretrial motion to
prevent the prosecutor or witnesses from referring to the
complaining witnesses as “victims.” Based on the Supreme
Court’s decision in State v. Sperou, 365 Or 121,
442 P3d
581 (2019), we conclude that the court erred when it denied
defendant’s motion with respect to witnesses, because allowing such references is impermissible vouching. We further
conclude that the error in this case was not harmless with
respect to Counts 9 and 11 and, as a result, we also reverse
1
By nonunanimous verdict, the jury also found defendant guilty of one count
of second-degree rape (Count 6), which the court merged with the guilty verdict
on Count 1, resulting in a single conviction for first-degree rape.
2
The jury, by nonunanimous vote, also found defendant guilty of Counts 2
and 7. The trial court later acquitted defendant of those counts on defendant’s
post-verdict motion, because there was insufficient evidence at trial to support
those charges.
208 State v. Avdeyev
and remand those remaining two convictions. That disposition obviates the need for us to address any of defendant’s
remaining assignments of error.
The background facts relevant to our disposition
are undisputed. In 2015, defendant was charged with one
count of rape of his wife that occurred in 2009 (case number
15CR56120), and with multiple counts of rape and sexual
abuse of his niece SD that occurred between 1999 and 2002,
and one count of sexual abuse of his niece IG that occurred
between 2000 and 2001 (case number 15CR55011). At the
time of the alleged conduct both SD and IG were under
14 years old, but at the time the charges were brought, they
were both adults. There was no physical evidence to corroborate the charged crimes. Defendant did make statements
to police that he had touched SD’s breasts, but he asserted
that it happened only because SD would come up to him
and press her body against him or take his hand and put it
on her. Defendant denied any other physical touching and
denied any wrongdoing. As to one count of sexual abuse of
SD (Count 12), a witness testified that she saw the touching,
but there were no corroborating witnesses as to Counts 9 or
11, or any other charged count.
Defendant’s defense theory at trial was that, when
he and his wife filed for divorce and began fighting over custody of their minor daughter, members of their extended
family supported either him or his wife. He asserted that
his wife and nieces were making false accusations or, in the
case of his nieces, were manipulated to make historically
inaccurate accusations against him to assist his wife in
the divorce proceedings. To support that theory, defendant
argued that the testimony of the complaining witnesses
was unreliable and pointed out inconsistencies in that testimony. Defendant’s theory further relied on the outcomedeterminative nature of the investigation conducted by
the police, including that one of the detectives in the case,
Avetisyan, was related by marriage to defendant’s wife’s
family.
Before trial, defendant brought motions to prohibit the prosecutor and witnesses from referring to the
complaining witnesses as “victim” or referring to their
Cite as 309 Or App 205 (2021) 209
statements as “disclosures.” He argued that any such references would, under the circumstances of the case, undermine the presumption of innocence for defendant and constitute improper vouching for the credibility of his accusers.
The state responded that, because the state is seeking to
prove that defendant victimized the complaining witnesses,
it should be allowed to call those witnesses a victim at trial.
The trial court denied defendant’s motion, ordering that
“the state may use the words ‘victim’ and ‘disclosure’ during
opening and closing statements” and further “reserve[d] it’s
ruling on the use of the word ‘victim’ by witnesses during
trial.”
With respect to referring to complaining witnesses
as “victims” at trial, the prosecutor made multiple such
references in closing argument. There were also several
instances when a complaining witness was referred to as a
victim during witness testimony—either by the prosecutor
in her question put to the witness or by the witness themself. We discuss those instances more particularly in our
prejudice analysis.
Because, as explained above, we reverse and remand
all of defendant’s convictions except Counts 9 and 11 under
Ramos, we discuss defendant’s other assignment of error
only as it relates to Counts 9 and 11.
On appeal, among other things, defendant assigns
error to the trial court’s denial of his pretrial motion to prohibit the prosecutor and witnesses from referring to the
complaining witnesses as “victims” at trial. Our resolution
of that assignment is controlled by the Supreme Court’s
decision in Sperou. In that case, the defendant was charged
with unlawful sexual penetration of SC. SC was expected
to testify at trial, as well as other witnesses who would also
testify to having been sexually abused by the defendant.
The defendant denied all wrongdoing, asserting that the
accusations were lies or false memories. Before trial, the
defendant brought a motion to prohibit the prosecutor or
witnesses from referring to those complaining witnesses as
victims. The trial court denied the motion, and the prosecutor referred to those witnesses as victims throughout trial,
and two investigating detectives and another witness also
210 State v. Avdeyev
referred to the complaining witnesses as victims in their
testimony. Sperou, 365 Or at 125-27.
In addressing the use of “victim” at trial to describe
a complaining witness, the court stated:
“In short, we agree with defendant that, under our
reasoning in [State v. ]Lupoli, [348 Or 346,
234 P3d 117
(2010), ]the use of the term ‘victim’ to refer to the complaining witness or other witnesses, in circumstances where
the accusers’ own testimony is the only evidence that the
alleged criminal conduct occurred, conveys the speaker’s
belief that the accusers are credible.”
Sperou,
365 Or at 132. The court further stated:
“We also agree with defendant’s contention that, where
a defendant denies that any crime occurred, references to
the complaining witness as a ‘victim’ may undermine the
presumption of defendant’s innocence because it assumes
defendant’s guilt, a fact that is necessarily not proved until
the jury finds the defendant guilty.”
Id. at 133.
In applying those conclusions, the court drew a distinction between the prosecutor referring to a complaining
witness as a victim and a witness doing so. And, when, as
here, the defendant brings up the issue in a pretrial motion
to prohibit all such references, the court concluded that, “[i]n
light of a prosecutor’s dual responsibilities to refrain from
inflammatory remarks and personal commentary, on the
one hand, but to be an advocate for the state’s cause, on the
other, it is difficult to state a categorical rule regarding a
prosecutor’s use of the term ‘victim’ to describe a complaining witness where victimhood is disputed.” Id. at 135. As
such, the propriety of a prosecutor’s use of the term “victim”
necessarily depends on the context, and if, in context, the
comment is inappropriate, the trial court has discretion to
fashion an appropriate remedy, “subject to the defendant’s
right to a fair trial.”
Id. at 136. In Sperou, because the
defendant’s pretrial motion did not attempt to distinguish
between appropriate and inappropriate prosecutorial references to “victim,” the court concluded that the trial court
acted within its discretion to deny the defendant’s pretrial
motion with respect to the prosecutor.
Cite as
309 Or App 205 (2021) 211
The court came to a different conclusion with regard
to witnesses “where the factual question of an accuser’s victimhood turns on the credibility of that accuser’s claims.”
Id. at 138-39. In those circumstances, use of the word “victim” by a witness amounts to vouching and is categorically
inadmissible.
Id. at 139. Thus, the court concluded that it
was legal error for the trial court to permit that testimony,
and, because it was apparent that it was error at the time
of the pretrial motion, the defendant was not required to
renew his objection to witness vouching during trial.
Id.
Applying Sperou to this case, we conclude that the
trial court did not err when it ruled that “the state may use
the words ‘victim’ and ‘disclosure’ during opening and closing statements.” However, it was error for the trial court to
deny defendant’s pretrial motion with respect to witnesses’
use of the word “victim” to refer to complaining witnesses.
Although the trial court nominally reserved its ruling as
to witness testimony, because it was equally apparent at
the pretrial stage as it would have been during trial that
witness use of “victim” to refer to the complaining witness
would be impermissible vouching, the trial court committed
legal error when it failed to grant defendant’s motion as to
witnesses.
To determine if that error warrants reversal, we
must determine whether that error had more than a little
likelihood to affect the jury’s verdict. State v. Davis, 336
Or 19, 32,
77 P3d 1111 (2003). In making that assessment,
we consider the nature of the evidence in the context of the
trial as a whole.
Id. at 33-34. Generally, witness vouching is
prejudicial. See Sperou,
365 Or at 140 (“In general, witness
vouching in Oregon is considered prejudicial, so much so
in fact that it sometimes requires intervention by the trial
court even when parties fail to object to it.”). But see State
v. McConnell,
308 Or App 29, 36,
479 P3d 1082 (2020) (one
witness’s one-time use of “victim” to describe a complaining
witness was harmless in a bench trial because it was a single statement, it was minor in the context of the whole trial,
and the trial court did not rely on it in making its speaking
credibility assessment). In the circumstances of this case,
we do not depart from that general path.
212 State v. Avdeyev
Defendant argues that the trial court’s error in
denying his pretrial motion was prejudicial, because it led
investigating police officers to implicitly refer to SD as a
victim, signaling to the jury that those officers believed
SD. Defendant further argues that we should consider the
prosecutor’s pervasive use of the word “victim” in closing
argument as part of our prejudice analysis, because that
use was premised on the use of “victim” during the witness
examinations.
The state responds that the witnesses’ use of the
word “victim” in this case is harmless, because it occurred
only five times during a lengthy trial with 30 witnesses. In
arguing there were only five instances, the state asserts
that we can only consider those times that the word “victim”
was said by a witness to directly refer to one of the complaining witnesses—that is, the state argues that we must
ignore any of the times the prosecutor used the word “victim” when putting a question to the witness, because, under
Sperou, it is not categorical error for a prosecutor to refer to
a complaining witness as a “victim.” Rather, the state urges
that, under Sperou, defendant was required to separately
object anytime the prosecutor used the word “victim,” which
defendant did not do in this case. The state argues that,
in the context of the whole trial, the isolated instances of
a witness saying the word “victim” had little likelihood of
affecting the verdict.
We first reject the state’s suggestion that we should
not consider what the prosecutor said in its questioning to
determine if the error here is harmful. The context of the
questions here is important because it informs whether
the premise of the question—the complaining witness’s
victimhood—is adopted and asserted by the witness in their
answer as their own reference. For example, it would be
absurd to suggest that the answer “yes” to the question “Is
SD a victim of defendant?” would not be witness vouching
under Sperou. That must be so, because the general rule
is that witness vouching is prohibited whether the vouching opinion is express or implied in the witness’s testimony;
that is, the rule “prohibits a witness from making a direct
comment, or one that is tantamount to a direct comment, on
another witness’s credibility.” State v. Black, 364 Or 579,
Cite as
309 Or App 205 (2021) 213
585,
437 P3d 1121 (2019) (emphasis added); see also State v.
Brand,
301 Or App 59, 66-67,
455 P3d 960 (2019), rev den,
366 Or 259 (2020) (a police officer’s testimony that a witness
delayed reporting because she was under fear of continued
assaults constituted impermissible vouching because it signaled to the jury that he believed the witness’s account).
Moreover, to hold otherwise would allow the holding in
Sperou to be easily side-stepped through careful questioning that would keep the word “victim” out of the mouth of
the state’s witness but would nonetheless have the very
vouching affect by a witness that Sperou held is categorical
error. As the court in Sperou noted:
“Counsel’s latitude in making comments during questioning, on the other hand, is narrower, given that counsel’s job
at that time is to present evidence in anticipation of summation. The state, in arguing generally that reference to a
defendant’s accusers as ‘victims’ falls within the scope of
legitimate advocacy, does not explain why such a reference
would be justified during questioning.”
365 Or at 136 n 4 (emphasis in original). As a result, we also
consider the instances in which the prosecutor referred to
the “victim” in questioning.
Here, the impermissible witness vouching through
the use of the word “victim” occurred largely during the
testimony of Nelson, one of the lead investigating officers.
There was also a reference by another officer, Simons, and
an instance when SD referred to other witnesses in the case
as “victims.”
We start by describing the testimony of the investigating officers, beginning with Nelson. During that testimony, the prosecutor and Nelson had exchanges emphasizing that Nelson was investigating whether SD was a
“victim”:
“A. This was on November 5th of 2015. I advised [SD]
that we had received a complaint alleging that she was possibly a victim in a case and that I would like to speak with
her.
“Q. At that time, did you give her the name of
[defendant]?
214 State v. Avdeyev
“A. I don’t believe I did at that time. And I don’t think
I even advised her, at that time, who the original complainant was.
“Q. You mentioned just that she was a victim?
“A. Correct.
“Q. Did you tell her what type; a victim of what type of
crime?
“A. I don’t believe I did at that time.”
That theme was repeated with an exchange about Nelson
contacting IG:
“Q. And do you remember what you said to [IG] when
you contacted her?
“A. Yes. I contacted her and explained to her that I was
investigating a case involving her sister being a victim of
sex abuse, and then I proceeded to ask her some questions.”
Those instances constitute impermissible vouching, because
the repeated use of “victim” in questioning communicated
that Nelson believed SD to be a victim of a crime, and not
merely his intention to determine if that was so.
The prosecutor also asked, and Nelson testified,
about his experience interviewing “victims” in the context
of his interview of SD:
“Q. And so Lieutenant Nelson, have you received
training on best practices for interviewing victims of suspected abuse?
“A. Yes.
“Q. And did your interview with [SD] follow the best
practices?
“A. Yes.”
That topic was revisited in Nelson’s testimony with regard
to his initial interview of SD:
“THE WITNESS: My purpose was just to get a general idea of what [SD] recalled at that time.
“BY [THE PROSECUTOR]: (Continuing)
“Q. And is that consistent with your training and
experience on interviewing victims of child sex abuse?
Cite as 309 Or App 205 (2021) 215
“A. Yes; really interviewing any victim in any particular case, even a witness. Many times their information is
somewhat limited when they first provide a statement, and
then over time, as they refresh that incident in their mind,
they recall things later on.
“And then typically it’s been my experience that either
witnesses or victims will notify me after the initial interview and provide more information about something.
“Q. And Lieutenant Nelson, are you familiar with the
term ‘trauma informed’ interviews?
“A. Not necessarily.
“Q. Okay.
“A. Can you refresh my memory or explain?
“Q. Are you familiar with the concept of interviewing victims of crimes and trying not to pin them down on
details?
“A. Yes.
“Q. Okay. And have you received any training on the
trauma that the brain goes through regarding victims of
all types of abuse?
“A. I have had training before in that.
“…
“Q. And at the end of your interview, or towards the
end of your interview, did you ask [SD] if she was aware of
any other victims?
“A. Yes.
“Q. And did she—do you recall, did she tell you that
she was not aware of any other victims?
“A. That is correct; she was not aware of any other victims at the time.”
That testimony constitutes impermissible vouching because,
again, the use of “victim” and “victims” in the questioning
communicated that Nelson believed that SD was a victim of
defendant.
216 State v. Avdeyev
Another police detective, Simons, who had interviewed SD in Lane County, stated the following on questioning by the prosecutor:
“Q. Did [SD] indicate that she was fearful of
[defendant]?
“A. Yes.
“Q. And based on your training and experience in
investigating child abuse investigations, is that a common
theme with child victims?
“A. Yes, it is.”
That type of testimony is impermissible vouching because it
directly communicated that Simons believed SD was fearful
because she was a victim of sex abuse. See Brand, 301 Or
App at 66-67 (police officer’s testimony that witness delayed
reporting because she was under fear of continued assaults
constituted impermissible vouching because it signaled to
the jury that he believed the witness’s account).
Finally, in an exchange between the prosecutor and
SD, SD referred to the other “victims” of defendant:
“Q. And was it finding out that there—that your sister
and that there were concerns about other family members,
did that motivate you in agreeing to talk to the police?
“A. Yes. I wanted to speak out to all the victims and to
support them.”
In the context of vouching testimony, we have found
such vouching to be harmful when the case, in large part,
is about the complaining witness’s credibility. This is particularly true when the vouching is done by a police officer,
because such testimony can be couched in terms of the officer’s expertise in interviewing victims and suspects. See
State v. Lowell, 249 Or App 364, 370,
277 P3d 588, rev den,
352 Or 378 (2012) (officer testimony that the defendant was
untruthful was not harmless where the case boiled down to
credibility and the officer’s testimony was couched in terms
of his expertise in identifying truthfulness). Admitting
impermissible vouching also typically will be harmful when
it goes to a central factual issue in the case or rebuts a key
part of the defendant’s trial strategy. See Sperou, 365 Or at
Cite as
309 Or App 205 (2021) 217
141 (an investigating officer’s use of “victim” was prejudicial because it rebutted a key part of the defendant’s trial
strategy).
Here, whether or not SD was a victim and whether
her account of her victimhood was credible were central
to the state’s case and key to defendant’s trial strategy. In
particular, Nelson’s testimony, in which the prosecutor and
Nelson had several exchanges that emphasized Nelson’s
belief that SD was a “victim” from the beginning of his investigation, and that he had expertise in interviewing such sex
abuse victims, created a significant risk that the jury would
rely on Nelson’s belief, rather than its own assessment of
credibility. This was a close case with the vast majority of
the counts involving SD resulting in a nonunanimous verdict (Counts 1, 2, 5, 7, and 9 to 19), with two of those counts
resulting in a post-verdict acquittal by the court for insufficient evidence (Counts 2 and 7). Under those circumstances,
the witnesses’ references to SD as a “victim,” particularly
the references in Nelson’s testimony, was not harmless with
respect to Counts 9 and 11. Because we conclude that the
trial court’s error was not harmless based on the witness
testimony, we do not address defendant’s argument that
we should also take into account the prosecutor’s closing
argument in our analysis. Accordingly, we also reverse and
remand the unanimous jury convictions, Counts 9 and 11, in
case number 15CR55011.
In case numbers 15CR56120 and 15CR55011,
reversed and remanded.
