535
Argued and submitted June 29, 2020, reversed and remanded March 3, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
PATRICK DALE DESHAW,
Defendant-Appellant.
Marion County Circuit Court
17CR26889; A168918
483 P3d 34
Defendant was convicted of four counts of second-degree sexual abuse, based
on four acts of oral sex with a 16-year-old boy. Over defendant’s objections, the
trial court allowed the state to elicit testimony from two witnesses regarding an
uncharged act of anal sex between defendant and the boy. Defendant contends
that the trial court erred in allowing such evidence, either because it was irrelevant under OEC 401 or because it was substantially more unfairly prejudicial
than it was probative under OEC 403. Held: The trial court erred in admitting
evidence of the uncharged act of anal sex. The evidence was not relevant under
OEC 401, and the state’s argument to the contrary—that it was relevant to establishing a timeline—fails on this record. Further, the error was not harmless.
Given the different nature of the uncharged act and the charged acts, the vivid
detail with which the uncharged act was described, and the complainant’s youth,
there is some likelihood that it affected the verdict.
Reversed and remanded.
Mary Mertens James, Judge.
Erik Blumenthal, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Peenesh Shah, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Armstrong, Presiding Judge, and Tookey, Judge, and
Aoyagi, Judge.
AOYAGI, J.
Reversed and remanded.
536 State v. Deshaw
AOYAGI, J.
Defendant was convicted of four counts of second-degree sexual abuse, based on four acts of oral sex with
a 16-year-old boy. Defendant raises three assignments
of error on appeal. First, he contends that the trial court
erred in admitting evidence of an uncharged act of anal
sex between him and the boy. Second, he argues that the
trial court erred during sentencing in failing to apply the
“shift-to-I” rule—and the state concedes that error. Third,
he challenges on Sixth Amendment grounds the trial court’s
instruction to the jury that only 10 jurors needed to agree
on guilt. Defendant’s first assignment of error is well taken,
necessitating reversal of his convictions, and obviating the
need to address his other assignments of error. Accordingly,
we reverse and remand.
FACTS
We state the facts pertinent to the legal issues before
us. Regarding the alleged evidentiary error, we describe the
challenged evidence in context, with reference to the state’s
relevancy arguments, and, as to the harmlessness of any
error, we look to the trial record as a whole. State v. Garrett,
350 Or 1, 6,
248 P3d 965 (2011); State v. Prieto-Rubio,
262
Or App 149, 155,
324 P3d 543 (2014), aff’d,
359 Or 16,
376
P3d 255 (2016).
As a youth, P was adjudicated in juvenile court for
acts that, if committed by an adult, would constitute unlawful sodomy. Because of overcrowding at the juvenile detention facility, P was held for a time at the Marion County Jail.
For part of that time, P, who was 16 years old, shared a cell
with defendant, who was in his 50s.
According to P, defendant engaged in oral sex with
P while they shared a cell. By the time of trial, P’s memory of the incidents was hazy, because over eight years had
passed, and he did “not really remember” how many times
oral sex had occurred. However, he believed that it had happened twice. The first time happened probably shortly after
he began sharing a jail cell with defendant. Defendant told
P to pull down his pants. P considered whether or not to do
it, but he decided to do it, given the prison culture. He did not
Cite as 309 Or App 535 (2021) 537
actually want to do it, but he went along with it. Defendant
performed oral sex on P. Defendant did not threaten P, and
P did not resist. When he finished, defendant did not say
anything, but P felt obligated to reciprocate, so P then performed oral sex on defendant.
Asked at trial if “any other sexual contact” with
defendant had occurred, P answered that he thought the
same thing (an exchange of oral sex) “might have happened
another time,” which was “basically, the same story.” The
prosecutor then asked, “Was there an incident that involved
him trying to insert his penis into your anus?” P answered
yes and, in response to further questioning, said that he
believed that it was after the first oral-sex incident but that
he did not know if it was the same day.
The prosecutor then asked questions about the
“additional exchange with oral sex” that P had mentioned.
P testified that he was not certain that there was a second
incident and could not guarantee that there was a second
incident, but he thought so. He explained that it is hard to
differentiate between events because “time seems to blur
when you’re in a cell.” The second incident was essentially
the same as the first. P remembers defendant performing
oral sex on him. P does not remember performing oral sex on
defendant, but he testified that he likely would have done so
because he would have felt obligated to reciprocate. The second incident was on July 4. P remembers the date because
he remembers later telling a detective that he could see or
hear fireworks.
While testifying about the second incident, P
alluded briefly to the anal-sex incident, noting that all of his
sexual contact with defendant had been oral sex, except for
the one instance of “not really successful” anal sex:
“[PROSECUTOR]: Okay. And so the second, I guess, [oral
sex] exchanges that happened also took place in your cell?
“[P]: Yes.
“[PROSECUTOR]: Anyone else in there besides you and
the defendant?
“[P]: No.
538 State v. Deshaw
“[PROSECUTOR]: Wearing the same jail uniform?
“[P]: Yep.
“[PROSECUTOR]: Okay. And what—what happened this
time?
“[P]: “I believe, basically the same thing. I mean, it
(indiscernible)
[EXCHANGE BETWEEN THE COURT AND THE WITNESS ABOUT MOVING CLOSER TO MICROPHONE]
“[P]: Thank you. Talking about the second incident, right?
“[PROSECUTOR]: Mm-hmm.
“[P]: So I think it was just a lot of oral sex. That was it, I
mean. I mean, I think at some point, whether it was the first
or second time, I don’t know, but anal sex was attempted,
but not really successful.
“[PROSECUTOR]: “Okay. Okay. So then after the anal
sex that was attempted, that’s when the—the second
grouping of oral sex happened?
“[P]: Yes.
“[PROSECUTOR]: Okay. And that was on the same day?
“[P]: I believe so.
“[PROSECUTOR]: It’s okay if you don’t remember. And
you believe it was around Fourth of July?
“[P]: Yes.”
P then returned to testifying about the second incident.
P did not report defendant’s alleged sexual abuse
to jail authorities, but, after returning to a juvenile detention facility, he eventually reported it to a counselor at the
Oregon Youth Authority. In 2015, a police detective interviewed P. The detective testified at trial that P had told her
the following. There had been multiple instances of sexual
contact between defendant and P. The first incident was an
exchange of oral sex on P’s first or second day in the cell,
which, according to jail records, would have been July 2 or 3.
There was also an attempt at anal sex later that same day,
Cite as 309 Or App 535 (2021) 539
during which defendant told P to bend over, put margarine
from a meal tray on his own erect penis and P’s anus, and
attempted penetration but did not achieve full penetration
because he “wouldn’t reach” so it was only “a little bit” of
penetration. And then there was another exchange of oral
sex on July 4. P had remembered the date of the second
oral-sex incident because he remembered something about
fireworks.
After interviewing P, the police interviewed defendant, who denied any sexual contact with P. Defendant
expressed the belief that P was retaliating against him for
reporting P as suicidal in jail.
In 2017, defendant was indicted on four counts of
second-degree sexual abuse, ORS 163.425, based on four
acts of oral sex.1 Before trial, defendant moved to exclude
any evidence of the anal-sex incident, as irrelevant under
OEC 401 and unfairly prejudicial under OEC 403. The trial
court denied the motion, reasoning that the evidence “was
relevant to the timeframe that the defendant is alleged to
have acted” and as “a reference point to the victim in his
testimony.” The court further stated that the evidence’s
relevance outweighed its potentially prejudicial effect. The
court did preclude anyone from asserting that the anal
intercourse was a criminal act or a charged crime.
Defendant proceeded to a jury trial. During both P’s
testimony and the detective’s testimony, defendant renewed
his objection to the admission of evidence about the anal-sex
incident. The court overruled those objections on the same
grounds.
The jury found defendant guilty of all counts, by
unanimous verdicts. The court sentenced defendant to consecutive sentences of 30 months (Count 1), 30 months (Count 2),
30 months (Count 3), and 25 months (Count 4)—for a total
prison sentence of 115 months—and 36 months of postprison supervision. Defendant appeals.
1
As relevant here, it is second-degree sexual abuse to subject another person to oral sex without the person’s consent, ORS 163.425(1)(a), and a person
under 18 years of age “is considered incapable of consenting to a sexual act,”
ORS 163.315(1)(a). Defendant was charged under the 2010 version of the statutes,
which were materially the same.
540 State v. Deshaw
ANALYSIS
For evidence of uncharged bad acts by a criminal
defendant to be admitted under OEC 404(3), the evidence
must be relevant to a nonpropensity purpose, and its probative value must outweigh any unfair prejudice. State v.
Baughman, 361 Or 386, 404,
393 P3d 1132 (2017). Whether
evidence is relevant to a nonpropensity purpose is a question
of law that we review for legal error.
Id. at 406. Whether the
probative value of evidence outweighs any unfair prejudice
is a discretionary call that we review for abuse of discretion.
Id.
Under OEC 401, “evidence is relevant so long as it
increases or decreases, even slightly, the probability of the
existence of a fact that is of consequence to the determination of the action.” State v. Grubb, 279 Or App 458, 466,
379 P3d 715, rev den,
360 Or 423 (2016) (internal quotation
marks omitted). Evidence meets that “very low threshold”
if it “affects the balance of probabilities to any degree.”
Id.
(internal quotation marks omitted). Relevancy “depends on
the particular facts of each case.” State v. Stafford,
157 Or
App 445, 454,
972 P2d 47 (1998), rev den,
329 Or 358 (1999).
Here, the trial court allowed both P and the detective to testify about the alleged anal-sex incident on the
basis that it “was relevant to the timeframe that the defendant is alleged to have acted” and was “a reference point to
the victim in his testimony.” Defendant acknowledges that,
in appropriate circumstances, establishing a timeline can
be a valid basis to admit evidence of an uncharged act. For
example, in Grubb, the defendant was charged with driving under the influence of intoxicants (DUII), and we held
that the trial court did not err in admitting evidence that
he had assaulted his girlfriend on the night of the alleged
DUII incident, where the timing of defendant’s alcohol consumption was the primary dispute at trial, and the assault
evidence tended to prove that he had driven closer in time to
drinking than he claimed. 279 Or App at 460, 468.
Defendant contends that the challenged evidence
had no such relevance in this case. The prosecution theory
was that defendant and P exchanged oral sex on July 2 or 3
(the basis for Counts 1 and 2) and again on July 4 (the basis
Cite as 309 Or App 535 (2021) 541
for Counts 3 and 4), which was nonconsensual because P
was 16 years old at the time and thus legally incapable of
consent. Both P and the detective testified about two separate oral-sex incidents on two separate days. Meanwhile,
the defense theory was that defendant had no sexual contact
with P at any time. Defendant argues that, in this case, the
anal-sex evidence was entirely irrelevant, because it “establishes a ‘timeline’ for the day, but to what end?” All events
have some temporal relationship to other events, defendant
argues, but, unless that temporal relationship has some
bearing on a material issue of fact, the mere coexistence of
charged and uncharged acts on a single timeline cannot justify the admission of evidence of uncharged bad acts.
In response, the state argues that the anal-sex incident was relevant as a reference point in time for P, particularly because defendant’s trial occurred years after the
alleged crimes and P had an imprecise memory about how
many times he had engaged in oral sex with defendant.
The state describes the anal-sex incident as providing an
important temporal anchor for P, because, according to the
state, the one thing that P could remember with certainty
was that there was one oral-sex incident before the anal
sex and another after it. The state further argues that the
“memorable and inflammatory” nature of the uncharged act
was precisely what made it so probative as a reference point.
The difficulty with the state’s argument is that it is
theoretically sound but unconnected to the actual evidence.
P never used the anal-sex incident as a temporal anchor.
When P failed to mention the anal-sex incident in response
to an open-ended question about sexual contact with defendant, the prosecutor purposefully elicited testimony about
it. Thereafter, P mentioned the anal-sex incident only once
on his own, almost in passing, to illustrate a different point.
The little evidence about when that incident happened relative to the oral-sex incidents was also vague and inconsistent. P remembered the anal-sex attempt happening after
the first oral-sex incident, but he did not remember which
day it was or “whether it was the first or second time,” evincing enough uncertainty to prompt the prosecutor to reassure him that it was “okay if you don’t remember.” P eventually agreed that he “believed” that it was “around Fourth of
542 State v. Deshaw
July.” Meanwhile, the detective testified that P had told her
in 2015 that the anal-sex incident had occurred later on the
same day as the first oral-sex incident on July 2 or 3.
Whether P remembers the anal-sex incident as having occurred on the same day as the first oral-sex incident,
remembers it as having occurred on the same day as the
second oral-sex incident, or does not remember which day
it occurred, the key point is that nothing about P’s or the
detective’s testimony suggested that P viewed the anal-sex
incident as any kind of temporal anchor for the oral-sex incidents. The state’s evidence would suggest that, if all three
incidents occurred, the anal-sex incident likely occurred
between the two oral-sex incidents in time. However, there
is nothing to suggest that that sequence of events was significant to P in terms of his ability to remember the oral-sex
incidents. P repeatedly testified to his poor memory of the
events, and, as to why he believed there was more than one
oral-sex incident, P offered no explanation, other than to say
that he thought that it had happened more than once. The
only temporal anchors that P ever used during his testimony
were his first day in the jail cell with defendant, which he
used to estimate when the first oral-sex incident occurred,
and the July 4th holiday, which he remembered as the date
of the second incident because of fireworks.
We therefore agree with defendant that the trial
court erred in overruling his objections to P’s and the detective’s testimony about the anal-sex incident, based on its
prior ruling that the evidence was “relevant to the timeframe that the defendant is alleged to have acted” and “a
reference point to the victim in his testimony.” P never used
the anal-sex incident as a reference point—at most, he tried
to answer the prosecutor’s questions about timing and was
assured that it was okay if he did not remember—nor was
the specific sequence of events or their timing material to
the state’s case. Although there could be scenarios in which
such evidence of an uncharged act would be relevant, here,
the evidence that defendant attempted to have anal sex with
P at one point made it no more or less likely that defendant
twice engaged in oral sex with P. See Grubb, 279 Or App
at 466 (relevance standard). The trial court therefore erred
Cite as
309 Or App 535 (2021) 543
in overruling defendant’s objections to the admission of the
evidence.
Having concluded that it was error to admit the evidence, the next question is whether the error was harmless.
If there is little likelihood that an evidentiary error affected
the verdict, we must affirm, notwithstanding the error. State
v. Davis, 336 Or 19, 32,
77 P3d 1111 (2003). In conducting
a harmlessness analysis, our focus “is on the possible influence of the error on the verdict rendered, not whether this
court, sitting as a fact-finder, would regard the evidence of
guilt as substantial and compelling.”
Id. The “defendant has
the burden to demonstrate that the error affected a substantial right.” State v. Nguyen,
293 Or App 492, 498,
429 P3d
410 (2018).
Defendant argues that the error was not harmless,
because “both the bare fact of the uncharged-misconduct
evidence and the detail with which the state presented it
was highly inflammatory,” creating the “risk that the jury
would convict defendant based on a predatory character,
rather than on the weight of the evidence” of the charged
crimes. See State v. Wright, 283 Or App 160, 178,
387 P3d
405 (2015) (holding that admission of uncharged-misconduct
evidence was not harmless, where it was “highly inflammatory, and, as such, created a risk that the jury would convict defendant based on his past acts or his character”). In
response, the state makes a single argument: that the jury’s
sole task was to determine whether defendant engaged in
the charged conduct—four oral-sex acts with P—and so it
did not matter whether defendant engaged in anal sex with
P. Of course, something analogous could be said in any case
in which evidence of an uncharged bad act is erroneously
admitted, precisely because it is an uncharged act.
We agree with defendant that the error was not
harmless in this case. That is, we cannot say that there
is little likelihood that it affected the verdict. Defendant
denied having any sexual contact with P. Although P testified unequivocally that sexual contact occurred, there were
aspects of P’s testimony and the circumstances of the case
that the defense could use to attack his credibility, including
P’s initial denial of any sexual contact with defendant (to a
544 State v. Deshaw
correctional officer at the jail), P’s delayed reporting, and the
fact that P spoke with the police for the first time five years
after the alleged crimes. The state’s case was also necessarily weakened by P’s repeated statements at trial that he did
not remember the events well and was unsure how many
times oral sex had occurred. Into that mix was injected
highly inflammatory evidence of an uncharged act that
itself would obviously be a crime. Defendant fairly describes
that evidence as “highly inflammatory, demeaning evidence
presented in a vividly detailed manner that was likely to
linger in the jurors’ minds, causing the jury to confuse the
issues and bear ill will toward defendant.” The state itself
describes it as relating to “memorable and inflammatory
conduct.” Moreover, the evidence did not come in by happenstance but was elicited by the prosecutor, from both P and
the detective, suggesting that the prosecutor made a tactical decision that it could be significant to the jury. Given
the different nature of the uncharged act than the charged
acts, the vivid detail with which it was described, and P’s
youth, we cannot say that the erroneous admission of such
evidence had little likelihood of affecting the verdict.
Reversed and remanded.
