State v. Chitwood

                                        22

         Argued and submitted May 30, 2019, affirmed March 17, 2021


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                 NATHAN THOMAS CHITWOOD,
                     Defendant-Appellant.
                  Douglas County Circuit Court
                     15CR48036; A165817
                                   

     A jury unanimously found defendant guilty of first-degree sexual abuse,
second-degree sodomy, and second-degree rape. Defendant appeals, contending
that the trial court erred in four ways: (1) by denying defendant’s motion in limine
to introduce evidence of the victim’s sexual activity; (2) by failing to, sua sponte,
grant a mistrial or issue a curative instruction when the prosecutor, in rebuttal, argued that, “if you determined that [defendant] should not reside with an
adolescent girl, that’s your moral certainty and I have proven my case beyond a
reasonable doubt”; (3) by denying defendant’s post-trial motion to question jurors
after the court received a letter from one juror; and (4) by instructing the jury
that it could convict defendant by a nonunanimous verdict. Held: The trial court
did not err in denying defendant’s motion in limine and motion to question jurors.
The limited record before the court at the time of its pretrial ruling on defendant’s motion in limine did not compel the conclusion that defendant’s need for
the evidence outweighed the state’s interest in excluding it. On the motion to
question jurors, the court was within its discretion in concluding that the information supplied by the juror’s letter did not amount to fraud or misconduct such
that the court was required to grant the motion. The Oregon Court of Appeals
declined to exercise its discretion to correct the alleged plain errors relating
to the prosecutor’s closing argument, and the trial court’s nonunanimous jury
instruction error was harmless.
    Affirmed.



    Frances Elaine Burge, Judge.
    Lindsey Burrows argued the cause and filed the briefs
for appellant. Also on the opening brief was O’Connor Weber
LLC.
   Timothy A. Sylwester, Assistant Attorney General, argued
the cause for respondent. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
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 (2021)   23

  LAGESEN, P. J.
  Affirmed.
  James, J., dissenting.
24                                         State v. Chitwood

        LAGESEN, P. J.
          The state charged defendant with 19 sex offenses
against a 13-year-old victim and one count of unlawful delivery of marijuana to the same minor. A jury unanimously
found defendant guilty on three charges—one count of first-degree sexual abuse, one count of second-degree sodomy, and
one count of second-degree rape—and acquitted him on the
remainder. The trial court merged the guilty verdicts on the
sexual abuse and sodomy charges and entered a judgment
of conviction for one count of second-degree sodomy and one
count of second-degree rape. Defendant appeals, contending
that the trial court erred in four ways: (1) by denying defendant’s motion in limine to introduce evidence of the victim’s
sexual activity; (2) by failing to, sua sponte, grant a mistrial or issue a curative instruction when the prosecutor, in
rebuttal, argued that “if you determined that [defendant]
should not reside with an adolescent girl, that’s your moral
certainty and I have proven my case beyond a reasonable
doubt”; (3) by denying defendant’s post-trial motion to question jurors after the court received a letter from one juror;
and (4) by instructing the jury that it could convict defendant by a nonunanimous verdict. We affirm.
         Motion in limine. The charges against defendant
stemmed from his conduct involving his 13-year-old stepdaughter, B. Before trial, defendant moved in limine under
OEC 412 for a ruling allowing him to introduce evidence
that, during her CARES interview, the victim “admit[ted] to
not being a virgin, outside of the allegations that are made
in this case.” Defendant argued that the evidence about the
victim not being a virgin was constitutionally required to be
admitted to counteract the possibility that the jury might
infer that, because of her age, the only possible source of
her sexual knowledge was the alleged crimes committed
by defendant. The prosecutor argued in response that she
did not intend to argue that it was inferable that the only
place the victim could have obtained sexual knowledge was
from defendant. She also noted that the victim’s knowledge
was not relevant to any element that the state had to prove.
After hearing the parties’ arguments, the trial court denied
the motion, ruling that “based on what I have before me, I
do not find that the defense has, has met its burden to allow
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that information to come in. And that’s, again, based on
what evidence I have.” Defendant did not seek to introduce
the evidence at trial after the victim testified, or otherwise
renew the motion to admit the evidence.
         On appeal, defendant assigns error to the court’s
denial of his pretrial motion. He argues, as he did below,
that the evidence was constitutionally required to be admitted under OEC 412(2)(b)(C). The state responds that, especially considering the limited record before it at the time it
ruled on defendant’s motion, the court did not err.
         Our review of the trial court’s ruling is for legal
error. State v. Fowler, 

, 

,
rev den, 

 (2009) (reviewing for legal error trial
court’s determination regarding admissibility of evidence
under OEC 412(2)(b)(C)). OEC 412 generally bars the introduction of evidence of a crime victim’s past sexual behavior
in the prosecution of a sex offense unless the evidence falls
within one of the rule’s exceptions. OEC 412(2); Fowler, 

. Here, defendant contends that the applicable exception is OEC 412(2)(b)(C), which allows for the
admission of a victim’s past sexual behavior when “otherwise constitutionally required to be admitted.” Defendant
argues that the evidence was constitutionally required to be
admitted in furtherance of his right to present a defense.
         “In determining whether evidence must be admitted because excluding it would infringe on a defendant’s
constitutional rights to confront witnesses and present
exculpatory evidence, the constitutional issue reduces to a
weighing of the state’s interest in excluding the defendant’s
evidence against the value of that evidence to the defense.”
Fowler, 

 (brackets and internal quotation marks omitted). As we have explained, “Under OEC
412, the state’s interest is in protecting victims of sexual
crimes from degrading and embarrassing disclosure of intimate details about their personal lives, thereby encouraging
victims to report and assist in the prosecution of the crime.”

 (brackets and internal quotation marks omitted).
        In this case, defendant’s claimed need for introducing the evidence was to rebut the inference that the only
way the victim could have obtained her sexual knowledge
26                                              State v. Chitwood

was through the alleged conduct involving defendant. But
the limited record before the court at the time of its pretrial
ruling does not compel the conclusion that defendant’s need
for the evidence outweighed the state’s interest in excluding
it. As the state points out, the victim was 13 years old, an
age at which it would not be unreasonable to think that she
had acquired some degree of knowledge about sex through
exposure to the world. Further, on the record before the
trial court at the time of its ruling, there was little reason
to think that cross-examination could not be used to demonstrate that the victim had sexual knowledge acquired from
sources other than defendant. See State v. Weeks, 

, 291 n 2, 

 (1989), rev den, 

 (1990)
(noting the role cross-examination can play in demonstrating a victim’s sexual knowledge). Finally, the prosecutor
represented that she would not be arguing that the jury
should infer that defendant committed the crimes based on
the notion that the victim would not otherwise have knowledge about the conduct that she was describing. Under those
circumstances, the court was correct to conclude that defendant had not demonstrated pretrial that the evidence was
constitutionally required to be admitted.
         Closing argument. In his second assignment of error,
defendant argues that the trial court erred when it did not
grant a mistrial or issue a curative instruction when the
prosecutor made the following argument to the jury during
closing argument rebuttal:
        “[PROSECUTOR:] The things that I want to cover
     with you is do you remember Mr. Strong, our juror that
     said he was falsely accused and he described to you that
     his false accuser was washed out at the forensic interview
     stage? I don’t know if you all remember that but he claimed
     he had been falsely accused of a sex crime and she washed
     out because it was false. And this is not false.
        “I want to talk to you about moral certainty because
     that’s the threshold. Deep down in your core is your moral
     core and that’s where you’re deciding this case from. Moral
     certainty. And if, after considering all of the evidence, and
     again, I encourage you to listen and look at everything that
     you see here today. Based on the evidence presented to you,
     without bias or sympathy for anyone, if you determine that
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   [defendant] should not reside with an adolescent girl, that’s
   your moral certainty and I have proven my case beyond a
   reasonable doubt. Thank you.”
         Defendant did not object to the prosecutor’s closing
argument. He argues, however, that the trial court, on its
own, (1) should have recognized that the prosecutor’s reference to the jury impermissibly relied on evidence outside the
record when talking about the prospective juror, (2) should
have recognized that the prosecutor’s description of what it
meant to have moral certainty inaccurately characterized
the burden of proof, and (3) should have issued either a curative instruction or granted a mistrial.
         Had defendant made his objections to the trial
court, it would have been incumbent on the court to, at a
minimum, issue a curative instruction. It is not permissible
to base closing argument on extra-record evidence. State v.
Spieler, 

, 

 (2015). And the
prosecutor’s assertion that she had proved her case beyond
a reasonable doubt if the jury felt that defendant should not
live with an adolescent girl is not an accurate statement
of the law and risked misleading the jury into thinking it
could convict based on its comfort level with defendant living with an adolescent girl. That appeal was, in effect, an
impermissible plea to the jury to decide the case based on
how the evidence made it feel about defendant, instead of
deciding it based on a determination that it was persuaded
by the evidence that defendant had committed the charged
crimes. See State v. Lundbom, 

, 

, rev den, 

 (1989) (improper for prosecutor to
make arguments “calculated to elicit an emotional response
from the jury”). But defendant did not object so we are in a
plain error posture, which means that we would have to be
persuaded to exercise our discretion to correct the alleged
error, were we to conclude that it was plain.
         We are not persuaded to do so here. As an initial
matter, the record does not compel the conclusion that
defendant was denied a fair trial because of the prosecutor’s remark. See State v. Montez, 

, 

 (1996), cert den, 

 (1997) (“[T]he trial court’s
failure to grant a mistrial sua sponte constitutes reversible
28                                           State v. Chitwood

error only if it is beyond dispute that the prosecutor’s comments were so prejudicial as to have denied defendant a
fair trial.”). And where it is possible that a party failed to
raise an objection for strategic reasons, that weighs against
correcting any alleged error on plain error review. State v.
Fults, 

, 

 (2007) (noting that “the
possibility that [the] defendant made a strategic choice not
to object” weighs against correcting plain error).
         Here, there is a possibility that defendant made a
strategic choice not to request a mistrial. The prosecutor’s
remarks occurred in rebuttal, at the very end of trial, a
point at which defendant may well have had a sense of how
the trial was going and may have wanted it to go forward to
the jury, rather than end in a mistrial.
         As for a curative instruction, there is a possibility
that defendant made a strategic choice not to request one
so as not to highlight the prosecutor’s argument with an
instruction addressing it right before the case went to the
jury. See, e.g., State v. Ramirez-Estrada, 

, 

 (2013), rev den, 

 (2014) (declining
to reverse based on alleged plain error on not giving a curative instruction where it was plausible the defendant did not
want one). In any event, the error in failing to give a curative instruction is one that easily could have been avoided if
defendant had brought the need for one to the court’s attention, and to exercise our discretion to correct the error in
this circumstance would undermine the purposes of preservation by allowing for potential tactical sandbagging by
declining to raise the issue so that defendant could take the
case to jury, obtain the benefit of any acquittals (in this case,
17), and then present the issue on appeal to obtain the reversal of any convictions (in this case, given merger, two). See
State v. Inman, 

, 

 (2015),
rev den, 

 (2016) (“[T]he ease with which any error
could have been avoided or corrected should be a significant
factor in an appellate court’s decision whether to exercise
its discretion to correct a plain, but unpreserved, error.”).
For those reasons, we decline to exercise our discretion to
correct the alleged errors of declining to issue a curative
instruction or grant a mistrial to the extent they might
otherwise qualify as plain errors.
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          The dissenting opinion reaches a contrary conclusion.
In so doing, it addresses important considerations about the
need for jury concurrence and the potential risks and effects
of overcharging on jury deliberations. Those considerations
are ones that, in the context of a preserved claim of error—
that is, in a case in which a defendant had objected and the
trial court declined to take action—would point toward the
conclusion that the error was not a harmless one. But in this
unpreserved setting and in view of the Supreme Court’s guidance on how to address unpreserved claims of error, those
considerations do not counsel in favor of exercising our discretion to correct the unpreserved claims of error here.
          Jury questioning. In his third assignment of error,
defendant challenges the trial court’s denial of his motion
to question jurors under UTCR 3.120(2). That motion was
based on a post-trial letter to the court from one of the jurors
and information that defense counsel had obtained from a
third-party about another juror. In the letter to the court,
the juror expressed concern that the jury had been tired,
and that defendant might have been “unfairly convicted by
a tired jury whose decisions may have been based more on
feelings than evidence.” The juror stated that she thought
not every count had received the full attention of the jury
and that some of the counts did not have the necessary
number of votes (at that time, 10). (Notwithstanding the
juror’s expressed concerns about whether the verdicts were
supported with the requisite number of votes, we note that
the record contains the written jury poll. On each count,
each juror signed on a line indicating that juror’s vote. That
written poll demonstrates that each verdict had the correct
number of votes and that all three verdicts of guilt were
unanimous.) She also stated that she “did not feel that we
followed the mathematical instructions you gave us to arrive
at our verdict.” The information obtained from a third-party
was the opinion of a different juror that another juror (not
the letter writer), who was married to defendant’s cousin,
“wanted to hang Defendant right off the bat.” (As defendant
acknowledges, however, the juror disclosed the relationship
in voir dire but affirmed that she could be fair and impartial.)
Defendant argued that that information supplied a basis for
questioning jurors. The trial court denied the motion.
30                                           State v. Chitwood

          Our review is for abuse of discretion, State v. Wright,

, 

 (1996), and the trial court did not
abuse its discretion. UTCR 3.120(2)(b) allows for a party to
have contact with a juror if “[t]here is a reasonable ground
to believe that a juror or the jury has been guilty of fraud
or misconduct sufficient to justify setting aside or modifying the verdict or judgment.” But, as we have explained,
“[t]here is a strong policy in Oregon to protect jury verdicts
from attack, and courts are hesitant to interrogate jurors
after they have reached a verdict in order to probe for potential misconduct.” Koennecke v. State of Oregon, 

, 

, rev den, 

 (1993). Thus, “The
kind of misconduct that will be considered in an attack on
the verdict is misconduct that is extrinsic to the communications between jurors during the deliberative process or
that amounts to fraud, bribery, forcible coercion or any other
obstruction of justice that would subject the offender to contempt of court or criminal prosecution.” State v. Jones, 

, 

, rev den, 

 (1994)
(footnote omitted).
          Here, the trial court was within its discretion to
conclude that the information on which defendant based his
motion did not demonstrate misconduct of that ilk. Rather,
the information supplied was more indicative of the ordinary challenges and imperfections that inhere in the deliberative process of a jury—tiredness, disagreements, strong
opinions, and concerns that the jury as a whole did not reach
the correct decision. Although they are reminders of some
of the weaknesses of our jury system, they are the types of
things that do not rise to the level of fraud or misconduct, so
as to have required the grant of defendant’s motion for jury
questioning in the face of Oregon’s strong policy against
such questioning. See, e.g., Jones, 

 (juror’s
expression of intense beliefs about guilt not misconduct).
          Instructions regarding nonunanimous verdicts. In a
supplemental brief, defendant assigns error to the court’s
instruction that only 10 jurors needed to find defendant
guilty to convict him, although he acknowledges that the
jury’s verdict on each count was unanimous. That claim of
error is foreclosed by State v. Flores Ramos, 

, 

 (2020) (holding that error in instructing
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the jury that it could return nonunanimous guilty verdicts
did not require reversal of convictions rendered by unanimous guilty verdicts), and State v. Kincheloe, 

, 

 (2020) (same).
           Affirmed.
           JAMES, J., dissenting.
         I join my colleagues in rejecting defendant’s first
assignment of error challenging the denial of his motion
in limine. However, I reach a different conclusion than the
majority on defendant’s second assignment of error.1 In this
case, the court instructed the jury on reasonable doubt using
the optional language of Uniform Criminal Jury Instruction
(UCrJI) 1009 speaking to “moral certainty.” Specifically, the
court instructed the jury prior to closing:
    “You must return a verdict of not guilty if, after careful and
    impartial consideration of all the evidence in the case, you
    are not convinced to a moral certainty that the defendant
    is guilty.”
        UCrJI 1009 gives no definition to moral certainty.2
But in rebuttal closing, the prosecutor sought to define
“moral certainty” for the jurors as follows:
    “[I]f you determine that [defendant] should not reside with
    an adolescent girl, that’s your moral certainty and I have
    proven my case beyond a reasonable doubt.”
Defendant did not object, and the court took no action in
response to the prosecutor’s statement.
    1
      Accordingly, I need not reach the third and fourth assignments of error.
    2
      There is no statutory requirement that UCrJI 1009 include the option for
“moral certainty.” As the Oregon Supreme Court has held, “[i]ncluding the term
‘moral certainty’ in an instruction defining reasonable doubt is not necessarily
error, … [but] is not particularly helpful to the jury.” State v. Williams, 

, 

 (1992). The criticisms of “moral certainty” as an instruction
to define reasonable doubt are legion. See, e.g., United States v. 

 F2d
875, 876 (W D Wash 1926) (Moral certainty is a phrase that “involves a contradiction approaching absurdity; for ‘certainty’ imports a truth of fact and proven
beyond any doubt or question, while ‘moral’ imports the like proven to only probability. That is to say, taken literally and not in judicial forced construction to
sanction its use, the term imports a truth of fact probably proven beyond any
doubt or question.”); People v. Brigham, 25 Cal 3d 283, 304, 

 (1979)
(explaining at length the problems with moral certainty); Barbara J. Shapiro, To
A Moral Certainty: Theories of Knowledge and Anglo-American Juries 1600-1850,
38 Hastings L J 153 (1986) (discussing history of the term).
32                                                        State v. Chitwood

         On appeal, defendant’s second assignment of error
challenges the prosecutor’s erroneous definition of moral
certainty, arguing that the trial court was obligated, sua
sponte, to give a curative instruction in response. The
majority concludes that the prosecutor’s statements were
improper, and that a curative instruction would have been
required, if requested. I agree.
         As I understand the majority opinion, it appears to
view the error here as qualifying as plain error under the
first prong of Ailes v. Portland Meadows, Inc., 

, 

 (1991), but declines to exercise discretion
to correct the error. The majority’s decision to not reverse a
conviction based upon unobjected to prosecutorial misconduct in closing argument is not unusual; quite the opposite.
I can find not a single occurrence of Oregon appellate courts
ever exercising discretion to correct prosecutorial misconduct in closing when the matter is raised as one of plain
error. And yet, simply because something always has been,
does not mean it has always been right. For the following
reasons, I would exercise discretion to correct the error here,
and respectfully dissent.
         As I have previously explained in the context of our
harmless error analysis, we have employed a “flawed jurisprudential approach to assessing … prosecutorial misconduct in closing.” State v. Camirand, 

,

 (2020) (James, J., dissenting). The concerns I
expressed in Camirand are present in this case. But the
prosecutorial misconduct in this case occurs against a contextual backdrop not present in Camirand: prosecutorial
overcharging. Overcharging is the prosecutorial decision to
either (1) charge a higher severity of offense than the facts
warrant, or to (2) charge a greater number of counts than
the facts can support.3 Overcharging is not simply charging
a defendant with a multitude of crimes. There is nothing
improper about the state’s choice to subject a defendant to
the full penalty of the law for each unlawful act committed.
It is when the choice in severity of charge, or the number
    3
      Some states have prohibited overcharging by statute. See, e.g., RCW
9.94A.411(2)(a) (“(ii) The prosecutor should not overcharge to obtain a guilty plea.
Overcharging includes: (A) Charging a higher degree; (B) Charging additional
counts.”). Oregon has no such statutory prohibition.
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of charges, is disconnected from the specific instances of
conduct justifying each charge that overcharging occurs.
In this respect, overcharging bears a relationship to jury
concurrence.
          The practice of overcharging a defendant is a widely
recognized abuse of the prosecutor’s generally unreviewable discretion. It is an act that, while not uncommon, and
often acknowledged as troubling, rarely goes addressed by
courts. At best, opinions express toothless concern. See, e.g.,
Bordenkircher v. Hayes, 

, 368 n 2, 

,

 (1978) (Blackmun, J., dissenting); United
States v. Andrews, 612 F2d 235, 241 n 7, 256 n 23 (6th Cir
1979), reh’g en banc, 633 F2d 449 (1980), cert den, 

 (1981) (Keith, J., dissenting). As a result, “overcharging
… continue[s] to occur regularly, without meaningful judicial review or correction.” Bennett L. Gershman, The New
Prosecutors, 53 U Pitt L Rev 393, 408 (1992).
        The risks of overcharging are two-fold. The first
risk—and the one that is most often discussed—involves
plea bargaining. As the Ninth Circuit noted in United States
v. Robertson:
   “Plea bargaining is now the mainstay of our criminal law
   system, and excessive charges give the prosecutor added
   leverage in the plea bargaining process. Because of the
   threat of prosecution on such charges, defendants may be
   induced to plead guilty on more unfavorable terms than
   might otherwise be fair or reasonable. The risk of going to
   trial may simply become too great, even in cases in which
   the defendant may arguably be innocent of some of the
   charges.”

 (9th Cir 1994), rev’d, 

, 

 (1995), reinstated in part, 

 (9th Cir
1996) (Reinhardt, J., concurring). Overcharging so dramatically tilts the risk of going to trial that a defendant, even an
innocent defendant, can make the entirely rational choice
to plead guilty and accept a known lesser sentence, rather
than run the risk of proclaiming their innocence.
         But there is a second risk from overcharging, and it
is the one implicated in this case. “[B]eyond the plea bargaining stage, overcharging may facilitate a compromise verdict
34                                          State v. Chitwood

in which the jury channels its doubt as to the defendant’s
guilt into acquitting him on some charges but not others.”

 In essence, when the jury is faced with a great volume
of charges, the natural and understandable human reaction
is to think that the defendant must have done something.
When the government accuses a defendant of 10, 20, or more
crimes, surely, thinks the jury, some of these must be true.
The risk that a jury may base its verdict, not upon proof
of a specific act justifying a specific charge, but upon the
belief that some criminal activity occurred in some manner,
is at its zenith when the charges at issue are numerous or
largely duplicative, and undifferentiated by date, time, or
occurrence. That is the situation here.
          The state charged the defendant with 19 sexual
offenses: 3 counts of sexual abuse in the first degree, ORS
163.427 (Counts 1 to 3), 5 counts of sodomy in the second
degree, ORS 163.395 (Counts 4 to 8), 1 count of unlawful sexual penetration in the second degree, ORS 163.408
(Count 9), and 10 counts of rape in the second degree, ORS
163.365 (Counts 10 to 19). Each of those 19 counts in the
state’s indictment begins identically: “[t]he defendant, on or
between August 2, 2014, and August 2, 2015, in Douglas
County, Oregon, did unlawfully and knowingly ….”
          The state’s theory at trial was that defendant
repeatedly sexually abused the victim, his stepdaughter.
The victim’s testimony described a host of terrible, repeated,
ongoing abuse over time. There was ample evidence in the
record, in theory, to justify many of the charges against
defendant. But the state made little effort to explain to the
jury precisely what acts formed the basis of which charge.
Defense counsel, bafflingly, did not make a motion for election, which would have triggered the trial court’s obligation
to “choose a means to ensure the jury limits its consideration to the elected factual occurrence.” State v. Payne, 

, 

 (2019). Nor did the trial court,
on its own initiative, employ one of the “three primary tools
at its disposal to ensure a jury bases its verdict on a discrete
factual situation: a jury instruction, a statement of issues,
or a verdict form.” 

 Finally, even though we have held that
“[b]ecause an Ashkins [State v. Ashkins, 

, 

 (2015)] election exists to ensure jury concurrence,
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mere argument by the parties is insufficient to ensure that
the jury only relied on certain evidence in reaching its verdict,” not even that poor substitute for a concurrence instruction was present here. 

        In closing argument, the state called out a few
instances of conduct, but nothing equaling all 19 counts:
   “[PROSECUTOR]: On the couch, he grabbed her phone,
   he put [her] mouth on [his] penis, that’s Sodomy 2.
      “…
   “[PROSECUTOR]: Licking, his, his mouth on her vagina
   after sexual intercourse, she told that on the pretext call.
   You, you licked my vagina after you had sex with me. That’s
   Sodomy 2.”
No other actions were identified as corresponding to sodomy,
and the jury was left to decide for themselves which counts
of sodomy, 4 through 8, reflected which factual allegation.
        With respect to the sex abuse counts, the prosecutor again called out some acts, but not enough to tie to each
count:
       “[PROSECUTOR]: The mouth on her breasts in front
   of Cody, that’s Sex Abuse. That’s touching her breasts for a
   sexual purpose, Sex Abuse 1.”
Counts 1, 2, or 3, were unspecified.
   And again, as to the rape charges:
   “[PROSECUTOR]: The sexual intercourse in the bathroom, she discussed that on the pretext call, that’s Rape 2.
      “…
   “[PROSECUTOR]: She discussed having sex on his bed
   with him, that’s Rape 2.”
The indictment charged 10 counts of rape.
        Ultimately, the prosecutor abandoned all attempts
to make an election by tying the specific counts to specific
acts when she told the jury to do that job for themselves:
      “If you determine she is credible when she says that
   he placed his penis in her mouth or anus, or placed his
36                                                          State v. Chitwood

     mouth on her vagina, or licked her vagina, that is Sodomy
     in the Second Degree. “If you can differentiate five different times, find him guilty of Counts 4, 5, 6 and 7. … You
     need to differentiate them. If you decide there is only two
     or three that you can differentiate, find him guilty of only
     two or three.
         “If you determine that [defendant] had sexual intercourse with [victim], that is Rape in the Second Degree.
     If you find it occurred ten times as [she] told you, find him
     guilty of Counts 10 through 19. If you can only differentiate
     five or six or seven, find him guilty of the ones that you can
     differentiate.”
          The manner in which this case was tried—the number of charges, the lack of an election, the lack of a concurrence instruction, and the failure at closing to tie specific
counts to specific acts—created a powder keg. The prosecutor’s definition of moral certainty was the match. Faced
with 19 sexual crimes spanning a year-long date range and
untethered to specific instances of conduct corresponding
to each count, the prosecutor sought to define “moral certainty” for the jury as whether defendant “should not reside
with an adolescent girl.” Such a definition invites the jury
to decide the matter, not upon the evidence supporting the
specific factual allegations, but upon propensity. Propensity
based arguments are no less injurious to the “fairness of
trials and the accuracy of verdicts” than propensity evidence.
State v. Skillicorn, 

, 

 (2021).
         Ultimately, the jury convicted defendant on three
counts—Count 1, Count 4, and Count 11—the first count in
each of their respective categories. Why those counts and
not the others? What acts did the jury believe occurred, and
which did it reject? On what acts, exactly, did the jury convict and acquit? We simply have no idea. Nothing in this
record indicates that anyone ever involved in this case—not
the prosecutor, the defense counsel, the trial court, nor the
jury—understood what the jury decided at the end of the
trial.4 This was fully evident when, ultimately, at sentencing
    4
      Of note, a juror mailed the trial court a letter after the verdict, which the
court accepted and made part of the record. In that letter, the juror states:
    “Initially, things were said like ‘my gut tells me he’s guilty,’ but it was pointed
    out that we were to make our determination on the evidence, rather than our
Cite as 

 (2021)                                               37

the parties faced the issue of whether the sentences should
run consecutively. The prosecutor noted to the court:
      “[PROSECUTOR]: I can’t ask you to make that same
   finding because I don’t know which incident the jury
   decided was the Sex Abuse in the First Degree. So based
   on the law, I believe that the Sex Abuse in the First Degree
   must be concurrent with one of the others ….”
The court inquired further of the prosecutor on that point:
      “THE COURT: I recall, for the closing, that you had to
   make election, basically, and can you remind me what your
   election was?
       “[PROSECUTOR]: Your Honor, I don’t, I don’t, I don’t
   recall that I made a particular election. I, I believe I told
   them they had to, there were many incidents that were testified to but they had to, in their minds and their deliberations, describe the incident that they were gonna vote on
   and then vote on it. I don’t recall that I told them which
   ones ….”
         This case did not conform to how criminal trials
are expected to be conducted in Oregon, particularly serious
felony trials. I cannot join the majority in concluding that
defense counsel’s failure to object might evidence “a strategic choice” not to request a curative instruction or a mistrial.
310 Or App at 28. I see no evidence of a strategic choice, just
oversight. Similarly, I cannot conclude that defendant may
not have wanted to “highlight the prosecutor’s argument
with an instruction addressing it right before the case went
to the jury.” Id. In the context of this trial—primed for a
compromise verdict—there could be little more damaging to
a defendant than allowing the jury to evaluate reasonable
doubt in terms of whether he “should not reside with an adolescent girl.” I would, therefore, take the admittedly unprecedented step to exercise discretion to correct the error.
          I respectfully dissent.




   feelings, and several began to believe that the evidence was simply lacking.
   … Not every count received individual attention, and the ones which did,
   did not have the required 10 of 12 votes.”