State v. Hernandez-Sanchez

                                       231

 Submitted May 31, 2018; convictions on Counts 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 13,
    and 14 reversed and remanded for resentencing, otherwise affirmed
                              March 31, 2021


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                 LUIS HERNANDEZ-SANCHEZ,
                      Defendant-Appellant.
                 Washington County Circuit Court
                      C152335CR; A162764
                                   

    Defendant appeals a judgment of conviction for two counts of first-degree sodomy, ORS 163.405 (Counts 1 and 2); two counts of first-degree rape, ORS 163.375
(Counts 3 and 4); three counts of first-degree unlawful sexual penetration, ORS
163.411 (Count 5, 8, and 9); and six counts of first-degree sexual abuse, ORS
163.427 (Count 6, 7, 10, 11, 13, and 14). The trial court dismissed one count of
coercion (Count 12) before trial, and the jury returned nonunanimous verdicts
on all the remaining counts, except Count 6. Defendant first challenges the trial
court’s in camera review of confidential records from the Department of Human
Services (DHS). Defendant argues that the trial court may not have disclosed all
potentially exculpatory evidence following three in camera reviews, and requests
that the Court of Appeals perform its own in camera inspection. Next, defendant
argues that the trial court plainly erred by instructing the jury that it could
return a nonunanimous jury verdict. Held: The Court of Appeals reviewed the
record de novo and concluded that there was no further evidence that required
disclosure to defendant. With regard to the nonunanimous verdicts, the court
used its discretion to review the error as plain for the reasons expressed in State
v. Ulery, 

, 

 (2020), and concluded that the trial
court erred.
   Convictions on Counts 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 13, and 14 reversed and
remanded for resentencing; otherwise affirmed.



    Janelle F. Wipper, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Mary M. Reese, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Shannon T. Reel, Assistant Attorney
General, filed the brief for respondent.
  Before Shorr, Presiding Judge, and Egan, Chief Judge,
and Bunch, Judge pro tempore.
232                            State v. Hernandez-Sanchez

  EGAN, C. J.
   Convictions on Counts 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 13,
and 14 reversed and remanded for resentencing; otherwise
affirmed.
Cite as 

 (2021)                                         233

          EGAN, C. J.
         Defendant appeals a judgment of conviction for two
counts of first-degree sodomy, ORS 163.405 (Counts 1 and 2);
two counts of first-degree rape, ORS 163.375 (Counts 3
and 4); three counts of first-degree unlawful sexual penetration, ORS 163.411 (Count 5, 8, and 9); and six counts of
first-degree sexual abuse, ORS 163.427 (Count 6, 7, 10, 11,
13, and 14).1 The jury returned nonunanimous verdicts on
all counts except Count 6.
         In his third assignment of error, defendant argues
that, in light of Ramos v. Louisiana, 

, 

, 

 (2020), the trial court plainly erred
by instructing the jury that it could return a nonunanimous jury verdict. The state concedes that the defendant’s
convictions resulting from nonunanimous verdicts require
reversal. We agree and, for the reasons expressed in State
v. Ulery, 

, 

 (2020), exercise
our discretion to reverse and remand all of defendant’s convictions except the conviction on Count 6. As for Count 6, we
reject defendant’s structural error argument for the reasons
set forth in State v. Flores Ramos, 

, 

 (2020).
          In his first assignment of error, defendant argues
that the trial court may not have disclosed all potentially
exculpatory evidence following three in camera reviews
of confidential records from the Department of Human
Services (DHS), and asks us to conduct our own in camera
review for exculpatory evidence. On review of the undisclosed DHS records, we conclude that the court did not err
in its in camera review. We reject defendant’s second assignment of error without written discussion.
         Turning to the procedural history of this case,
defendant’s stepdaughter, M, alleged that defendant sexually abused her multiple times from ages five to 12. In
2008, a sexual-abuse incident was reported, and an investigation followed. M’s disclosures during her CARES examination were inconsistent, and the allegation was deemed

    1
      Defendant was also indicted for one count of coercion (Count 12), ORS
163.275. However, the trial court dismissed that count before trial.
234                             State v. Hernandez-Sanchez

unfounded. Several years later, in September 2015, M told
her friend, via text message, that defendant had attempted
to sexually abuse her again the night before. M did not want
to tell anyone, but the parents of M’s friend found the texts
and reported the incident to the police.
        A detective and a DHS worker interviewed M, and
M recounted years of defendant sexually abusing her, beginning with defendant touching M’s private areas over her
clothing. That sexual abuse escalated to defendant touching M’s private areas under her clothing, eventually leading
to defendant penetrating M’s vagina and mouth with his
hands, mouth, and penis. As a part of the incident in 2015,
another CARES investigation was initiated, and defendant
was indicted for the above-stated crimes.
         During pretrial discovery, defendant moved the
trial court to issue a subpoena duces tecum requiring DHS
to produce records related to the 2008 and 2015 assessments concerning defendant and M. The court granted the
motion and the next day the state moved to quash or, in
the alternative, have the trial court perform an in camera
inspection. Thereafter, the court made its first in camera
review, in which it disclosed a portion of redacted records to
the parties.
         Several weeks later, defendant filed a demand for
the disclosure of discovery for “[a]ny records in the possession of DHS that are required to be disclosed pursuant to
[State v. Wood, 

, 

, rev den, 

 (1992)].” The state opposed the motion as overly broad.
On the next day, defendant moved for an order, allowed by
ORS 33.055(2)(a), requiring the legal coordinator for DHS to
appear and explain why DHS was not in contempt.
         Several days later, defendant moved the trial court
for authorization to issue another subpoena duces tecum for
pretrial production of DHS records related to M. The court
held a hearing on defendant’s motion for DHS to show cause
why it was not in contempt. The court did not conclude that
DHS was in contempt, but ordered:
   “[DHS] must provide a complete and unredacted copy of
   [DHS] records in this matter including but not limited
Cite as 

 (2021)                                                 235

    to: assessments, case notes, case plans, child specific case
    plans, permanency plans and all documents in the filing
    cabinet which may include treatment records, counseling
    records, court orders and letters to [the court] no later than
    5:00 p.m. on June 1, 2016 for purposes of in camera review.”
Shortly thereafter, the court disclosed an unredacted portion of the records to the parties as a result of its second in
camera review.
         On the first day of trial, the trial court held an OEC
104 hearing to determine whether a possible false allegation
of abuse from M against her school counselor would be admissible. During the hearing, both M and her foster mother testified about a time that M’s school counselor offered to be her
foster parent and touched M’s leg and shoulder, making M
uncomfortable. The trial court ruled that the incident with
the school counselor was not an allegation of sexual abuse,
let alone a false allegation of sexual abuse. The court also
conducted a third and final in camera inspection and disclosed four more pages of unredacted DHS case notes to the
parties.
        After a jury trial, defendant was found guilty on all
counts, and this appeal followed.
        Defendant, in his first assignment of error, requests
that we review the confidential DHS records to look for
exculpatory evidence—in particular, evidence that defendant could use to impeach the credibility of M—that is
required to be disclosed under the Due Process Clause of the
Fourteenth Amendment to the United States Constitution.2

    2
      Although defendant also relies on the compulsory process clauses of the
Sixth Amendment to the United States Constitution and Article I, section 11, of
the Oregon Constitution, the only relevant constitutional provision here is the
Due Process Clause. The United States Supreme Court so decided, as to the Sixth
Amendment, in Pennsylvania v. Ritchie, 

, 

, 

 (1987), and we concurred, as to Article I, section 11, in State v. Zinsli, 

, 

, rev den, 

 (1998) (compulsory process
review “is absorbed into the due process analysis” of the Fourteenth Amendment).
In any event, even if the state and federal compulsory process clauses were independently relevant, “[t]he right to compulsory process under Article I, section 11,
parallels Sixth Amendment jurisprudence, State v. Mai, 

, 

 (1982), and the analysis of the two constitutional provisions is the same.”
State v. Wixom, 

, 

 (2015), rev den, 

(2016).
236                                       State v. Hernandez-Sanchez

The state responds that it “does not oppose defendant’s
request to have [us] review the sealed records in camera, as
limited by defendant’s discovery request at the trial level.”3
We review de novo. State v. Leslie, 

, 

, rev den, 

 (1993) (not stating, but applying that standard). State v. Lombardi, 

,

, rev den, 

 (2000) (same).
         We have reviewed the record and conclude that there
is no further evidence that requires disclosure to defendant.
In making that conclusion, we rely on Brady v. Maryland,

, 

, 

 (1963), where the
United States Supreme Court stated that the prosecution’s
failure to disclose “evidence favorable to an accused …
violates due process where the evidence is material either
to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.” See State v. Warren, 

, 

 (1987) (explaining that, concerning a defendant’s discovery right to evidence available to the
prosecution, Brady provides that the Due Process Clause
prohibits a prosecutor from withholding evidence favorable
to the defense). After the Court decided Brady, it clarified
that, for a “true Brady violation” to occur, the undisclosed
evidence must be “favorable to the accused, either because
it is exculpatory, or because it is impeaching; that evidence
must have been suppressed by the State, either willfully or
inadvertently; and prejudice must have ensued.” Strickler v.
Greene, 

, 

, 

(1999). In our review, we conclude that the undisclosed evidence was either not relevant or not prejudicial. Accordingly,
the trial court did not err in its in camera review.
        Convictions on Counts 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 13,
and 14 reversed and remanded for resentencing; otherwise
affirmed.


     3
       Although the state does not challenge defendant’s request for an in camera
review, we note that defendant provided us with adequate grounds for us to perform a meaningful review, as required by State v. Weaver, 

,

, rev den, 

 (1996). Specifically, the potential evidence that
defendant describes as favorable to him are inconsistent statements by M about
sexual abuse, contradictory actions by M, contradictory statements by M’s family, and recantations by M.