37
Argued and submitted November 10, 2021, affirmed September 28, 2022, petition for review denied February 9, 2023 (
370 Or 740)
STATE OF OREGON,
Plaintiff-Respondent,
v.
TERRY DAVID POWELL,
Defendant-Appellant.
Marion County Circuit Court
18CR07233; A172668
518 P3d 949
Defendant was convicted of six counts of first-degree sexual abuse (ORS
163.427), all of which involved abusing his stepdaughter over a period of time.
He appeals from the judgment of conviction, arguing that the trial court erred by
sua sponte replacing his appointed counsel, denying his motion to postpone trial,
and granting the state’s motion to exclude evidence. Held: (1) Defendant did not
preserve his argument regarding substitution of counsel, (2) the trial court did
not abuse its discretion when it denied defendant’s last-minute motion to postpone, and, finally, (3) the trial court did not err in granting the state’s motion to
exclude evidence that the victim had lied on other occasions when confronted by
her mother about issues the victim was having at school. The exclusion of that
evidence was appropriate because the inference that defendant would ask the
factfinder to draw from it—that the victim was lying when she accused defendant
of abusing her—required propensity-based reasoning.
Affirmed.
Sean E. Armstrong, Judge.
David L. Sherbo-Huggins, 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 Mooney, Presiding Judge, and Pagán, Judge, and
DeVore, Senior Judge.*
______________
* Pagán, J., vice DeHoog, J. pro tempore.
38 State v. Powell
MOONEY, P. J.
Affirmed.
Cite as 322 Or App 37 (2022) 39
MOONEY, P. J.
Defendant was charged with sexually abusing his
stepdaughter, A, and later convicted of six counts of first-degree sexual abuse (ORS 163.427). He appeals from the
judgment of conviction, asserting that the trial court erred
by (1) sua sponte replacing his appointed counsel, (2) denying his motion to postpone trial, and (3) granting the state’s
motion “to exclude evidence that around the time of the
accusations, [the victim] had been lying about issues she
was having at school and time she was spending with her
cousins.” For the reasons that follow, we affirm.
TIMELINE & PROCEDURAL BACKGROUND
We begin with a basic timeline of significant procedural events:
• January to October 2018: Defendant is indicted, he
retains counsel, pleads not guilty, and the trial date
is set for December 19.
• October 17: Defendant’s retained counsel withdraws, and the trial court appoints new counsel.
• November 30: Defendant files his first motion to
postpone trial.
• December 10: The trial court denies postponement.
• December 14: Defendant files his second motion to
postpone trial, and the trial court grants defendant’s motion.
• December 19: The trial court issues a scheduling
order and sets trial for February 26.
• February 22, 2019: Defendant makes a third motion
to postpone trial, and the trial court denies that
motion from the bench.
• February 25: Defendant files Reply to State’s Motion
to Exclude, raising the issue of post-traumatic stress
disorder (PTSD) and the need for expert testimony.
• February 26: Defendant’s trial begins, the trial
court replaces defense counsel, and defendant’s
trial is reset for September.
40 State v. Powell
• September 2019: Defendant waives his right to a
jury, proceeds with a bench trial, and is convicted
on all counts.
We describe defendant’s three requests for postponement of trial in a bit more detail. The first request was
made by written motion; it was opposed by the state and
denied by the trial court. The second request was made less
than a week before the December trial date and only four
days after the first motion was denied. The state continued
to oppose a trial set-over, but the court granted the renewed
motion “based on what the Court heard in chambers.” The
trial set-over provided the parties an additional ten weeks to
prepare, and the court issued a scheduling order to “ensure
pre-trial procedural matters are completed timely and both
parties have equal time to present evidence.” The third
request for postponement was made by oral motion on the
Friday before the Tuesday trial was to begin. That motion
was again opposed by the state and denied by the trial court
at that hearing.
On the morning set for trial, the trial court began
with pretrial matters and, during that initial proceeding,
engaged defense counsel in a colloquy about his noncompliance with the court’s scheduling order. Defense counsel
explained that his failure to comply with the scheduling
order was because he did not have enough time to prepare for
trial. And that lack of time to prepare, he argued, resulted
in his first raising his client’s PTSD and competency, and
his need to call Dr. Stanulis to address those issues, in a
pleading that he filed close to midnight the night before
trial. Defense counsel explained:
“[The expert] specializes in … veterans. So when we have
a veteran case and issues, we usually go to [that expert].
State didn’t get to choose who his expert is. And, you know,
if that expert is so slammed and his attorney’s so slammed
that we can’t do things in—as early as we’d like to sometimes that happens. But I—I felt—”
The state objected to the proposed expert testimony, contending that defense counsel had previously indicated he
would not be calling Stanulis as a witness and that he only
raised the need to call him as a tactic to delay trial. The
Cite as 322 Or App 37 (2022) 41
court asked defense counsel if he was “too busy to represent [defendant],” to which counsel replied, “I might be.” The
court then sua sponte indicated that it would replace defense
counsel with another lawyer. Defense counsel advised the
court that he would “be happy to stay on” as counsel for
defendant. But the court deferred ruling on pre-trial motions
and set the matter out for trial to allow a new lawyer time
to prepare. The court later signed an order, consistent with
its oral ruling, removing defense counsel and replacing him
with a different lawyer.
THE COURT’S SUBSTITUTION OF COUNSEL
We begin with the first assignment of error—that
the court erred in sua sponte replacing defendant’s appointed
counsel—and we reject it as unpreserved. “The general
requirement that an issue, to be raised and considered on
appeal, ordinarily must first be presented to the trial court
is well-settled in our jurisprudence.” Peeples v. Lampert, 345
Or 209, 219,
191 P3d 637 (2008). Relying on State v. Barajas,
247 Or App 247,
268 P3d 732 (2011), defendant argues that
he preserved his argument because it was futile for defense
counsel to object to his replacement.
In Barajas, we held that the failure to expressly
object to the trial court’s unilateral denial of the defendant’s
right to present closing argument did not serve to waive the
issue for appellate review. Id. at 253. In that case, defense
counsel attempted to give a closing argument but was interrupted twice by the court when doing so and prohibited from
continuing.
Id. at 250. As we explained:
“[T]he trial court summarily announced that it was ‘going
to waive closing argument’ and began stating its findings, and it did so only moments after it had denied the
prosecution the right to cross-examine a defense witness.
Defendant attempted to present argument concerning her
view of the facts, and that attempt was cut off. Defendant’s
argument made it clear that she wanted to be able to present her view of the evidence. To be sure, defendant did not
expressly tell the trial court that she wished to present a
closing argument and that she had a right to do so. Under
the circumstances, though, defendant had no real opportunity to make further objection.”
42 State v. Powell
Id. at 252. That was so because the trial court simultaneously raised the issue of closing argument and denied any
opportunity for closing arguments, without allowing the
parties any meaningful opportunity to object.
Id.
Barajas is distinguishable and does not support
defendant’s preservation argument here. Interrupting defense
counsel and denying her the opportunity to make a closing
argument after she made clear that she wanted to present
her view of the evidence to the court is very different than
proceeding to replace defense counsel after counsel advised
the court that he would be “happy to stay on” as defendant’s
lawyer, if he could have more time to prepare for trial. An
indication that he would be happy to remain as defense
counsel did not provide notice to the state or to the court of
the arguments defendant makes for the first time on appeal
concerning consultation with the Office of Public Defense
Services (OPDS) and any federal or state constitutional right
to “continuity of counsel.” Without notice, the state did not
have the opportunity to present its position on those issues
and the record was not developed as it might otherwise have
been. The lack of notice is procedurally unfair because the
court did not have the benefit of hearing from both sides so
that it might correct any error, thereby obviating the need
for an appeal on that issue. And “procedural fairness to the
parties and to the trial court” is the “touchstone” of preservation. Peeples, 345 Or at 220. Defendant did not preserve
the first assignment of error.
Defendant argues that, even if not preserved, the
court’s sua sponte decision to replace counsel constitutes
plain error because ORS 135.050(6) requires the trial court
to consult with the OPDS before doing so.1 Plain error
review requires us to determine, first, whether the error
is plain, and second, whether to exercise our discretion to
consider the error. Ailes v. Portland Meadows, Inc., 312 Or
376, 381-82,
823 P2d 956 (1991). To be plain, the error must
(1) be an error of law, (2) be obvious and not reasonably in
dispute, and (3) be “apparent on the record without requiring the court to choose among competing inferences.” State
v. Vanornum,
354 Or 614, 629,
317 P3d 889 (2013).
1
ORAP 5.45(1) allows us to “consider a plain error.”
Cite as 322 Or App 37 (2022) 43
ORS 135.050(6) provides:
“Unless otherwise ordered by the court, the appointment
of counsel under this section shall continue during all
criminal proceedings resulting from the defendant’s arrest
through acquittal or the imposition of punishment. The
court having jurisdiction of the case may not substitute one
appointed counsel for another except pursuant to the policies, procedures, standards and guidelines of the Public
Defense Services Commission under ORS 151.216.”
The relevant OPDS rules are in the Public Defense Payment
Policies and Procedure (19th rev) (effective Sept 1, 2019).
Those rules provide, as relevant:
Ҥ 1.7.1 Need for consultation with OPDS
“A. court may substitute one appointed counsel for
another only when:
“1. In the exercise of its discretion, the court
determines that appointed counsel who is seeking
to withdraw cannot ethically continue to represent
the client and except as describes in Section 1.7.2
The court consults with OPDS regarding counsel
to whom the case will be assigned [sic], or
“2. In other circumstances, when the interests
of justice so require, and after consultation with
OPDS regarding the need for substitution of counsel and counsel to whom the case is assigned.
Ҥ 1.7.2 Reassignment within Public Defender Office, Law
Firm or Consortium
“The court does not need to consult with OPDS regarding
the substitution of counsel if appointed counsel and counsel
to whom the case will be reassigned are part of the same
public defender office, law firm or consortium under contract with the PDSC.
“…
Ҥ 1.7.4 Consultation Regarding Substitution of Case
Types
“Consultation between the court and OPDS may include
discussion of the procedure for handling substitution in a
category of case types as well as the procedure in an individual case.”
44 State v. Powell
(Boldface omitted.) Those rules are notably embodied in a
set of policies and procedures concerning payment for legal
services provided by court-appointed counsel. Sections
1.7.2 and 1.7.4 highlight defendant’s preservation problem because, having not raised the issue in the trial court,
the record does not reflect whether the substituted lawyer
was in the same office or consortium as the replaced lawyer and, thus, excepted from the consultation requirement,
or whether this was the type of case for which a generalized consultation had already occurred and been resolved.
Defendant argues that the court’s “unilateral decision” to
order replacement counsel “strikes at the heart of an independent public defense delivery system” and highlights the
problem that OPDS was created to avoid. But the record
does not support that argument. It is not obvious that a consultation requirement applied given the limited record. We
are also not satisfied that any constitutional right to continuity of counsel is well enough established to be obvious and
not open to reasonable dispute. Any error is not plain.
DENIAL OF DEFENDANT’S SECOND
MOTION TO POSTPONE
We now turn to the second assignment of error—
denying defendant’s February 22, 2019, motion to postpone
trial—and, for the reasons that follow, we reject it. A motion
to postpone trial date is left to the sound discretion of the
trial court, and we defer to such a ruling unless the court
has gone outside the permissible limits of its discretion.
State v. Wolfer, 241 Or 15, 17,
403 P2d 715 (1965); State v.
Gale,
240 Or App 305, 310,
246 P3d 50 (2010). We defer to
the trial court’s ruling on a motion to postpone because of
“the familiarity of the trial court with all of the circumstances surrounding the making of such a motion and the
consequences of granting it.” Gale,
240 Or App at 310. In
exercising its discretion, the trial court balances the many
demands associated with managing multiple dockets, the
defendant’s interest in having his lawyer adequately prepared, the victim’s interest in timely resolution and avoiding
the stress that accompanies trial preparation activities, and
the state’s interest in expeditiously bringing the case to final
resolution. The balancing of those interests is best suited to
Cite as
322 Or App 37 (2022) 45
the trial court and we, therefore, generally do not “secondguess” a trial court’s denial of a motion for postponement
or continuance. State v. Kindler,
277 Or App 242, 250,
370
P3d 909 (2016). Instead, we review those rulings for abuse of
discretion.
Id. There are limits to discretion, of course. See,
e.g., Kindler,
277 Or App at 251 (trial court erred in denying
postponement in case where the defendant was arraigned
just minutes before the omnibus hearing and trial); State
v. Hickey,
79 Or App 200, 203-04,
717 P2d 1287 (1986) (trial
court erred in denying defendant’s motion for a continuance
made on the day of trial after defense counsel’s briefcase,
which included his entire trial file, had been stolen the previous night). But this is not a case where the court went
beyond the limits of discretion in denying a continuance.
Counsel was appointed to represent defendant in
mid-October 2018. The trial was set for mid-December.
Although the court denied defendant’s first motion to postpone the trial date, it granted the second motion to postpone
just four days later and set the trial date out another 10
weeks. The court also issued a scheduling order to facilitate trial readiness through a structured schedule with
deadlines. Defense counsel did not comply with that order.
Under those circumstances, we cannot say that the trial
court exceeded the limits of its discretion when it denied the
motion to postpone made in February, just four days before
trial was to begin.
THE MOTION TO EXCLUDE
Moving now to the third assignment of error, we
review the trial court’s exclusion of evidence for errors of law.
State v. Prange, 247 Or App 254, 260,
268 P3d 749 (2011).
The case was called for trial in September. Defendant
waived his right to a jury, and the court took up the pretrial
matters that it had previously deferred. Defendant no longer planned to call Stanulis as an expert witness, and the
only remaining substantive pretrial issue was the state’s
motion to exclude certain testimony from A’s mother. That
motion was prompted by a statement contained in a report
prepared by defendant’s investigator, and produced in discovery, that “[r]ecently, [A] has lied to [mother] at least a few
46 State v. Powell
times regarding issues [A] was having at school and time
[A] was spending with her cousins.” It was because A’s original disclosure of abuse was made in a conversation initiated
by A’s mother to discuss A’s difficulties at school that the
state filed its precautionary motion.
The state argued that “[i]f the defense intends to
ask [A’s] mother about [A’s] credibility,” OEC 6082 confines
defendant to eliciting testimony from mother about A’s reputation for untruthfulness, or mother’s opinion about A’s
character for untruthfulness. And, further, that the rule
prohibits evidence of specific instances of A’s conduct coming in during any testimony that A’s mother might provide
in the form of reputation or opinion.
Defendant opposed the motion relying on his previously filed memorandum, taking the position that “the evidence was relevant to the victim’s self-interest and motive
under OEC 609-13 and OEC 404(3).” 4 In particular, defendant argued:
“[A] had a clear self-interest in making the accusations to
deflect attention from her mother’s repeated questioning
about her performance in school. The accusations could
also have been made as a result of additional pressure from
2
OEC 608 provides:
“(1) The credibility of a witness may be attacked or supported by evidence, in the form of opinion or reputation, but:
“(a) The evidence may refer only to character for truthfulness or untruthfulness; and
“(b) Evidence of truthful character is admissible only after the character
of the witness for truthfulness has been attacked by opinion or reputation
evidence or otherwise.
“(2) Specific instances of the conduct of a witness, for the purpose of
attacking or supporting the credibility of the witness, other than conviction
of crime as provided in ORS 40.355, may not be proved by extrinsic evidence.
Further, such specific instances of conduct may not, even if probative of
truthfulness or untruthfulness, be inquired into on cross-examination of the
witness.”
3
Defendant did not, and does not, develop an argument under OEC 609-1.
4
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.”
Cite as 322 Or App 37 (2022) 47
her mother concerning recent lies about her school performance and time [she] was spending with her cousins. Both
are reasons for [A] to make false, misleading, or exaggerated statements.”
Defense counsel supplemented the written reply by explaining that A’s earlier accusations showed that she had a plan
or motive to be untruthful when confronted about school.
When asked by the court to make the connection between
A’s lies and this case, counsel explained:
“The connection is that when she is confronted with her
behavior at school, she lies. When she’s confronted about
her behavior at school, she tells this story about my client,
[defendant]. It’s in a—it’s in a series of daughter gets confronted, daughter lies. One of those lies, from our position,
is the accusations she brought against [defendant].”
The colloquy continued with this discussion:
“THE COURT: It sounds like you want to offer that to
show that she’s acting in conformity with her prior way of
behaving, which is to lie when she gets in trouble.
“[DEFENSE COUNSEL]: Specifically around school.
“THE COURT: Isn’t that inadmissible?
“[DEFENSE COUNSEL]: What’s that?
“THE COURT: Isn’t that inadmissible character evidence?
“[DEFENSE COUNSEL]: No. Believe that it’s admissible
to show—you know, the list is motive, opportunity, intent,
preparation, plan, but those aren’t an exclusive list. Those
are examples of how a person chooses to act, and here it’s
part of her—it’s like a preparation, it’s like a plan. ‘If I get
confronted about what I’m doing at school, I’m coming up
with another story.’ Unfortunately, one of those stories, one
of those lies dragged [defendant] into it.
“THE COURT: So the plan is ‘When I get in trouble, I’m
going to make up false allegation of sex abuse against my
stepfather’?
“[DEFENSE COUNSEL]: Or some other lie.
“THE COURT: Okay. That’s why that’s admissible?
“[DEFENSE COUNSEL]: That’s our position, Your Honor.”
48 State v. Powell
The state argued, essentially, that defendant’s proposed use of A’s past instances of being untruthful would
invite the factfinder to draw an inference that A lied about
defendant abusing her when her mother confronted her
about her school issues—an improper inference because
it requires propensity reasoning. When the court pressed
defense counsel on what authority he had for the disputed
testimony to come in, this discussion occurred:
“THE COURT: What rule of evidence would have let you
allow Mother’s testimony about [A lying when confronted
about school] into the record?
“[DEFENSE COUNSEL]: 404(3): Evidence of other crimes,
wrongs, or acts not permitted to show character, but permitted to show motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake.
“THE COURT: Do you have anything in the statement,
other than your assertion that there’s a link between the
allegations she made against [defendant] and her poor performance in school, to suggest that that’s why she did that?
“[DEFENSE COUNSEL]: No.
“THE COURT: Okay. It’s just a theory that maybe when
confronted, she’s lied in the past about school and her cousins. And on this particular occasion, the lie she chose to tell
was to implicate [defendant] in a crime?
“[DEFENSE COUNSEL]: That—that’s correct. We’re not
calling it a theory, we’re calling it a pattern. I mean, she—
she keeps doing it.
“THE COURT: When you use the word ‘it,’ what you
mean is that she keeps lying—
“[DEFENSE COUNSEL]: Lying.
“THE COURT: Okay. But what is the character of the
other lies that she’s told as far as you know?
“[DEFENSE COUNSEL]: I don’t know.”
The court granted the motion “based on that offer of proof”
and invited counsel to raise the issue again should that
become necessary during trial.
Once trial was underway, evidence was received
and developed that A was having behavioral problems at
Cite as 322 Or App 37 (2022) 49
school and that she disclosed defendant’s abuse in response
to being confronted about those school issues. However, the
court’s pretrial ruling prevented the introduction of evidence that A had lied on other occasions when confronted
about her school issues.
Defendant did not, at any time, seek to offer the disputed testimony under OEC 608. When specifically questioned by the court about his authority for the anticipated
testimony, counsel did not propose to offer it in the form of
opinion or reputation evidence pertaining to A’s character for
truthfulness or untruthfulness. Instead, he sought to offer
testimony about past instances when A lied to her mother
in the context of mother confronting A about school to show
that A had a “motive” to lie whenever her mother confronted
her about school issues. According to defendant, the purpose
of offering evidence of that “pattern” of lying would be to
show A’s “motive” to lie in that situation and that when A
was again confronted by her mother about school, A falsely
accused her stepfather of abusing her. Defendant argued
that the testimony should be allowed under OEC 404(3)
because it was to be offered as nonpropensity evidence of
motive. In defendant’s view, testimony that A reacted to
being confronted about her performance in school by lying
about others shows a “motive” to accuse others in order to
deflect attention away from her herself when being questioned by her mother.
Having clarified that defendant intended to rely on
OEC 404(3) in support of the disputed testimony, the state
argued that the testimony would be inadmissible under
OEC 404(2), which provides, in part:
“Evidence of a person’s character is not admissible for the
purpose of proving that the person acted in conformity
therewith on a particular occasion[.]”
Defendant argues that OEC 404(3) permits the testimony
because it would be offered to show motive and not to prove
character. He points to Prange as support for the admissibility of mother’s statements because they are “[e]vidence of
an accuser’s motivation to make a false allegation,” and, as
such, are evidence of motive, and therefore not character evidence. We concluded in Prange that evidence of “hostilit[ies]”
50 State v. Powell
between the victim and the defendant’s stepdaughter were
relevant to bias and, therefore, could be admitted to show
“the motive for the victim’s accusation that defendant shot
the victim’s house with a pellet gun.” Prange, 247 Or App at
263.
This case is distinguishable from Prange. In
Prange, the disputed evidence was of a high level of hostility
between defendant’s stepdaughter and the victim’s wife and
was offered to show that the victim had a motive to make a
false accusation against defendant. Id. As we explained:
“Although some inferences are required to connect that
previous dispute to the victim’s attitude toward defendant,
the inferences are permissible. A jury could reasonably
infer that, in light of the familial relationships among the
persons involved—that is, between the victim and his wife
and between defendant and his stepdaughter—that the
victim had reason to be biased against defendant. From
that, a jury could infer that the victim’s account was less
credible than it would have been in the absence of evidence
of the earlier dispute.”
Id. at 262. The facts here are different. Defense counsel
did not mention evidence of hostility between A and defendant. Without some tension directly between A and defendant, defendant cannot establish any motive on the part
of A to falsely accuse defendant of abusing her. And without a motive, the argument that because A had previously
lied when confronted about school, she must have lied this
time is inadmissible character evidence because it requires
propensity reasoning—that is, she lied before, so she must
have lied this time. OEC 404(3) bars the use of propensity
evidence. See State v. Skillicorn,
367 Or 464, 476,
479 P3d
254 (2021) (“If the proponent’s theory of relevance requires
the factfinder to employ propensity reasoning, then the trial
court cannot admit the evidence* ….”). The trial court did
not err in excluding evidence of A’s previous lies.
Affirmed.
