553
Argued and submitted October 27, 2021, affirmed January 5, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
NOAH JONATHAN POWERS,
fka Noah Harouff,
Defendant-Appellant.
Marion County Circuit Court
18CR51360; A172142
523 P3d 1112
Defendant appeals from a judgment of conviction for four sexual offenses
involving his stepdaughter. In his first assignment of error, defendant asserts
that the trial court erred when it admitted court-certified copies of defendant’s
2006 convictions for attempted sexual abuse against another stepdaughter from
an earlier relationship, H, and testimony from H about her age and relationship to defendant at the time of the offenses. The court ruled that that evidence
was admissible under OEC 404(3) to prove that defendant acted “intentionally”
and under OEC 404(4), to prove his “sexual interest in children.” Defendant
next assigns error to the trial court’s ruling limiting his cross-examination of
the victim’s mother. He contends that his questions were permissible bases for
testing mother’s credibility and potential biases and would have produced evidence critical to his theory of defense. In his third assignment of error, defendant argues that the trial court erred in allowing portions of the mother’s testimony on the grounds that it was irrelevant, and, even if marginally relevant,
unduly prejudicial under OEC 403. Defendant also argues that the trial court
erred in overruling defendant’s relevance objection to evidence that defendant
had hired a handwriting expert who ultimately testified for the state on rebuttal.
Held: First, although the trial court erred in admitting evidence of defendant’s
prior bad acts under OEC 404(3), it did not err or abuse its discretion in admitting
the evidence under OEC 404(4). The underlying offenses and the children’s ages
and relationships to defendant were very similar, the state needed the evidence
to show that defendant acted with a sexual purpose because defendant disputed
that he had ever touched L with a sexual purpose, and the court made use of a
limiting instruction. Considering those factors, the trial court reached a permissible conclusion under OEC 403 in allowing the use of propensity evidence. As to
defendant’s second assignment of error, the trial court did not commit reversible
error by limiting defendant’s cross-examination of mother because defendant did
not demonstrate that he was prejudiced by any error. As to defendant’s third
assignment of error, the court did not legally err in concluding that the disputed
portions of the mother’s testimony were relevant under OEC 401, nor did it abuse
its discretion in admitting that evidence over defendant’s OEC 403 objection.
Finally, even assuming that the court erred by admitting evidence that defendant had hired the expert, there was little likelihood that the jury’s verdicts on
any of the charges were affected by that error.
Affirmed.
554 State v. Powers
Sean E. Armstrong, Judge.
David O. Ferry, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Michael A. Casper, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
SHORR, J.
Affirmed.
Cite as 323 Or App 553 (2023) 555
SHORR, J.
Defendant appeals from a judgment of conviction
for four sexual offenses involving his stepdaughter. On
appeal, he argues that the trial court committed various
evidentiary errors and erroneously instructed the jury that
it could return a nonunanimous guilty verdict. For the reasons that follow, we affirm.
I. BACKGROUND
Because defendant’s various assignments of error
implicate different standards of review and require us to
apply different lenses to the record, we begin with a general overview of the history of the case and provide additional detail within our analysis of particular assignments
of error.
The charges in this case followed a disclosure of
abuse made by defendant’s stepdaughter, L, when she was
11 years old. At the time of that disclosure, L lived with
her mother and defendant, who were married; L’s mother
(mother) also had an older daughter, W, from a previous
marriage who lived primarily with her biological father but
also spent time at mother’s house. L disclosed the abuse to
mother and W in 2018 by handing them a handwritten note
that said defendant had raped her.
L was later interviewed at Liberty House, a child
abuse assessment center, and she described sexual abuse
that occurred while defendant was home alone with her.
She disclosed that defendant “tried” to put his penis in her
vagina and butt. During the interview, L referred to additional handwritten notes describing abuse by defendant.
Following L’s disclosures, defendant was charged
with one count of first-degree unlawful sexual penetration
for penetrating L’s vagina with his finger, one count of first-degree sodomy for engaging in anal sexual intercourse with
L, one count of attempted first-degree rape for attempting to
engage in sexual intercourse with L, and one count of first-degree sexual abuse for touching L’s genitals.
Much of the pretrial litigation involved the fact that
defendant had been convicted of sexual abuse of a different
556 State v. Powers
stepdaughter during a previous relationship—a fact that
was known to L and others by the time of L’s disclosure.
Those prior convictions had been uncovered earlier by W’s
father (mother’s ex-husband) and were shared through an
anonymous account via Facebook shortly after defendant’s
and mother’s wedding. Someone (who defendant believed
to be mother’s ex-husband) also initiated Department of
Human Services (DHS) investigations of defendant and
mother’s family before L’s disclosures. Defendant’s theory
was that mother’s ex-husband had turned W against him,
leading L to falsely accuse him of abuse. Defendant filed
motions to compel production of the records of the earlier
DHS investigations and handwriting samples from L and
W based on defendant’s suspicion that L’s notes describing
abuse were “secretly written by the older sister.” The court
ultimately granted defendant’s motions for in camera review
of the DHS records from 2017 and 2018, and the court
required L to provide a handwriting exemplar.
The state, meanwhile, filed a pretrial motion to admit
evidence of defendant’s earlier convictions. The state argued
that the prior convictions, which resulted from a guilty
plea, and the facts underlying those convictions, were relevant and admissible as evidence of motive, intent, plan, and
absence of mistake or accident, and, separately, as evidence
of defendant’s sexual propensity towards children. The trial
court granted the state’s motion but only in part: It ruled
that the state could admit court-certified copies of defendant’s 2006 convictions for attempted sexual abuse, but that
the victim in that case, H, could testify only as to her age
and her relationship to defendant at the time of the offenses,
not the details of the abuse.
At trial, the state’s first witness was H, and the
state’s evidence regarding the prior convictions was limited
to what the court allowed pretrial. A copy of the judgment of
convictions was offered and admitted, and H testified that
the counts for which defendant entered guilty pleas were for
acts that occurred in 2003 and 2004 when she was 13 or 14,
at which time she was defendant’s adopted daughter. That
was the entirety of H’s testimony.
The state then called L, who was 12 at the time of
trial. She testified that defendant first abused her when he
Cite as 323 Or App 553 (2023) 557
took her on a camping trip, but she could not remember the
year. She testified that the same type of abuse then continued after the camping trip when they were home alone,
while her mother was taking classes on Monday nights.
Specifically, she testified that defendant would try to put
his fingers in her vagina and that they were “partially in,
but not completely.” She testified that it felt like “a lot of
pressure against my skin” and that it hurt.
L further testified that defendant would try to put
his penis in either her butt or her vagina, and that her
clothes would be “pulled down or scooted aside.” She testified that defendant would sit on her back and play with his
penis, and that there was often pornography on a TV in the
background while the abuse was happening. L described
a specific incident in which she was “sick and half asleep”
when defendant touched her butt.
L also described the circumstances in which she
first disclosed the abuse. She testified that she had gotten in
trouble and had been forced to weed strawberries as punishment while defendant, mother, and W had gone to the store.
She testified that, when they returned and were upset that
she had not finished weeding, she showed her mother and
sister a note that she had written while they were gone; that
note stated that defendant had “raped me!” and pleaded for
help from her mother and sister. L also testified about, and
the state introduced, two other notes that she had written
describing abuse, but L could not recall whether she had
written those notes for her mother or for the abuse assessment center.
L was asked about the fact that her testimony at
trial had been different from her grand jury testimony
regarding contact with defendant’s penis. She acknowledged
that, when asked during the earlier proceeding whether
defendant’s penis had touched her, she had responded “I
don’t know” or “I don’t remember,” whereas at trial she had
testified that it had. L stated that she had been nervous at
the time of the grand jury proceeding.
Following L’s testimony, the state called the forensic interviewer who interviewed L at the abuse assessment
558 State v. Powers
center and played parts of the interview for the jury, including L’s descriptions of defendant showing her pornography
and the abuse that occurred during their camping trip. The
interview included, among other things, exchanges in which
L explained that defendant “tried” to put his penis in the
hole of her butt and in her vagina but that it “[d]idn’t work.”
Later, the state called L’s mother as a witness.
Mother testified in ways that corroborated the timing of the
camping trip and defendant’s use of pornography. As discussed later, mother was also asked whether defendant was
“able to get an erection naturally when you two were intimate?” Defense counsel objected on relevance grounds, and
the court excused the jury for a break.
The trial court overruled the objection, but during
the break another issue came up: Defendant’s family members or associates were seen leaving the courtroom and conversing with potential witnesses who had been previously
excluded from the courtroom. During questioning outside
the presence of the jury, one member of defendant’s party,
Feeney, admitted that he had been discussing trial testimony with defendant’s sisters, who were potential witnesses.
Other members of defendant’s party, including his parents,
denied discussing the case with potential witnesses. The
court stated that the “only person whose testimony I actually believe is Mr. Feeney” and that the court did not “find
the rest of you to be terribly credible on this topic.” However,
the court agreed with defendant’s suggestion that the
group—his parents, Feeney, and another friend—be allowed
to attend closing arguments but otherwise be excluded from
the courtroom.
Mother retook the stand after the break, and the
prosecutor returned to the line of questioning regarding
defendant’s ability to maintain an erection. Mother stated
that defendant required medication to get an erection and
that defendant’s explanation for that was “[t]hat he was not
attracted to me, that I was too fat.” The prosecutor then
turned to L’s abuse allegations and defendant’s response to
them. According to mother, defendant categorically denied
that he had ever touched L and claimed that it was “anatomically impossible for him to have sex with her.”
Cite as 323 Or App 553 (2023) 559
During mother’s testimony, the state also played a
recording of a call from jail in which defendant told mother
that he had been charged with two A felonies and two B felonies and stated that “I have to fight those honey, because the
two A felonies, I did not do. I did not do those. Like I—and I
told my—I told my attorney that that shit did not happen.”
During the call, defendant also stated, “I cannot live with
kids, I realize that.”
On cross-examination, mother was asked about
DHS’s earlier investigation of defendant. The prosecutor
objected to the line of inquiry, arguing that the outcome of the
earlier DHS investigations was not admissible. Defendant
responded that he would avoid asking about DHS’s findings,
but rather wanted to know whether the family was investigated, who initiated the request, whether L relayed any concerns at the time, and whether the family remained intact
after the investigation—all of which defendant argued were
admissible to impeach L’s testimony (as opposed to mother’s).
The trial court sustained the prosecutor’s objection on the
ground that there was already evidence in the record that L
had never disclosed abuse to anyone before July 2018. When
cross-examination resumed, mother testified that L had not
voiced any concerns about defendant until the summer of
2018.
The state rested its case after mother’s testimony,
and defendant then called his first witness, his sister
Copeland. On direct examination, Copeland, a police officer,
testified that she had had opportunities to observe defendant with L and had never seen inappropriate behavior, contrasting defendant’s behavior with L with what Copeland
had observed during defendant’s abusive relationship with
H. On cross-examination, the prosecutor established that
Copeland understood the importance of witnesses being
excluded from the courtroom and then asked, “And knowing all that, you still let an observer yesterday contact you
continuously throughout the day and report to you what was
happening in court, correct?”
Defendant objected on the basis of relevance, but the
trial court overruled the objection. The prosecutor then asked
about Copeland’s relationship to Feeney, including whether
560 State v. Powers
she knew that Feeney had testified that he was reporting
back to potential witnesses about what had transpired in
the courtroom. After the prosecutor elicited testimony that
Copeland knew Feeney had been “kicked out of the courthouse,” the trial court interrupted and took a break.
Outside the presence of the jury, the prosecutor
stated that she was done with that line of questioning, and
defendant moved for the questions and Copeland’s responses
be stricken from the record as inflammatory and unduly
prejudicial. The state replied that the questions were permissible impeachment, and the trial court denied the motion.
On redirect, Copeland testified that her responses in court
were not influenced in any way by her interactions with
Feeney.
In addition to his other witnesses, defendant testified in his own defense. Among other testimony, defendant
denied that he had ever touched L for a sexual purpose or
masturbated in front of her. He admitted that he was guilty
of sexually abusing H, and that he did not “fight it” but “took
full responsibility for that very terrible event, and multiple
events of inappropriate contact.” He also explained that his
relationship with H was different from his relationship with
L because, at the time he was abusing H, he was in a different place emotionally and mentally, was not clean and sober,
and was not in a happy marriage.
During his testimony, defendant acknowledged that
he had “climbed over on [L’s] back” during the camping trip
but contended that he did so to “pop” L’s back because she
had back pain. He also denied that he had watched pornography with L, stating that he had watched a documentary
about pornography that included nudity and had left it on
the screen while L was in the room with him. Defendant
testified that he roughhoused with L while he wore pajamas
but that it was never his intention “for her to feel anything
against me.”
Defendant was also asked on direct examination
about mother’s testimony that he was unable to achieve an
erection with her. Defendant testified that he was diagnosed
with erectile dysfunction. Counsel then asked him, “Did you
Cite as 323 Or App 553 (2023) 561
ever tell [mother] as she indicated … that you couldn’t
achieve an erection because you didn’t find her attractive?”
Defendant responded, “No, I did not ever say that to my wife,
and that’s actually really terrible that she internalized my
failures—.” Defendant was interrupted by an objection from
the prosecutor, which the court sustained, but said that he
“absolutely” disagreed that he had ever said that to mother.
After defendant testified, the defense rested its case
and the state called a rebuttal witness, Green, a handwriting
expert, to testify about authorship of the handwritten notes
that described abuse by defendant. But before asking Green
for his opinion on the notes’ likely author, the prosecutor asked
Green whether he had been contacted by defense counsel
and been paid to do a handwriting analysis. Green said that
he had been contacted by defense counsel but, before Green
discussed hiring, defendant objected. Defendant argued
that all of Green’s testimony was irrelevant because authorship of the notes ultimately had not been put at issue
during trial, and, in any event, “[i]t’s not relevant that the
Defense paid Mr. Green. And it’s only prejudicial that the
Defense paid Mr. Green.” The prosecutor then said that
she would “withdraw that question and instead ask was he
hired,” and the court stated, “All right. So the objection is
overruled in its entirety.” When questioning resumed, the
prosecutor asked not only whether Green “was hired” but
whether Green was “hired by Defense counsel to conduct a
handwriting analysis,” to which he responded affirmatively.
Defendant did not object again at that point, and Green proceeded to opine that the notes had been written by L based
on handwriting exemplars that he had reviewed.
The trial court then instructed the jury, including
an instruction that “[b]efore considering evidence of [defendant’s] prior bad acts, the jury must first answer a question
as to whether [he] touched a sexually intimate part of [L],”
and that “[i]t is then, and only then,” that the jury may consider the evidence “for the limited purposes of its bearing, if
any, on whether [defendant] acted with a sexual purpose.”
The jury unanimously found defendant guilty on all
counts, and he timely appealed the judgment.
562 State v. Powers
II. DISCUSSION
On appeal, defendant advances six assignments of
error, which we address in turn.
A. Admission of Evidence of Prior Sexual Abuse
In his first assignment of error, defendant asserts
that the trial court erred in admitting evidence of his prior
sexual abuse of H. As described above, the court admitted,
over defendant’s objection, court-certified copies of defendant’s 2006 convictions for attempted sexual abuse of H and
testimony from H about her age and relationship to defendant at the time of the offenses. The court ruled that that
evidence was admissible on two separate grounds: (1) under
OEC 404(3), to prove that defendant acted “intentionally”
in engaging in sexual conduct with L; and (2) under OEC
404(4), to prove his “sexual interest in children.”
With regard to admissibility under OEC 404(3), the
state’s argument and the trial court’s analysis largely
tracked the factors set forth in State v. Johns, 301 Or 535,
725 P2d 312 (1986), overruled in part by State v. Skillicorn,
367 Or 464,
479 P3d 254 (2021). Johns was still good law
at the time of the court’s ruling in 2019 for determining
whether prior bad acts were relevant to prove “intent.”
The trial court concluded that defendant’s conduct and his
convictions involving H were relevant to prove defendant’s
intent as to L.
The court then conducted balancing under OEC
403 and determined that only a subset of the evidence the
state sought to offer was admissible. With regard to probative value, the court explained that “[t]he probative value
of the defendant’s similar conduct, requiring similar intent,
against a similar victim who was in a unique relationship
that allowed defendant access to her is high. The strength
of some of that evidence is also high—the defendant pled
guilty to both prior bad acts.” With regard to prejudice and
balancing, the court explained:
“Evidence of the prior bad acts is prejudicial because it
is relevant. There is the possibility, as in all cases in which
the court admits prior bad acts, that the jury could be distracted by this evidence. On these facts, the court does not
Cite as 323 Or App 553 (2023) 563
conclude that the probative value of the defendant’s [three]
prior convictions and [H’s] testimony as to her age and
step-daughter relationship to the defendant at the time the
underlying conduct occurred is substantially outweighed
by the danger of unfair prejudice, confusion of the issues,
or misleading the jury. The court does not reach the same
conclusion with regard to [H’s] testimony regarding the
specific acts she claims the defendant committed against
her because the probative value of her testimony as to the
specific acts the defendant perpetrated is unknown.
“As the state intends to offer only the court-certified
convictions of the defendant and the testimony of one witness ([H], the previous victim), the court is not concerned
about undue delay or the needless presentation of cumulative evidence.
“On balance, the state’s need to present these prior bad
acts is great as it must prove the defendant’s intent with
regard to each of the four counts. That need is greater than
the defendant’s desire to exclude it based upon the concerns
identified above, particularly when the jury is already going
to hear allegations of remarkably similar conduct against a
similarly-situated victim.”
The court then separately addressed OEC 404(4).
The court explained:
“The decisional authority favoring admissibility of the
proffered prior bad acts under OEC 404(4) is more straightforward; the proffered bad acts would all be admissible
under OEC 404(4) as evidence that the defendant has a sexual interest in children. The court does not reach a different analysis for admissibility for that purpose under OEC
403 and incorporates its analysis above.”
On appeal, the parties agree that the landscape
regarding OEC 404(3) and OEC 404(4) has shifted significantly since the trial court’s ruling, but they disagree as
to whether the trial court’s ruling survives those shifts.
The state does not defend the court’s OEC 404(3) ruling on
appeal, and we readily conclude that, in light of the Supreme
Court’s subsequent decision in Skillicorn, the trial court
erred in concluding that the evidence was admissible under
OEC 404(3) to prove intent. See State v. Martinez, 315 Or
App 48, 58-59,
499 P3d 856 (2021) (holding that the trial
564 State v. Powers
court erred, in light of Skillicorn, in concluding that a theory of relevance that employed propensity reasoning was
admissible under OEC 404(3) to prove intent); State v. Terry,
309 Or App 459, 463,
482 P3d 105 (2021) (same). However,
the state argues that the trial court’s admission of the evidence was nonetheless correct under its alternative rationale under OEC 404(4).
Defendant, meanwhile, contends that the trial
court’s OEC 403 balancing under its OEC 404(4) analysis
was based upon and therefore tainted by the court’s erroneous understanding of the probative value of the evidence to
prove intent. In defendant’s view, the trial court’s explanation that it “does not reach a different analysis for admissibility for that purpose under OEC 403 and incorporates its
analysis above” demonstrates that the court failed to appreciate the different prejudice and probative value of propensity and nonpropensity purposes when conducting its OEC
403 balancing.
The parties’ dispute is a variation of one that has
arisen multiple times in the wake of Skillicorn, as we
recently explained:
“In some instances, after determining that a trial court
erred in admitting propensity evidence under OEC 404(3),
we have considered, ‘[re]gardless of how the evidence is characterized,’ whether the trial court substantively understood
that the state’s theory of relevance depended on propensity
reasoning when it admitted the evidence after balancing
under OEC 403. State v. De Leon Say, 319 Or App 271, 273,
510 P3d 979 (2022); Terry,
309 Or App at 464; see [Martinez,
315 Or App at 57-58] (considering whether the trial court
‘implicitly’ understood it was admitting propensity evidence
under OEC 404(4)). … [T]hat is because both the label
placed on the evidence—either nonpropensity under OEC
404(3) or propensity under OEC 404(4)—and the substantive content of the arguments for and against admissibility
inform our understanding of the trial court’s ruling. State v.
Travis,
320 Or App 460, 469-70,
513 P3d 614 (2022).”
State v. Cave,
321 Or App 81, 87-88,
516 P3d 279 (2022).
Unlike some cases in which we have been called upon
to determine whether the trial court’s ruling demonstrated
Cite as 323 Or App 553 (2023) 565
that it implicitly understood the evidence to be admissible as
propensity evidence under OEC 404(4), the trial court here
understood the nature of this evidence under OEC 404(4)
and then explicitly conducted OEC 403 balancing following its alternative OEC 404(4) rationale. As part of its OEC
404(4) rationale, and prior to undertaking its OEC 403 balancing, the court acknowledged that the evidence was relevant for a propensity purpose, namely defendant’s “sexual
interest in children.” Thus, the question is not whether the
trial court conducted the requisite balancing but, rather,
whether it abused its discretion in doing so. See Terry,
309
Or App at 461 (explaining that our review in this posture
is for an abuse of discretion); cf. Cave,
321 Or App at 88
(“Although both parties presented arguments regarding the
testimony’s admissibility as propensity evidence under OEC
404(4), the trial court expressly declined to ‘reach that issue
because [the testimony] wasn’t admitted for a propensity
purpose.’ ”); Travis,
320 Or App at 460 (rejecting the state’s
argument that the trial court conducted balancing with
regard to propensity evidence “by implication”).
Contrary to defendant’s contention, the fact that
the trial court incorporated its previous OEC 403 balancing does not itself demonstrate that the trial court failed to
appreciate the propensity nature of the evidence. Although
the Supreme Court and this court have often explained the
differences, both in terms of probative value and prejudice,
of propensity and nonpropensity theories, a trial court is
not required to explicitly recite those differences as part of
its balancing when it is clear that the court understood the
purpose for which it was offered. See State v. Anderson, 363
Or 392, 406,
423 P3d 43 (2018) (“[T]his court has not held
that a trial court must recite on the record how it evaluated the probative and prejudicial value of evidence and how
it balanced the two.”); Terry,
309 Or App at 464 (affirming
the trial court’s OEC 403 balancing as to some evidence of
prior bad acts where, “[r]egardless of the name placed on
it, [propensity] was the theory for which the state offered
and the trial court admitted the evidence at issue in this
case”).
Here, viewed in the context of the court’s express
OEC 404(4) analysis, the court’s statement that it did not
566 State v. Powers
“reach a different analysis for admissibility for that purpose
under OEC 403 and incorporates its analysis above” indicates that the court reached the same conclusions as it had
above—specifically, that the probative value of defendant’s
three prior convictions and H’s testimony as to her age and
relationship to defendant to show defendant’s propensity to
act with a sexual purpose was not substantially outweighed
by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay
or needless presentation of the evidence, but that H’s testimony regarding the specific acts of abuse would be excluded
under OEC 403 under a propensity theory as well. Again,
contrary to defendant’s view, we do not assume that a trial
court failed to appreciate the potential prejudice from a propensity theory simply because it was not expressly referenced as part of the ruling. Moreover, as discussed below, to
the extent that the court incorporated its earlier reasoning,
its analysis of the probative value of the evidence included
considerations that were substantively based on a propensity theory of sexual purpose. See Terry, 309 Or App at 464
(looking to the substance of what the court explicitly balanced rather than the label).
As we discussed in Terry, the Ninth Circuit identified factors in United States v. LeMay, 260 F3d 1018 (9th
Cir 2001), cert den,
534 US 1166 (2002), “to guide a court’s
exercise of discretion in determining whether to admit evidence of uncharged sexual misconduct in a prosecution for
sex crimes.”
309 Or App at 465. Those factors include (1) the
similarity of the uncharged misconduct; (2) the temporal
proximity of the uncharged acts to the charged acts; (3) the
frequency of the prior acts; (4) the existence or nonexistence
of intervening circumstances; and (5) the need for the evidence in addition to the testimony already offered at trial.
LeMay,
260 F3d at 1028.
In Terry, we concluded that, “[t]aking those factors
into account, we cannot say that the trial court abused its
discretion in admitting the evidence of defendant’s prior conviction, his statement about the circumstances underlying
that conviction, and his statement admitting his attraction
to 10- to 13-year-old girls.” 309 Or App at 465. We explained
Cite as
323 Or App 553 (2023) 567
that “[t]he state had a strong need for the evidence, the victim of the charges was close in age to the category of girls
that defendant admitted an attraction to, and not too much
older than the 10-year-old victim of the prior charges,” and
the evidence, “although potentially inflammatory, could be
addressed through a limiting instruction, something the
trial court offered.”
Id.
The same is true in this case. As the trial court
explained when discussing the state’s theory of “intent”
(which, in light of Skillicorn, was actually a propensitybased theory), “[t]he probative value of the defendant’s similar conduct, requiring similar intent, against a similar
victim who was in a unique relationship that allowed defendant access to her is high,” and “the state’s need to present
these prior bad acts is great as it must prove the defendant’s
intent with regard to each of the four counts.” The court further reasoned that the potentially inflammatory nature of
the evidence could be addressed by restricting the evidence
to the three prior convictions and H’s testimony as to her
age and relationship to defendant at the time of the abuse—
without further factual detail regarding the specific acts—
along with a limiting instruction, which the trial court gave.
In light of those factors—the underlying offenses and the
children’s ages and relationships to defendant were very
similar, the state needed the evidence to show that defendant acted with a sexual purpose as to each charge in a
case where defendant disputed that he had ever touched L
with a sexual purpose, and the court made use of a limiting
instruction—the trial court reached a permissible conclusion
under OEC 403 allowing the use of propensity evidence. As
was the case in Terry, “[a]lthough other LeMay factors point
in a different direction, such that the court would have been
within its discretion to exclude the evidence as well, it was
within its discretion to admit it.” 309 Or App at 465; see also
State v. Moles,
295 Or App 606, 620,
435 P3d 782, rev den,
365 Or 194 (2019), rev allowed and rev’d and rem’d in part
on other grounds,
366 Or 549,
466 P3d 61 (2020) (explaining
that “the trial court’s decision to admit the evidence to show
sexual purpose—even if different from how this court might
ultimately have resolved the balancing question in the first
instance—represents a permissible exercise of the court’s
568 State v. Powers
discretion under the totality of the circumstances in this
case”).1 For that reason, we reject defendant’s first assignment of error.
B. Cross-Examination of Mother Regarding DHS Investigation
Defendant next assigns error to the trial court’s
ruling limiting his cross-examination of mother concerning an earlier DHS investigation. Defendant contends that
his questions about the DHS investigation, and mother’s
observations during that investigation, were permissible
bases for testing mother’s credibility and potential biases
and would have produced evidence critical to his theory
of defense: namely, that L’s allegations were the product
of mother’s ex-husband’s efforts to remove defendant from
mother’s life; that mother’s ex-husband had earlier initiated
DHS investigations into the family, but that those investigations did not corroborate abuse because L was not willing
to falsely accuse defendant at that time; and that L subsequently became angry at defendant and alleged that abuse
had occurred prior to the DHS investigations, despite her
previous denials of any abuse to DHS.
On this record, defendant has not demonstrated
that the trial court committed reversible error by limiting his cross-examination of mother. After the prosecutor
objected to defendant’s line of inquiry regarding the earlier
DHS investigation, defendant explained that he wanted
to ask mother four questions related to the investigation:
“Was there an investigation? Do you know who initiated
it? Did [L] disclose anything to you during that time? And
did the family remain intact after that investigation?”
Defendant explained that the questions were for the purpose of impeaching L based on mother’s observations of L’s
responses and demeanor in 2017.
The trial court sustained the state’s objection on the
ground that there was already evidence in the record that
1
At oral argument, defendant contended that Moles and its reliance on
LeMay when balancing propensity evidence did not survive the court’s analysis
in Skillicorn. We disagree. Since Skillicorn, we have understood the LeMay factors to be a helpful guide when conducting balancing of prior bad acts for propensity purposes in sexual abuse cases. See State v. Davis, 319 Or App 737, 749-50,
511 P3d 10, rev allowed,
370 Or 471 (2022) (discussing cases applying the LeMay
factors, including Moles and our post-Skillicorn opinion in Terry).
Cite as
323 Or App 553 (2023) 569
L had never disclosed abuse to anyone before July 2018. At
that point, defendant did not make an offer of proof as to
how mother would have answered any of the questions he
wanted to ask. Rather, once cross-examination of mother
resumed, defense counsel elicited testimony from mother
that defendant remained in mother’s household with her
and the children until the summer of 2018 and that, prior
to the summer of 2018, L did not voice any concerns to her
about defendant.
Given that context, we agree with the state that,
without an offer of proof, defendant cannot demonstrate
he was prejudiced by any error in limiting his cross-examination. The jury heard evidence that L had not previously disclosed any abuse before the summer of 2018, and
mother testified that the family remained intact up until
that point. We cannot speculate as to what mother may have
said about the previous DHS investigation, who initiated it,
or what mother may have observed during the investigation,
or whether such testimony would have meaningfully differed from other evidence that the jury heard about L’s failure to disclose abuse earlier. See State v. Krieger, 291 Or App
450, 457,
422 P3d 300, rev den,
363 Or 599 (2018) (holding
that, in the absence of a sufficient offer of proof, the defendant had not “provided this court with a record from which
we can determine whether the error—if any—was harmless”). We therefore reject defendant’s second assignment of
error.
C. Admission of Testimony Regarding Defendant’s Erectile
Dysfunction
In his third assignment of error, defendant argues
that the trial court erred by overruling his objection to the
prosecutor’s question to mother about defendant’s ability
to maintain an erection, thereby allowing mother to testify that defendant required medication to get an erection
and that defendant told her “[t]hat he was not attracted to
[mother], that [she] was too fat.” According to defendant, evidence that he experienced erectile dysfunction and blamed
it on mother’s weight was irrelevant, and, even if marginally
relevant, should have been excluded as unduly prejudicial
under OEC 403.
570 State v. Powers
We are not persuaded that the court either legally
erred in concluding that the evidence was relevant under
OEC 401 or abused its discretion in admitting the evidence
over defendant’s OEC 403 objection. As set out earlier, defendant was charged with first-degree sodomy and attempted
first-degree rape, charges that put at issue whether defendant penetrated L’s anus with his penis and attempted to
penetrate her vagina with his penis; there was also evidence
that defendant had stated that it was “anatomically impossible” for him to have sex with L. Evidence of whether defendant could or could not achieve an erection with someone
to whom he was sexually attracted was at least marginally
relevant to issues in the case, considering the additional
evidence that defendant was sexually attracted to children.
And, in the context of this trial, the court acted within its
discretion in concluding that the probative value of defendant’s inability to maintain an erection and his explanation for that inability, minimal as it may have been, was
not substantially outweighed by the risk of unfair prejudice.
Accordingly, we reject defendant’s third assignment of error.
D. Impeachment of Copeland
In his fourth assignment of error, defendant argues
that the trial court erred and abused its discretion when
it allowed the state to impeach Copeland by asking her
about Feeney and whether she knew that Feeney had been
kicked out of the courthouse. We disagree. Defendant’s family members and friends had been seen leaving the courtroom and conversing with witnesses, and Feeney actually
admitted that he had been discussing trial testimony with
defendant’s sisters, which could have included defendant’s
sister Copeland. The court also expressly found defendant’s
parents to have not been credible in claiming that they had
not discussed trial testimony with witnesses, again possibly
including Copeland. Under the circumstances, the trial court
acted within its discretion in allowing the state to briefly
explore for impeachment purposes, on cross-examination,
whether communications with Feeney outside the courtroom
had somehow influenced Copeland’s in-court testimony.
Cf. United States v. Erickson, 75 F3d 470, 480, cert den,
517
US 1222 (9th Cir 1996) (describing cross-examination as the
“usual remedy” for a potential sequestration violation).
Cite as
323 Or App 553 (2023) 571
E. Admission of Handwriting Expert’s Testimony
In his fifth assignment of error, defendant argues
that the trial court erred in overruling defendant’s relevance
objection to evidence that defendant had hired Green, the
handwriting expert who ended up testifying for the state on
rebuttal. Defendant argues that, because he ultimately did
not present his theory that W wrote the accusatory notes
as opposed to L, there was “little need for the expert at all.”
Moreover, he argues, the fact that the defense had hired
Green but then abandoned the theory had “absolutely no relevance to any material issue in the case” and served only “to
make the defense appear less competent and less credible as
a whole.”
Defendant’s first argument—that Green’s testimony was not relevant because he abandoned his theory
that the letters were written by W—is not supported by the
record. Although defendant did not expressly advance that
theory at trial, he did so implicitly, including through questioning of L and other witnesses. Green’s testimony was relevant to authorship of the notes, which remained a fact of
consequence in the case even if defendant did not press the
theory.
The closer question is the relevance of the fact that
defendant had previously hired Green. That relevancy question is one that appears to have split courts. See Fitzgerald
v. Roberts, Inc., 186 NJ 286, 302-03, 895 A2d 405, 414-15
(2006) (describing disagreement among courts as to “what
limitation, if any, should be placed upon the party who is
presenting and questioning his adversary’s former expert”).
However, it is not one that we need to resolve in this case.
Even assuming that the court erred by admitting evidence
that defendant had hired Green, there is little likelihood on
this record that the jury’s verdicts on any of the charges
were affected by that error. This was a case in which the jury
considered testimony from L about the abuse; learned that
defendant had previously sexually abused a child, including through defendant’s own testimony about the extent of
that abuse; heard a jail call in which defendant stated that
he could not live with children; and heard defendant’s own
testimony about what happened during his relationship
572 State v. Powers
with H and why others, like mother’s ex-husband and W,
were motivated to influence L to falsely accuse him of abuse.
Authorship of the notes themselves did not turn out to be a
central issue, and the state never pressed on the reasons
defendant did not call Green or otherwise imply, as defendant now suggests, that defense counsel was less than competent. Given the nature of the evidence in the case and
the role that Green’s testimony played, neither the fact that
defendant hired Green but did not call him to testify, nor
any adverse inferences the jury could have drawn about
defendant’s case or counsel’s competency, had any reasonable likelihood of affecting the jury’s deliberations. State v.
Davis,
336 Or 19, 32,
77 P3d 1111 (2003) (explaining that
the appellate courts will affirm a judgment despite evidentiary error if there is “little likelihood that the particular
error affected the verdict”).
F. Nonunanimous Jury Instruction
Defendant’s sixth and final assignment of error is
that the trial court erred when it denied his request for a
unanimous jury verdict instruction and instead instructed
the jury that it could convict defendant by a vote of 10 of
12 jurors. Although the court erred in giving the nonunanimous jury instruction, Ramos v. Louisiana, 590 US ___,
140
S Ct 1390,
206 L Ed 2d 583 (2020), the error is not reversible
because it is not structural error and was harmless beyond
a reasonable doubt in light of the fact that all of the verdicts
were unanimous. State v. Flores Ramos,
367 Or 292, 334,
478 P3d 515 (2020).
In sum, we reject each of defendant’s assignments
of error for the reasons expressed above.
Affirmed.
