State v. Deanda

No. 140             February 28, 2024                 217

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
           GABRIEL PAUL DEANDA, JR.,
     aka Gabriel Deanda, aka Gabriel Paul Deanda,
                 Defendant-Appellant.
             Lincoln County Circuit Court
                 20CR70280; A176438

  Sheryl Bachart, Judge.
  Submitted June 5, 2023.
   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 Christopher A. Perdue, Assistant
Attorney General, filed the brief for respondent.
  Before Shorr, Presiding Judge, Mooney, Judge, and Pagán,
Judge.
  SHORR, P. J.
  Portion of supplemental judgment imposing court-appointed attorney fees reversed; otherwise affirmed.
218                                                       State v. Deanda

          SHORR, P. J.
          Defendant appeals from a judgment of conviction
for one count of first-degree rape, ORS 163.375, and one
count of first-degree sexual abuse, ORS 163.427,1 and a supplemental judgment imposing a fine of $5,000 and ordering
defendant to pay $3,651 in court-appointed attorney fees.2
In his first assignment of error, defendant argues that the
trial court erred when it denied his motion to present evidence regarding the victim’s past sexual behavior pursuant
to OEC 412(2)(b)(C). In his second and third assignments of
error, he argues that the trial court erred when it imposed
a fine and court-appointed attorney fees. We affirm the
convictions and the portion of the supplemental judgment
imposing the fine but reverse the portion of the supplemental judgment imposing the court-appointed attorney fees.
          Evidentiary ruling under OEC 412(2)(b)(C). When we
review a trial court’s evidentiary ruling, we do so in light of
the record before the court at the time of that ruling. State v.
Banks, 

, 

 (2022) (citing State
v. Eatinger, 

, 632, 

 (2019)).
We recount only the facts necessary to understand the trial
court’s ruling. Defendant was accused of the rape and sexual
abuse of his father’s girlfriend’s daughter, K, who was 14 years
old at the time of the charged conduct. Defendant had been
living in the same home with K. At the time of the evidentiary ruling, the parties acknowledged that K had reported
that defendant had entered her bedroom and engaged in forcible sexual touching and vaginal penetration. K’s friend and
toddler-aged sister were both asleep in the room at the time,
and K’s mother was in the home in another bedroom, but K
did not loudly cry out during the assault to get their attention.
          Defendant maintained that the incident did not
occur.3 In a pretrial motion, defendant sought to introduce
evidence that K had reported a previous sexual attack, in
    1
      A jury found defendant guilty of two counts of first-degree sexual abuse,
which the trial court merged into a single conviction. Defendant was acquitted of
one count of strangulation.
    2
      At sentencing the court stated on the record that it was imposing $4,705 in
attorney fees. The supplemental judgment imposed only $3,651 in attorney fees.
    3
      Defendant did not argue that the contact was consensual or a mistake; he
denied it happened at all.
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 (2024)                                                     219

which an older man had dragged her into his vehicle and
touched her sexually, but she screamed and fought him off
and escaped. That incident was alleged to have happened a
few years prior to the charged conduct, when K was around
12 years old. Defendant sought to introduce evidence of
that incident in order to show how K reacted to a sexual
attack previously, arguing that it undermined her allegations regarding the charged actions given that she did not
cry out when her sister, friend, and mother were all nearby.
Defendant argued that evidence of the previous incident was
relevant to his defense that the assault did not occur. The
trial court ruled that evidence of K’s previous assault was
not admissible under OEC 412, as it did not fall under any
of the exceptions and the previous incident occurred under
different circumstances than the charged incident.
         On appeal, defendant argues that the trial court
erred, because evidence of K’s previous assault was constitutionally required, and therefore should have been admitted
under OEC 412(2)(b)(C).4 Defendant asserts that evidence
about K’s resistance and response to her prior sexual assault
was necessary for defendant to exercise his right to confront
the witnesses against him and his right to a meaningful
opportunity to present a complete defense.5

    4
        OEC 412 states, in part:
          “(2) Notwithstanding any other provision of law, in a prosecution for [a
      completed or attempted sex crime], evidence of an alleged victim’s past sexual behavior other than reputation or opinion evidence is also not admissible,
      unless the evidence other than reputation or opinion evidence:
          “…
          “(b) Is evidence that:
          “(A) Relates to the motive or bias of the alleged victim;
          “(B) Is necessary to rebut or explain scientific or medical evidence offered
      by the state; or
          “(C) Is otherwise constitutionally required to be admitted.”
      5
        Defendant’s constitutional arguments invoke the Confrontation and
Compulsory Process clauses of the Oregon and United States constitutions, as
well as the federal Due Process clause. Or Const, Art 1, § 11 (“In all criminal
prosecutions, the accused shall have the right … to meet the witnesses face to
face, and to have compulsory process for obtaining witnesses in his favor[.]”); US
Const, Amend VI (“In all criminal prosecutions, the accused shall enjoy the right
… to be confronted with the witnesses against him; to have compulsory process
for obtaining witnesses in his favor[.]”); US Const, Amend XIV, § 1 (“No State shall
… deprive any person of life, liberty, or property, without due process of law[.]”).
220                                                      State v. Deanda

         In determining the admissibility of evidence under
OEC 412, the trial court conducts a three-step inquiry:
(1) Does the evidence concern a victim’s past sexual behavior? (2) Does the evidence fit within one of the exceptions
in OEC 412(2)(b)? (3) Does the probative value outweigh
the prejudicial effect? If the answer to all three questions
is “yes,” then the evidence is admissible. State v. Fowler,

, 

, rev den, 

(2009). We review determinations on the first two questions
for errors of law and the last for an abuse of discretion. State
v. Davis, 

, 

, rev den,

 (2015); Fowler, 

.
        The parties agree that the evidence concerns K’s
“past sexual behavior,” as that term has been interpreted
for OEC 412 purposes. See State v. Wright, 

, 

, rev den, 

 (1989) (noting that
“past sexual behavior” includes previous sexual molestation
of the victim). We thus turn to whether the evidence fits
within the “constitutionally required” exception.6
   “In determining whether evidence must be admitted
   because excluding it would infringe on a defendant’s constitutional rights to confront witnesses and to 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, 

-94 (quoting State v. Beeler, 

, 

, rev den, 

 (2000)
(brackets in Fowler)).
         The state’s interest in excluding evidence stems
from the purpose of OEC 412, which is meant to “protect victims of sexual crimes from degrading and embarrassing disclosure of intimate details about their private lives” and to
“encourage victims of sexual misconduct to report and assist
in the prosecution of the crime by preventing highly prejudicial evidence from reaching the jury and thus helping to
protect jury impartiality.” State v. Lajoie, 

, 

 (1993) (internal quotation marks and alterations
    6
      Defendant did not offer the evidence under either of the other two exceptions, OEC 412(2)(b)(A) - (B).
Cite as 

 (2024)                              221

omitted). While the evidence at issue in this case is of a different nature than that of a victim’s volitional sexual behaviors, it is still related to a traumatic and personal event in
K’s life. The state’s interest in protecting a young victim from
such disclosures was precisely the goal of OEC 412.
         In comparison, the value of the evidence to the
defense was minimal. The prior assault occurred years earlier, with a different person, and under different circumstances. The probative value of K’s response to one assault
at the age of 12 when she was grabbed off the street has
minimal relevance to inferring how she would be expected
to respond to an assault years later by an individual who
lived in her home. The circumstances are sufficiently dissimilar that the evidence has minimal logical relevance to
defendant’s theory of his defense, which included the argument that if the assault had occurred as alleged, the other
people in the room would have heard something. See Fowler,
255 Or App at 196 (noting the minimal relevance of the proffered evidence—details of the teenage victim’s sexual activity with peers—to the defendant’s theory of the case that
the victim had fabricated allegations against him in order
to eliminate him as an authority figure and an obstacle to
her further engagement in such conduct, and concluding
that general evidence of those circumstances was sufficient
to make the point); Beeler, 

 (noting that
there were any number of reasons why the victim would
have consented to sexual activity with her boyfriend the day
after the alleged rape and that the inference the defendant
sought to elicit—that the victim had therefore consented
to sexual activity with the defendant—was “too uncertain”
and the relevance of the evidence to the defense was “marginal at best.”).
         Because the value of the evidence to the defense did
not outweigh the state’s interest in excluding it, the evidence
was not constitutionally required, and the trial court did not
err in excluding it.
          Imposition of court-appointed attorney fees and criminal fine. At sentencing, the court imposed a fine and ordered
reimbursement for the cost of court-appointed counsel, both
of which were to be taken from the security deposit that was
222                                           State v. Deanda

posted by defendant’s father. The court made no findings
regarding defendant’s ability to pay the fees or fine apart
from the availability of the security deposit. Defendant did
not object to the imposition of the financial obligations at the
time of sentencing, and asks for plain error review of both.
         An unpreserved error is reviewable as plain error
when (1) the error is one of law; (2) the legal point is obvious, meaning it is not reasonably in dispute; and (3) to
“reach the error, we need not go outside the record or choose
between competing inferences to find it.” State v. Nickerson,

, 

 (2015) (internal quotation
marks omitted). If, based on those predicates, we conclude
that the error is plain, we must then decide whether to exercise our discretion to correct it. 

         Before imposing a financial obligation for court-appointed attorney fees on a criminal defendant, the trial
court must determine the defendant’s ability to pay. ORS
161.665; ORS 151.505. The state concedes that the trial
court plainly erred in imposing attorney fees without determining defendant’s ability to pay, and we accept that concession. The Supreme Court’s decision in State v. Morales, renders the error with respect to the attorney fee plain. 

, 

 (2020) (explaining that the longstanding presumption that any funds deposited as bail or security
by a third party were presumed to belong to the defendant
was wrong). We thus must determine whether to exercise
our discretion to correct the error, considering, among other
things, “the gravity of the error; the ends of justice in the
particular case; how the error came to the court’s attention;
and whether the polices behind the general rule requiring
preservation of error have been served in the case in another
way.” Ailes v. Portland Meadows, Inc., 

, 382
n 6, 

 (1991).
         Despite acknowledging that we have frequently
exercised our discretion to correct this type of plain error in
the past, the state encourages us not to exercise our discretion, comparing this case to State v. Laune, 

,

 (2021). In Laune, we determined that the same
error was plain, but elected not to exercise our discretion
to correct the error based on a number of factors, including
Cite as 

 (2024)                              223

that a conclusion that the defendant would not have been
able to pay absent the security funds had not been made
and was far from certain, given that the defendant had been
employed, had stated his intention to pay his relative back
for the security funds, and was planning to rent out his home
to generate income. 

. We further noted
that the assessed fee of $330 was not particularly grave in
light of the defendant’s past employment, as opposed to a
prior case where the defendant was on fixed government
assistance and had no history of employment. 

 (citing State v. Scott, 

, 

, rev den,

 (2021)). The state here argues that, even though
the trial court did not make findings, the record reflected
that defendant had previously been employed, had money to
rent a room, and had a car. Therefore, the state argues, had
defendant objected to the imposition of the fees, the state
could have presented evidence of his ability to pay and the
record could have developed differently.
         We conclude that this case is distinct from Laune
and elect to exercise our discretion to correct the plain error.
Notably, in Laune, the defendant had not requested plain
error review and had not articulated a basis for doing so. Id.
at 228. Defendant here has requested plain error review and
set forth his arguments for why we should exercise discretion under the Ailes factors. Furthermore, we note that we
have frequently exercised our discretion to correct this kind
of plain error in the past. See Scott, 

 (exercising discretion to correct imposition of $604 fee in light of the
fact that the trial court had effectively held that the defendant had no ability to pay absent the security funds given his
limited earning power due to his disability, criminal record,
and lack of work history; and considering the amount of the
fee imposed and our exercise of discretion in past similar
cases); State v. Smith, 

, 

(2015), rev den, 

 (2016) (noting error in imposing
$470 in attorney fees was “grave” in light of the defendant’s
apparent inability to work and five-year prison sentence preventing him from earning any substantial income); State v.
Hunt, 

, 

 (2015) (noting defendant’s 14-month sentence prevented him from continuing to
work and that the record contained no evidence that he had
224                                           State v. Deanda

another source of income or the capacity to pay the $510 fee);
State v. Ramirez-Hernandez, 

, 

 (2014) (exercising discretion to correct error in assessing
$400 fee, noting that although it may not be a substantial
amount to pay for some defendants, it was for that defendant
considering his status as homeless, mentally ill, and on an
indefinite immigration hold that was likely to result in deportation); State v. Coverstone, 

, 

 (2014) (noting that $8,000 was a substantial sum, the
record contained no evidence of any financial resources available to the defendant, and the defendant was sentenced to a
lengthy prison term); cf. State v. Baco, 

,

, rev den, 

 (2014) (declining to exercise
discretion based on the small amount of the fee ($510), the
defendant’s probationary sentence, which did not prevent him
from working, and the fact that he agreed to the state’s recommendation of attorney fees in the same amount for another
charge sentenced at the same time).
        Although the record contains some evidence of
defendant having a job prior to his arrest, he was given a
lengthy prison sentence that will prevent him from earning any substantial amount for many years. Furthermore,
the amount of fees imposed was significantly higher than in
many of the cases where we have deemed the error “grave.”
         We reach a different conclusion as to defendant’s
request that we review imposition of the $5,000 fine as
plainly wrong. As we have held a number of times, we conclude that the trial court’s imposition of a compensatory fine
under ORS 161.645 is not susceptible to plain-error review.
Smith, 

; State v. Wheeler, 

, 

 (2015). As in those cases, the record
here contains no evidence that defendant has the financial
resources to enable him to pay the fine; however, it is not
obvious that the court failed to consider defendant’s ability
to pay. As a result, the legal error, if any, is not apparent on
the record. Thus, the trial court did not plainly err in imposing the fine.
        Portion of supplemental judgment imposing court-appointed attorney fees reversed; otherwise affirmed.