No. 596 August 28, 2024 577
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOB CUESTA POZOS,
Defendant-Appellant.
Washington County Circuit Court
20CR64595; A179575
Erik M. Bucher, Judge.
Argued and submitted June 17, 2024.
Marc Brown, 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 Aoyagi, Presiding Judge, Joyce, Judge, and
Jacquot, Judge.
JOYCE, J.
Reversed and remanded.
578 State v. Pozos
Cite as 334 Or App 577 (2024) 579
JOYCE, J.
Defendant reported his 17-year-old stepdaughter,
L, as a runaway to the Beaverton Police Department. When
she returned home, L and her younger sister, A, told police
that defendant had repeatedly sexually abused them. The
state charged defendant with seven counts of first-degree
sexual abuse, ORS 163.427(1), and a jury found defendant
guilty on all counts. On appeal, defendant challenges his
convictions in six assignments of error, which reduce to four
arguments. He argues that the trial court erred (1) by denying his motion to suppress evidence derived from an unlawful interrogation, (2) by denying his request for a “witness
false in part” instruction despite some evidence that L and
A’s mother testified falsely, (3) by denying his three motions
for judgment of acquittal (MJOAs) despite legally insufficient evidence that L was less than 14 years old at the time
of the charged conduct, and (4) by failing to instruct the jury
sua sponte as to the culpable mental state for first-degree
sexual abuse. As we explain below, we find no error in the
trial court’s suppression ruling, but we agree that it erred in
the other three respects. Therefore, we reverse and remand
for further proceedings consistent with this opinion.
MOTION TO SUPPRESS
We begin by briefly addressing defendant’s first
assignment of error, in which he challenges the denial of his
motion to suppress. Below, defendant sought to suppress the
evidence derived from what he asserted to be an unlawful
police interrogation, because that interrogation took place
in “compelling circumstances” and without Miranda warnings. The trial court denied the motion, determining that
the circumstances were not “compelling” and, consequently,
Miranda warnings were not constitutionally required. See
State v. Nolen, 333 Or App 376, 380, ___ P3d ___ (2024)
(explaining that, under Article I, section 12, of the Oregon
Constitution, officers must provide Miranda warnings to a
suspect before interrogating them if the suspect is in “compelling circumstances”). Defendant reprises his argument
on appeal. Although we do not address the issue at length
here, suffice it to say that we have evaluated the record in
light of the applicable legal standard, and we agree with
580 State v. Pozos
the trial court that the circumstances were not “compelling”
and, thus, the interrogation was not rendered unlawful by
the officers’ failure to provide Miranda warnings.
“WITNESS FALSE IN PART” INSTRUCTION
We turn next to defendant’s fifth assignment of
error, in which he challenges the trial court’s refusal to give
a “witness false in part” jury instruction.1 ORS 10.095(3)2
requires that instruction when, “viewing the evidence in the
light most favorable to the party requesting the instruction,
the evidence is sufficient ‘for the jury to decide that at least
one witness consciously testified falsely’ concerning ‘a material issue.’ ” State v. Howard, 325 Or App 696, 714,
529 P3d
247, rev den,
371 Or 333 (2023) (quoting State v. Payne,
366
Or 588, 607,
468 P3d 445 (2020)). In such circumstances, a
trial court must instruct the jury that “a witness false in one
part of the testimony of the witness may be distrusted in
others.” ORS 10.095(3). That instruction “serves an important advisory function because it informs a jury of its duty
to scrutinize a witness’s testimony, undercuts the presumption that sworn testimony is truthful, and permits the jury
to draw an inference that a willfully false witness who has
violated her oath in one particular may well have done so in
others.” Payne,
366 Or at 610.
Below, defendant requested the instruction because
there was a factual contradiction in the testimony of two
witnesses of such a nature that the jury could find that one
witness consciously testified falsely concerning a material
1
Although our typical practice is to address challenges to the sufficiency
of the evidence prior to claims of instructional error, we are taking the inverse
approach here because the instructional error provides greater relief (i.e., reversal and remand for a new trial on all counts). Whereas the challenges to the sufficiency of the evidence involve only three counts and, as we explain below, still
allow the state to retry defendant for lesser-included offenses on those counts.
2
ORS 10.095(3) provides:
“The jury, subject to the control of the court, in the cases specified by
statute, are the judges of the effect or value of evidence addressed to them,
except when it is thereby declared to be conclusive. They are, however, to be
instructed by the court on all proper occasions:
“…
“(3) That a witness false in one part of the testimony of the witness may
be distrusted in others[.]”
Cite as 334 Or App 577 (2024) 581
issue. Detective Cynthia Herring testified that L and A’s
mother reported that L had previously threatened to accuse
defendant of touching her if he kept looking for her when
she ran away. But, on the witness stand, the mother denied
making that statement to police. Defendant argued that
the contradiction was sufficient to allow the jury to infer
that the mother had committed perjury. But the trial court
refused to give the instruction, explaining that when “one
witness remembers one thing about a conversation, [and]
another witness remembers another one, then … this is
not an appropriate instruction to be given.”
On appeal, the parties agree that the trial court erred
in denying defendant’s request for the “witness false in part”
instruction. Although she did not directly quote the mother in
her report, Detective Herring testified, “What’s documented
in my report is that [the mother] said that … [L] told [defendant] to stop looking for her, because she was going to say
that he touched her.” But, when asked during direct examination if she said that to police, the mother said, “No.” Cf.
Payne, 366 Or at 608 (finding that it was a proper occasion to
give the “witness false in part” instruction when one witness
unequivocally denied referring to the defendant’s race but the
reporting officer directly quoted the witness as referring to
his race). Viewing the evidence in the light most favorable to
defendant (as the party who requested the instruction), we
agree that there was sufficient evidence from which a reasonable juror could find that the mother consciously lied on the
stand. Therefore, we agree that the trial court erred when it
denied defendant’s request for the instruction.
The only dispute between the parties is whether
that error was harmless. Under Article VII (Amended), section 3, of the Oregon Constitution, we must affirm despite
error if there is “little likelihood that the error affected the
verdict[.]” State v. Davis, 336 Or 19, 33,
77 P3d 1111 (2003).
To evaluate harm, we consider “the context of the evidence
and record at trial, including the parties’ theories of the case
with respect to the various charges and defenses at issue.”
State v. Ashkins,
357 Or 642, 660,
357 P3d 490 (2015). To
that end, we summarize the relevant evidence presented at
trial and the parties’ competing theories.
582 State v. Pozos
In September 2019, defendant reported to the
Beaverton Police Department that L had run away from
home. L was 17 years old at the time and had been running
away fairly frequently since she had turned 14. When she
ran away, defendant often contacted police. On this particular occasion, L was with her boyfriend and another friend
when she learned that defendant had reported her to police
again. She was angry and told her boyfriend and her friend
that defendant had raped her when she was younger. Soon
afterward, she told her boyfriend’s mother that defendant
raped her when she was about 10 years old.
L returned home that night. When she arrived,
she immediately asked her 12-year-old sister, A, to speak
in private. There, the sisters apparently revealed to each
other that defendant had sexually abused them both for
an extended period of time, and they agreed to report the
abuse to police. As a standard procedure for a returned runaway, an officer came to defendant’s home to speak with L.
The sisters disclosed the allegations of abuse to the officer.
L reported that defendant had raped her when she was 11
years old and continued to touch her inappropriately until
she turned 16. Similarly, A said that defendant had been
sexually abusing her for about a year.
In the wake of those disclosures, police officers
spoke with the girls’ mother and defendant. Defendant
denied any wrongdoing and surmised that L was making
up the allegations in retaliation for his efforts to discipline
her. Meanwhile, the mother’s statements to Herring are the
source of the present issue regarding the “witness false in
part” instruction.
The mother spoke to Herring with the assistance of
an officer acting as an informal Spanish interpreter. At trial,
Herring testified that the mother reported that L had previously told defendant “to stop looking for her, because she
was going to say that he touched her.” However, the mother
testified that she never made that statement to Herring.
Consistent with his earlier statement to police, defendant’s theory at trial was that L was falsely accusing him of
sexual abuse and had influenced A to do the same. It is no
Cite as 334 Or App 577 (2024) 583
surprise then that the mother’s disputed statement was a key
piece of evidence, as it supported defendant’s theory by suggesting that L had planned the false allegations in advance
as retaliation for defendant’s efforts at disciplining her.
With that context in mind, we return to the question of harmlessness. From the outset, there is an important
nuance to bear in mind. When evaluating the harm caused
by the failure to give a “witness false in part” instruction,
our focus is not on the significance of the triggering statement. In other words, the question is not whether the disputed statement—i.e., that the mother told police that L had
previously threatened to accuse defendant of touching her—
was a significant fact in the case. The significance of the contradiction between the testimony of Herring and the mother
is only that it triggered the need for the “witness false in
part” instruction—the contradiction itself is irrelevant to
the harm analysis. See State v. Labossiere, 307 Or App 560,
569-70,
477 P3d 1 (2020) (finding the failure to give the “witness false in part” instruction harmless where the defendant’s harm argument focused only on the significance of
the false testimony that triggered the need for the instruction, and he failed to “identify any other jury findings that
the witness-false-in-part instruction could have informed”
(emphasis in original)). The focus of our analysis is on the
other testimony that the mother gave and whether the lack
of a “witness false in part” instruction, which deprived the
jury of useful guidance in how to evaluate that other testimony, may have affected the verdict. See Payne,
366 Or at
610 (explaining that the instruction “serves an important
advisory function because it … permits the jury to draw
an inference that a willfully false witness who has violated
her oath in one particular may well have done so in others”).
For its part, the state argues that the remainder of
the mother’s testimony was relatively insignificant to the
ultimate verdict because it was “focused primarily on helping the jury with background facts regarding family history and the events surrounding the victims’ disclosure.” We
disagree.
As explained above, the testimony that triggered
the need for the “witness false in part” instruction was
584 State v. Pozos
that the mother denied telling police that L had previously
threatened to accuse defendant of touching her. But she also
provided testimony that was significant yet factually distinct from that testimony:
1. She testified that she never heard L make such a threat
to defendant at all;
2. She testified that she never relayed to defendant that L
had made such a threat; and
3. She testified that she had previously told defendant to
stop looking for L on the street when she ran away because
“someone could think that he was trying to do something to
her and abusing her.”
We discuss each statement in turn.
First, the mother testified that L never threatened
to accuse defendant of touching her. And denying that L ever
made such a threat in the first place is distinct from saying
that she never told police about that threat. One could be
true and the other false—i.e., just because the mother did
not tell police about the threat does not mean that L never
made the threat. And whether L ever threatened to accuse
defendant of touching her in retaliation for his attempts at
discipline went to the heart of defendant’s theory of defense.
Second, during the state’s rebuttal case, the mother
denied telling defendant about L’s threat to accuse him of
“doing something to her.” In doing so, the mother contradicted defendant’s earlier testimony, in which he told the
jury that “[The mother] called me and she told me that I
shouldn’t do anything anymore, because [L] was going to
accuse me of something.” Consequently, not only did the
mother’s testimony directly contradict defendant’s version
of events, but if believed, it also undermined his credibility
overall.
Finally, the mother testified that she had told
defendant to stop looking for L on the street when she ran
away because “someone could think that he was trying to do
something to her and abusing her.” That testimony is significant because it presented a potential source for the claim
that L had threatened to accuse defendant of touching her.
That is, if jurors believed the statement, they could infer
Cite as 334 Or App 577 (2024) 585
that the mother’s general warning to defendant about her
own concerns was simply misinterpreted by defendant and
later by police as a threat that L had made. In essence, the
testimony provided a potential path to reconcile the contradictions between Herring, the mother, and defendant. Had
the jury credited the testimony, it could have found that L
had never threatened to accuse defendant of touching her
and that defendant and Herring simply misunderstood the
mother relaying her own concerns. Again, that would have
significantly undermined defendant’s theory at trial.
Together those three pieces of testimony were significant because—assuming the jury believed them—they
undermined defendant’s theory that L falsely accused him
of the crimes as she had previously threatened to do. Had
the “witness false in part” instruction been given, it might
have influenced whether the jury believed those three statements, which might have impacted the verdict. Therefore,
we cannot say that the failure to give the instruction had
little likelihood of affecting the verdict. Davis, 336 Or at 33.
Having determined that reversal is required, we turn next
to defendant’s MJOA argument because it will affect the
scope of that remand.
MOTIONS FOR JUDGMENT OF ACQUITTAL
As stated above, the state charged defendant with
seven counts of first-degree sexual abuse. Counts 1 through
3 named L as the victim and the remaining counts named
A. As charged, each count required the state to prove that
defendant “[s]ubjected another person to sexual contact”
while the person was “less than 14 years of age.” ORS
163.427(1).3 At trial, defendant moved for a judgment of
acquittal as to Counts 1 through 3, arguing that there was
3
ORS 163.427 provides:
“(1) A person commits the crime of sexual abuse in the first degree when
that person:
“(a) Subjects another person to sexual contact and:
“(A) The victim is less than 14 years of age;
“(B) The victim is subjected to forcible compulsion by the actor; or
“(C) The victim is incapable of consent by reason of being mentally incapacitated, physically helpless or incapable of appraising the nature of the
victim’s conduct; or
586 State v. Pozos
legally insufficient evidence that L was less than 14 years
of age at the time of the alleged conduct. Although the court
acknowledged that the evidence was unclear as to precisely
when the alleged conduct occurred, the trial court denied
defendant’s motions because it concluded that, despite the
ambiguity about timing, there was enough to infer that
the acts occurred before L turned 14 years old. On appeal,
defendant challenges that ruling.
“ ‘We review a trial court’s denial of a motion for a
judgment of acquittal for legal error, and we consider the
facts in the light most favorable to the state and draw all
reasonable inferences in the state’s favor,’ to determine
‘whether the evidence is sufficient to permit a rational factfinder to find all the elements of the charged crime beyond
a reasonable doubt.’ ” State v. Lugo, 322 Or App 477, 479,
520 P3d 917 (2022) (quoting State v. Yerton,
317 Or App 538,
539,
505 P3d 428 (2022)). We summarize the relevant facts
accordingly.
As described above, after defendant reported L to
police as a runaway, she returned home and made allegations to a police officer. She told the officer, “I was raped
in fifth grade and [defendant’s] been doing it for a while,
until like I turned 16.” She said it “happened a lot of times,”
and that it involved “sexual intercourse and everything.” L
told her boyfriend’s mother that defendant “raped” her when
she was 10 years old. And during an interview at CARES
Northwest, L explained that the conduct “started in fifth
grade” but that she did not remember the very first time
that it happened. She explained that “when nobody was
home, … [defendant] would touch me.” Defendant would
touch her vagina with his hands and penis, he would kiss
her, and he would make L touch him.
The state did not charge defendant with rape,
however, or allege a theory of sexual abuse involving sexual intercourse or contact between defendant’s penis and
L’s vaginal area. Instead, its three charges of first-degree
“(b) Intentionally causes a person under 18 years of age to touch or contact the mouth, anus or sex organs of an animal for the purpose of arousing
or gratifying the sexual desire of a person.
“(2) Sexual abuse in the first degree is a Class B felony.”
Cite as 334 Or App 577 (2024) 587
sexual abuse identified three specific factual theories: (1)
that defendant touched L’s “vaginal area with his hand”
(Count 1); (2) that he touched “her mouth with his mouth”
(Count 2); and that he “had her touch his penis with her
hand” (Count 3). During trial, the state elected as a factual
theory that “each of those counts is basically going to be the
first time that it happened.” Thus, the question is whether
the evidence summarized above was enough to establish the
first time that any of the three types of conduct specified in
the indictment occurred when L was less than 14 years old.
We recognize that “[t]here is a difference between
inferences that may be drawn from circumstantial evidence
and mere speculation.” State v. Vaughn, 175 Or App 192, 201,
28 P3d 636 (2001). “Reasonable inferences are permissible;
speculation and guesswork are not.” State v. Bivins,
191
Or App 460, 467,
83 P3d 379 (2004). Ultimately, we conclude
that there was insufficient evidence to establish that defendant committed the charged acts while L was less than 14
years old without resorting to speculation.
To put it simply, L alleged ongoing sexual abuse
that started when she was about 10 years old and ended
when she was about 16 years old. The only act that she identified as occurring at any specific time was the “rape” that
happened when she was in fifth grade (that is, when she was
about 10 or 11 years old). The state argues that L’s use of the
term “rape” allows for the inference that defendant committed all three charged acts when she was in fifth grade—or
at the very least, that defendant used his hand to touch L’s
vaginal area at that time. In other words, it argues that
the word “rape” necessarily involves that conduct. But we
disagree that that inference can reasonably be drawn from
that term alone. The term “rape” would certainly allow a
factfinder to reasonably infer that defendant’s penis touched
L’s vaginal area. But it does not describe conduct that necessarily involves defendant touching L’s vaginal area with
his hand, kissing, or having L touch defendant’s penis with
her hand. It is possible that L subjectively intended the term
“rape” to mean more than contact between defendant’s penis
and her vagina. But the jury could not have divined that
subjective intent without resorting to speculation.
588 State v. Pozos
The state also argues that, understood in context,
L’s statements in her interview at CARES Northwest indicate that the charged acts occurred when she was in fifth
grade. Specifically, it suggests that many of her descriptions of defendant’s conduct relate back to the “rape” that
occurred in the fifth grade. But having reviewed that interview in detail, we disagree. The context of L’s statements
in that interview did nothing to lessen the ambiguity as to
the timing of the charged conduct. Accordingly, we conclude
that the trial court erred when it denied defendant’s MJOAs
as to first-degree sexual abuse on Counts 1 through 3. That
leaves us to determine the proper remedy.
The parties do not address on appeal the subject of
lesser-included offenses. But the insufficiency of the evidence
as to Counts 1 through 3 is limited only to the age element of
the crimes, and as reflected in its verdict, the jury necessarily found that defendant subjected L to sexual contact when
she was less than 18 years old. That is, again, because it was
undisputed that the alleged sexual abuse involving L stopped
when she was 16 years old. That means the jury necessarily found the elements of the lesser-included offense of third-degree sexual abuse, ORS 163.415.4 That crime contains the
same elements as first-degree sexual abuse, except that the
age element is less than 18 years of age rather than 14.
Normally, that would require us to reverse the convictions on Counts 1 through 3 and remand for entry of convictions for those lesser-included offenses. See State v. Slater,
310 Or App 746, 759,
487 P3d 59 (2021) (explaining that we
may remand for entry of a conviction for a lesser-included
offense “where there is insufficient evidence to support the
defendant’s conviction for the charged offense, but where
the state proved all the elements of a lesser-included offense
that is subsumed in the charged offense”). However, the
error with regard to the “witness false in part” instruction
4
ORS 163.415 defines third-degree sexual abuse in relevant part as follows:
“(1) A person commits the crime of sexual abuse in the third degree if:
“(a) The person subjects another person to sexual contact and:
“…
“(B) The victim is incapable of consent by reason of being under 18 years
of age[.]”
Cite as 334 Or App 577 (2024) 589
necessitates the reversal of all convictions and remand for
a new trial on all counts. Therefore, it is not appropriate
to remand for entry of a conviction on the lesser-included
offenses. Nor is it appropriate to allow the state to retry
defendant for first-degree sexual abuse as to L. See State
v. Clyde,
328 Or App 222, 227,
537 P3d 170 (2023), rev den,
371 Or 825 (2024) (“Double jeopardy bars retrial after …
an appellate finding of insufficient evidence.”). Instead, as to
Counts 1 through 3, the state is limited on remand to pursuing convictions for the lesser-included offenses of third-degree sexual abuse. See State v. Burgess,
240 Or App 641,
649,
251 P3d 765 (2011) (crafting appropriate remedy when
neither outright reversal nor entry of lesser included conviction was appropriate on plain error review “given the idiosyncratic procedural posture” of the case).
MENTAL-STATE INSTRUCTION
Finally, we address defendant’s sixth assignment of
error, in which defendant argues that the trial court plainly
erred when it failed to instruct the jury that a “knowing”
mental state attached to the conduct element of first-degree
sexual abuse. We agree that the trial court plainly erred
in failing to instruct the jury as to the applicable mental
state. See State v. Peckron, 330 Or App 284, 287,
543 P3d
766, rev den,
372 Or 437 (2024) (“We agree that the trial
court plainly erred in failing to instruct the jury on the
required mental state for the element of subjecting the victim to sexual contact.”). However, because the error can be
easily avoided on remand, our decision to reverse on other
grounds means that we have no need to decide whether the
error was harmless or whether to exercise our discretion to
correct it.
Reversed and remanded.
