State v. Williams

• Decision Date: 14 August 2013
• Docket Number: 08CR0707,A145644.
• Citation: 308 P.3d 330,258 Or.App. 106
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Shawn Gary WILLIAMS, Defendant–Appellant.
• Court: Oregon Court of Appeals

258 Or.App. 106

308 P.3d 330

STATE of Oregon, Plaintiff–Respondent,

v.Shawn Gary WILLIAMS, Defendant–Appellant.

08CR0707; A145644.

Court of Appeals of Oregon.

Argued and Submitted June 27, 2012.

Decided Aug. 14, 2013.

Mary M. Reese, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Patrick M. Ebbett, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.

NAKAMOTO, J.

Defendant was convicted after a jury trial of two counts of first-degree sexual abuse, ORS 163.427, for his conduct involving a five-year-old girl. The state was required to prove that defendant touched or attempted to touch the child's sexual or other intimate parts “for the purpose of arousing or gratifying the sexual desire of” either party. ORS 163.427(1)(b); ORS 163.305(6) (defining sexual contact). On appeal, defendant advances four assignments of error. He contends that the trial court erred in (1) admitting evidence that he possessed two pairs of little girls underwear as relevant to his specific, sexual intent, (2) allowing the prosecution to play a recording of his interview by a detective, during which the detective repeatedly commented on his credibility, and concluding that a curative instruction was sufficient to address those comments, (3) denying defendant's motion for a mistrial based on the detective's comments on his credibility, and (4) allowing a nonunanimous jury verdict. We do not reach his second through fourth assignments because, as to the first assignment of error, we conclude that the trial court erred, and we reverse and remand for a new trial.

FACTS

Defendant met the child's mother one Saturday night at a bar. They spent most of the night together at the mother's apartment and planned a rafting trip for the next day. The next day, defendant met the child and her mother to go shopping for supplies for the trip. At the store, defendant picked up the child and placed her over his shoulders, and she rode on his shoulders while they shopped. That evening, after their outing, they returned to the mother and child's apartment. At the apartment, the child's mother went outside to the patio area to smoke while defendant and the child were wrestling on the couch. Mother came back inside and wanted to take a shower, and defendant volunteered to watch the child. When the child's mother left the room, she observed defendant sitting on the couch and the child sitting on the floor in front of the couch. Mother showered for approximately 10 minutes and rejoined the two on the couch.

After another date with defendant, the child's mother asked the child what she thought of defendant. In response, the child said, “I don't know about him, mommy,” and, when her mother asked the child to elaborate, she replied, “Mommy, the other day when you were in the shower, he tickled my potty and made me touch his.” Her mother asked whether defendant “tickled” the child over her underwear, and the child put her hand inside her underwear and wiggled her fingers, saying “he did this.”

The child's mother called the police, and Grants Pass Detective Pierce interviewed the child. During the interview, the child identified defendant as the person who had touched her. The child told Pierce that the touching occurred when her mother was in the shower and also once before the rafting trip. After conducting the initial interview of defendant, Pierce contacted Detective Lidey to assist her with the investigation.

Eventually, after Lidey had interrogated defendant twice, defendant was charged with two counts of sexual abuse in the first degree based on events after the rafting trip. In Count 1, the state alleged that defendant had had sexual contact with the child by touching her vagina, and the state alleged in Count 2 that he had caused the child to touch his penis.

Pierce's interview of defendant was recorded, and the state played the recording for the jury. Pierce told defendant that the child had made an “accusation” of “some kind of touching,” and defendant denied ever being alone with the child. When Pierce told defendant that the allegation occurred while the child's mother was in the shower, defendant replied that he was only alone with the child for ten minutes and explained that, during that time, the child was sitting on the floor watching a movie and he was lying on the couch. Pierce asked if the child had ever lain on him while on he was on the couch, and he said no. He stated that he had never seen the child naked and repeatedly denied touching the child's private area. Defendant explained that he may have touched the child's private area inadvertently once when he picked her up and carried her on his shoulders while they were shopping for supplies for the rafting trip.

Although both of Lidey's interrogations of defendant were recorded, the state played only the audio recording of Lidey's first interrogation, which was approximately 45 minutes long, for the jury. During that interrogation, defendant admitted that he and the child wrestled, but stated, “I did not touch her anywhere intentionally, or that I hadn't touched her at all that I'm aware of. But in the course of wrestling * * * I could grab anywhere, and just to throw her off or throw her in, something like that.” Lidey asked whether defendant accidentally touched the child's vagina, and defendant said no. During Lidey's second interrogation of defendant, defendant had said that, when the child was lying on top of him on the couch, his hands “could have landed in her crotch area” while he was napping.

The child testified at trial. She described defendant using his fingers to touch her vagina underneath her underwear and grabbing her hand and putting her hand, over his clothing, on his “front private” area.

The state also presented testimony from defendant's landlord, the owner of a small cabin, over defendant's objection. The landlord testified that she had rented the cabin to defendant for approximately five or six months. Before defendant moved in, she had cleaned the cabin, including moving around the mattress on the bed in the bedroom. There were no girls underwear in the cabin at that time. When the landlord evicted defendant and cleaned the cabin, it still contained some of defendant's belongings. She discovered little girls underwear in his duffel bag and a second pair in between the mattresses on the bed where, she testified, no child could have placed it. The court admitted the two pairs of underwear that the landlord found in defendant's cabin into evidence.

Before trial, defense counsel sought to exclude the landlord's testimony, arguing that its sole purpose was to prejudice the jury against defendant by suggesting that he has “a problem with little girls.” The trial court deferred ruling until trial. At trial, defendant argued that there was insufficient evidence to support a finding that he possessed the underwear; the underwear was in any event irrelevant, because it did not support an inference that a single man who possesses girls underwear is sexually attracted to little girls; and its admission was unfairly prejudicial under OEC 403. The state argued that the evidence was relevant to show that defendant touched the child with a sexual purpose by placing his hand inside her underwear. The state reasoned that the evidence was relevant to rebut defendant's explanation that he may have touched the child accidentally when they were wrestling or when he was asleep on the couch.

After hearing the state's offer of proof and the parties' arguments, the trial court determined that there was sufficient evidence to support a finding that defendant possessed the underwear, that defendant's intent was a key issue for the state at trial, and that the evidence was relevant to the issue of whether “any touching that occurred in this case was with sexual intent.” The court also determined that the prejudicial impact of the evidence did not outweigh its probative value and overruled defendant's objections.

Defendant also testified at trial. He acknowledged that his arm and his neck had contact with the child's crotch while he was lifting her and carrying her around the store on his shoulders, but he denied touching the child inappropriately. He said that, after the rafting trip, while the child's mother was smoking on the patio, he and the child, alone in the apartment, began wrestling on the couch. The child was wearing a “miniskirt.” After a few minutes, defendant felt tired, stopped playing with the child, and lay on the couch. The child then had lain on top of defendant with her back on his chest and her hips on his hips, and defendant put his arms around her chest. While the child's mother came back inside and took a shower, the child was on the floor watching a movie.

Ultimately, the jury found defendant guilty on both counts of first-degree sexual abuse.

ANALYSIS

We begin with defendant's first contention—that is, that the trial court erred in admitting testimony that he possessed two pairs of little girls underwear as relevant to the issue of whether “any touching that occurred in this case was with sexual intent.” Defendant argues that the state offered the “other act” evidence regarding his possession of the underwear to establish that he was a pedophile, which was inadmissible character evidence, OEC 404(3), and not for a legitimate noncharacter purpose. Defendant also contends that the evidence, if at all relevant, should have been excluded under OEC 403. The state responds that its evidence of defendant's possession of little girls underwear was relevant for a noncharacter purpose and, therefore, OEC 404(3) is inapplicable. Specifically, the state argues that defendant's...