State v. Antoine

• Decision Date: 11 February 2015
• Docket Number: C100942CR,A149373.
• Citation: 269 Or.App. 66,344 P.3d 69
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Jeremy Emil ANTOINE, Defendant–Appellant.
• Court: Oregon Court of Appeals

269 Or.App. 66

344 P.3d 69

STATE of Oregon, Plaintiff–Respondent

v.Jeremy Emil ANTOINE, Defendant–Appellant.

C100942CR

A149373.

Court of Appeals of Oregon.

Submitted Oct. 31, 2013.

Decided Feb. 11, 2015.

Peter Gartlan, Chief Defender, and Robin A. Jones, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Douglas F. Zier, Senior Assistant Attorney General, filed the brief for respondent.

Before ARMSTRONG, Presiding Judge, and NAKAMOTO, Judge, and EGAN, Judge.

Opinion

NAKAMOTO, J.

Defendant was convicted of all nine felonies charged: four counts of sodomy, four counts of first-degree sexual abuse, and one count of furnishing sexually explicit material to the victim, a primary-school-aged girl. Each count of sodomy and of sexual abuse alleged commission of a crime during the same 25–month period, using the words of the relevant criminal statute. Through a demurrer, defendant unsuccessfully challenged the form of the indictment based on its lack of specificity and the greater number of acts of sodomy and sexual abuse presented to the grand jury than charged in the indictment. At trial, after the state presented its case-in-chief, the state “elected” and ascribed specific and separate criminal acts to each of the counts. Defendant then unsuccessfully opposed the state's election by way of his motion for judgment of acquittal and objected to the court's jury instructions that were crafted in accordance with the state's election.

On appeal, defendant challenges the trial court's adverse rulings on his demurrer, motion for judgment of acquittal, and objection to the jury instructions.¹ He argues that his constitutional rights were violated because of insufficient notice of the charges, because of the risk of double jeopardy, and because of the state's failure to try him for criminal acts for which the grand jury indicted him, in contravention of Article VII (Amended), section 5(3), of the Oregon Constitution. For the reasons that follow, we affirm.

I. BACKGROUND

A. The grand jury indictment

The relevant facts are procedural and undisputed. Each of the charges arose from the allegations of the young daughter of defendant's former girlfriend. The victim reported that defendant had, on multiple different occasions, engaged in various sexual acts with her over a period of time between 2006 and 2008 when defendant was living with her and her mother. A grand jury indicted defendant on four counts of first-degree sodomy, ORS 163.405 ;² four counts of first-degree sexual abuse, ORS 163.427 ;³ and one count of furnishing sexually explicit material to a child, former ORS 167.054 (2007), repealed by Or. Laws 2011, ch. 681, § 10.⁴

The sodomy allegations were couched in the wording of ORS 163.405. In wording that was repeated for each of the sodomy counts, the indictment charged:

“That as a separate act and transaction from [each of the other counts]: The defendant, on or between September 1, 2006 and October 1, 2008, in Washington County, Oregon, did unlawfully and knowingly have deviate sexual intercourse with [the victim], a child under 12 years of age.”

The charges of sexual abuse were couched in the wording of ORS 163.427 and similarly repetitive. For each of the sexual-abuse counts, the indictment charged:

“That as a separate act and transaction from [each of the other counts]: The defendant, on or between September 1, 2006 and October 1, 2008, in Washington County, Oregon, did unlawfully and knowingly subject [the victim], a child under 14 years of age, to sexual contact by touching [the victim]'s genitalia, a sexual and intimate part of the child.”

Lastly, the count of furnishing sexually explicit material to a child provided:

“That as a separate act and transaction from that alleged in Counts 1–8: The defendant, on or between September 1, 2006, and October 1, 2008, in Washington County, Oregon, did unlawfully and intentionally furnish and permit [the victim], a child, to view sexually explicit material, defendant knowing that the material was sexually explicit.”

B. Discovery and the demurrer

The state provided defendant with 84 pages of documents and six compact discs in discovery. The discovery included at least four police reports, a report and a video from a child abuse assessment center, various other recorded interviews with witnesses, and miscellaneous notes and documents. The discovery indicated that the victim had reported a greater number of criminal sexual acts than were alleged in the indictment.

As a result, defendant filed a demurrer under ORS 135.630(2) (providing that a defendant may demur to a charging instrument when it “does not substantially conform to the requirements of,” among other statutes, “ORS 132.510 to 132.560 ”). Defendant contended that, despite having received discovery from the state, the indictment was not sufficiently definite and certain as required by ORS 132.550(7) (providing that an indictment must contain a “statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended”). Defendant's demurrer was based on the fact that the indictment's counts of sodomy and sexual abuse were not tied to specific facts and the discovery disclosed that the counts charged in the indictment were but a subset of the number of criminal acts that the victim had reported. Specifically, he asserted that the indictment provided insufficient notice of the charges, placed him at risk of double jeopardy, and failed to ensure that he was being tried only for those criminal acts for which the grand jury had indicted him. Defendant requested that the court dismiss the indictment and require the state to go back to the grand jury and obtain an indictment based on specific criminal acts.

The prosecutor told the court that the state could adequately resolve the problem by making an election of the specific criminal acts for which it would seek convictions at trial. The prosecutor explained:

“What the Defense—what the crux of the argument essentially is[,] is they're saying to the Court, ‘Look, when we try and take the indictment and we match it up against the discovery, we can't really figure out exactly what Count 1 relates to and what Count 2 relates to.’ And when they're going through there they say, ‘Well, you know, the CARES reports, she talks about this. The police reports, she kind of describes it a little bit differently. What's what? What's going on here?’ * * * And the response to that is that the State can be required to[,] and in fact I believe will[,] make an election during its case when the State elects what the different counts are going to relate to.

“And the purpose of an election is so that at the close of the State's case when the jurors—as the Court knows, when the jurors are deliberating * * * we want to make sure that jurors 1 through 12 when they're thinking about Count 1,* * * they're all thinking about the time it happened, you know, in the master bedroom instead of having some of them think about the master bedroom and some[ ] thinking about the garage. * * * But the State will make an election if the Defense requests it to do so. * * * That's the way that we deal with this situation.”

Thus, the state put defendant on notice at the hearing on the demurrer that it would make its election after it presented its case-in-chief. Defendant did not object to the timing of the election.

The court overruled the demurrer. In a letter opinion, it concluded that the indictment was sufficient in all the challenged respects. The court also ordered the state to comply with the following requirement:

“[W]hen the prosecution makes its election during the course of trial, it must only choose to rely upon factual incidents relied upon by the grand jury in returning the indictment. (In this particular case, this will require coordination between the deputy district attorney who presented the case to the grand jury and the deputy district attorney who presents the case at trial.)”

Before trial, in accordance with the above-quoted ruling, defendant moved, unsuccessfully, for an order requiring the state to disclose grand jury notes. The information disclosed at the hearing on that motion is pertinent to the issues on appeal.

Defendant stated that other newly received discovery provided more indications that the acts alleged by the victim did not correspond to the charges in the indictment. Specifically, defendant explained that, based on recently produced notes of interviews of the victim conducted by a police detective and the prosecutor,

“[the victim] stated that there was one instance of mouth to penis and on[e] instance of mouth to vagina. And then the others were hand to penis. So I got what looks like, I don't know, eight or ten or twelve sex abuse ones potentially in th[ose] new notes and only two sodomies.”

In response, the prosecutor confirmed that the grand jury had selected a subset of the incidents of abuse for the indictment and described the procedures that the state had employed before the grand jury:

“[I]n this case, as in so many other sex abuse cases, we don't allege a charge for every single time a criminal act occurred. For example, the child comes in and says, ‘Over the course of two years he touched me so many times, you know, once a week, twice a week,’ we're not going to put a, you know, 700–count indictment. It would just—wouldn't make sense to do that.

“So frequently we find ourselves in a situation where we pick and choose, and we can do that in one of two ways. We can have the grand jury consider the whole or the entirety of the evidence, and then we can say, ‘Okay, grand jury, we'd like you to vote on four,’ let's say it's Sex Abuse I's, And when you vote on these four Sex Abuse I's, Count I is going to relate to the time in the kitchen. Count 2's going to be the time in

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