State v. Champagne
| Decision Date | 29 March 2023 |
| Docket Number | A175059 |
| Parties | STATE OF OREGON, Plaintiff-Respondent, v. MICHAEL WAYNE CHAMPAGNE, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Argued and submitted October 21, 2022.
Clackamas County Circuit Court 19CR60073; Katherine E. Weber Judge.
Morgen E. Daniels, 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.
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 Hellman, Judge, and Landau, Senior Judge.
In this criminal case, defendant was convicted of committing various sexual offenses against two children, both of whom were under 12 years old at the time of the charges. On appeal, defendant argues that the court erred in three ways: First, the trial court erred in admitting evidence that defendant had previously sexually abused a third child; second, the court erred in failing to strike, sua sponte, testimony of the mother of one of the victims that amounted to impermissible vouching; third, the court erred in entering an amended judgment without providing written notice to him. For the reasons that follow, we affirm.
We begin with a brief description of the relevant facts and leave a detailed description of those facts that are pertinent to each assignment of error in our discussion of each assignment.
The state charged defendant with multiple sexual offenses, including first-degree rape and first-degree sodomy, against his granddaughter A and his step-granddaughter O. The children were between the ages of six and nine when the offenses occurred. At trial, the court admitted the testimony of B, who testified that defendant had sexually abused her as well, some years earlier. The court also admitted the testimony of O's mother, who described how O and A had reported that defendant had been abusing them. The prosecutor asked O's mother about her daughter's "character for truthfulness," and O's mother replied that she believed her daughter to be truthful. There was no objection to the question or the answer. A jury ultimately found defendant guilty of all counts, and the trial court orally imposed a sentence of 25 years in prison on each of four of the counts, as required by ORS 137.700. The written judgment, however, erroneously sentenced defendant to 25 months in prison on those counts. A month later, the trial court entered an amended judgment that reflected the sentence that had been announced at the sentencing hearing. The court did not provide defendant with prior notice that it planned to amend the judgment.
Defendant first assigns error to the admission of B's testimony that, some years earlier, defendant had abused her. Before trial, the state filed a motion to admit that testimony, arguing that the evidence was relevant and admissible as nonpropensity evidence under OEC 404(3) and, in the alternative, as propensity evidence under OEC 404(4).
As to OEC 404(3), the state argued that the evidence was admissible to show defendant's sexual purpose, which the state argued was "different than using the evidence to establish defendant's character and propensity to act accordingly." The state argued that the evidence should not be excluded under OEC 403 because it had significant probative value, in that it showed a consistent and repeated pattern of inappropriate conduct around children and described acts that were "uncannily similar" to some of the acts described by O, and that evidence, although prejudicial, was not unfairly so and did not improperly appeal to the preferences of the trier of fact for reasons unrelated to the power of the evidence to establish a material fact.
As to admissibility under OEC 404(4), the state argued that defendant's sexual interest in children was highly relevant to prove that he acted on that interest and with that purpose on the charged occasion, citing State v. Williams, 357 Or. 1, 346 P.3d 455 (2015). The state again argued that such propensity evidence should not be excluded under OEC 403 for two reasons. First, citing United States v. LeMay, 260 F.3d 1018, 1029 (9th Cir 2001), the state argued that defendant was expected to suggest that O and A were fabricating, and so the evidence was necessary to bolster the credibility of the victims. Second, in a related vein, the state noted that defendant was expected to call an expert witness, Dr. Bourg, who would opine that the victims' reports had been tainted by O's mother's belief that defendant was someone who might sexually abuse children. According to the state, the evidence of defendant's prior sexual interest was necessary to counter Bourg's testimony.
Defendant responded that the prior-acts evidence was relevant but not for "a noncharacter purpose." Defendant argued that "if the Court allows [B] to testify, * * * I just think it's impossible for him to have a fair trial in this matter."
Judge Rastetter, who heard the pretrial motion, agreed with the state, ruling as follows:
Judge Weber later presided over defendant's trial, and she and the parties attempted to determine the exact scope of Rastetter's pretrial ruling. Weber explained that she was "simply interpreting his ruling and making a decision based on the evidence the State seeks to introduce."
Weber ultimately concluded that the pretrial ruling "clearly allows [B] to testify" but that the ruling also "clearly requires me to severely limit what may be presented through [B's] testimony," such that B was allowed to testify as to her "age, basis of relationship, number of times, circumstances, how it was initiated and progressed, and that it was essentially always the same and that's it." B testified at trial in a manner consistent with that ruling.
The trial court later instructed the jury that it "cannot use evidence relating to [defendant's] past conviction or conduct for the purpose of concluding that because [defendant] sexually abused [B] in 2002, he is guilty of sexually abusing [A or O] in this case" but "may take into account evidence that [defendant] has a sexual interest in children to determine whether he was acting on that interest on the occasion of each charge-each charge[d] act involving [A and O]."
On appeal, defendant argues that the trial court erred in admitting evidence of his sexual abuse of B under either OEC 404(3) or OEC 404(4). In light of intervening case law, the state does not attempt to defend the trial court's reasoning under OEC 404(3), and we accept that concession of error. See State v. Powers, 323 Or.App. 553, 563-64, 523 P.3d 1112 (2023) (). Rather, the state's position is that the trial court's admission of the evidence was permissible under OEC 404(4) as propensity evidence.
Defendant acknowledges that the evidence is relevant under OEC 404(4) as propensity evidence. He argues that the evidence nevertheless is inadmissible because the trial court failed to separately balance the relevance of that evidence as propensity evidence against its potential prejudice under OEC 403. According to defendant, the court (first Rastetter, and then Weber adhering to that ruling) admitted the evidence as both propensity and nonpropensity evidence and failed to conduct distinct OEC 403 balancing for purposes of OEC 404(4).
Evidence that is not relevant for a nonpropensity purpose may still be admissible under OEC 404(4) as propensity evidence, provided-among other things-the probative value of that evidence is not substantially outweighed by the danger of unfair prejudice under OEC 403. State v. Baughman, 361 Or. 386, 405, 393 P.3d 1132 (2017). More specifically, in child sex abuse cases, evidence of prior sexual misconduct may be admissible under OEC 404(4) to prove a defendant's character and propensity, provided that the evidence is not subject to exclusion under the balancing required under OEC 403. Williams, 357 Or at 20.
The balancing process under OEC 403 is distinct in the case of propensity evidence, however, because of the significant due process concerns that are associated with its highly prejudicial nature. State v. Skillicorn, 367 Or 464,477-78, 482 n 4, 479 P.3d 254 (2021). ...
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