State v. Chitwood
| Decision Date | 17 March 2021 |
| Docket Number | A165817 |
| Citation | 483 P.3d 1157,310 Or.App. 22 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Nathan Thomas CHITWOOD, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Lindsey Burrows argued the cause and filed the briefs for appellant. Also on the opening brief was O'Connor Weber LLC.
Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
The state charged defendant with 19 sex offenses against a 13-year-old victim and one count of unlawful delivery of marijuana to the same minor. A jury unanimously found defendant guilty on three charges—one count of first-degree sexual abuse, one count of second-degree sodomy, and one count of second-degree rape—and acquitted him on the remainder. The trial court merged the guilty verdicts on the sexual abuse and sodomy charges and entered a judgment of conviction for one count of second-degree sodomy and one count of second-degree rape. Defendant appeals, contending that the trial court erred in four ways: (1) by denying defendant's motion in limine to introduce evidence of the victim's sexual activity; (2) by failing to, sua sponte , grant a mistrial or issue a curative instruction when the prosecutor, in rebuttal, argued that "if you determined that [defendant] should not reside with an adolescent girl, that's your moral certainty and I have proven my case beyond a reasonable doubt"; (3) by denying defendant's post-trial motion to question jurors after the court received a letter from one juror; and (4) by instructing the jury that it could convict defendant by a nonunanimous verdict. We affirm.
Motion in limine . The charges against defendant stemmed from his conduct involving his 13-year-old stepdaughter, B. Before trial, defendant moved in limine under OEC 412 for a ruling allowing him to introduce evidence that, during her CARES interview, the victim "admit[ted] to not being a virgin, outside of the allegations that are made in this case." Defendant argued that the evidence about the victim not being a virgin was constitutionally required to be admitted to counteract the possibility that the jury might infer that, because of her age, the only possible source of her sexual knowledge was the alleged crimes committed by defendant. The prosecutor argued in response that she did not intend to argue that it was inferable that the only place the victim could have obtained sexual knowledge was from defendant. She also noted that the victim's knowledge was not relevant to any element that the state had to prove. After hearing the parties’ arguments, the trial court denied the motion, ruling that Defendant did not seek to introduce the evidence at trial after the victim testified, or otherwise renew the motion to admit the evidence.
On appeal, defendant assigns error to the court's denial of his pretrial motion. He argues, as he did below, that the evidence was constitutionally required to be admitted under OEC 412(2)(b)(C). The state responds that, especially considering the limited record before it at the time it ruled on defendant's motion, the court did not err.
Our review of the trial court's ruling is for legal error. State v. Fowler , 225 Or. App. 187, 193, 200 P.3d 591, rev. den. , 346 Or. 257, 210 P.3d 905 (2009) (). OEC 412 generally bars the introduction of evidence of a crime victim's past sexual behavior in the prosecution of a sex offense unless the evidence falls within one of the rule's exceptions. OEC 412(2) ; Fowler , 225 Or. App. at 192-94, 200 P.3d 591. Here, defendant contends that the applicable exception is OEC 412(2)(b)(C), which allows for the admission of a victim's past sexual behavior when "otherwise constitutionally required to be admitted." Defendant argues that the evidence was constitutionally required to be admitted in furtherance of his right to present a defense.
"In determining whether evidence must be admitted because excluding it would infringe on a defendant's constitutional rights to confront witnesses and 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 , 225 Or. App. at 193-94, 200 P.3d 591 (brackets and internal quotation marks omitted). As we have explained, "Under OEC 412, the state's interest is in protecting victims of sexual crimes from degrading and embarrassing disclosure of intimate details about their personal lives, thereby encouraging victims to report and assist in the prosecution of the crime." Id. at 194, 200 P.3d 591 (brackets and internal quotation marks omitted).
In this case, defendant's claimed need for introducing the evidence was to rebut the inference that the only way the victim could have obtained her sexual knowledge was through the alleged conduct involving defendant. But the limited record before the court at the time of its pretrial ruling does not compel the conclusion that defendant's need for the evidence outweighed the state's interest in excluding it. As the state points out, the victim was 13 years old, an age at which it would not be unreasonable to think that she had acquired some degree of knowledge about sex through exposure to the world. Further, on the record before the trial court at the time of its ruling, there was little reason to think that cross-examination could not be used to demonstrate that the victim had sexual knowledge acquired from sources other than defendant. See State v. Weeks , 99 Or. App. 287, 291 n. 2, 782 P.2d 430 (1989), rev. den. , 309 Or. 334, 787 P.2d 889 (1990) (). Finally, the prosecutor represented that she would not be arguing that the jury should infer that defendant committed the crimes based on the notion that the victim would not otherwise have knowledge about the conduct that she was describing. Under those circumstances, the court was correct to conclude that defendant had not demonstrated pretrial that the evidence was constitutionally required to be admitted.
Closing argument . In his second assignment of error, defendant argues that the trial court erred when it did not grant a mistrial or issue a curative instruction when the prosecutor made the following argument to the jury during closing argument rebuttal:
Defendant did not object to the prosecutor's closing argument. He argues, however, that the trial court, on its own, (1) should have recognized that the prosecutor's reference to the jury impermissibly relied on evidence outside the record when talking about the prospective juror, (2) should have recognized that the prosecutor's description of what it meant to have moral certainly inaccurately characterized the burden of proof, and (3) should have issued either a curative instruction or granted a mistrial.
Had defendant made his objections to the trial court, it would have been incumbent on the court to, at a minimum, issue a curative instruction. It is not permissible to base closing argument on extra-record evidence. State v. Spieler , 269 Or. App. 623, 641, 346 P.3d 549 (2015). And the prosecutor's assertion that she had proved her case beyond a reasonable doubt if the jury felt that defendant should not live with an adolescent girl is not an accurate statement of the law and risked misleading the jury into thinking it could convict based on its comfort level with defendant living with an adolescent girl. That appeal was, in effect, an impermissible plea to the jury to decide the case based on how the evidence made it feel about defendant, instead of deciding it based on a determination that it was persuaded by the evidence that defendant had committed the charged crimes. See State v. Lundbom , 96 Or. App. 458, 461, 773 P.2d 11, rev. den. , 308 Or. 382, 780 P.2d 735 (1989) (). But defendant did not object so we are in a plain error posture, which means that we would have to be persuaded to exercise our discretion to correct the alleged error, were we to conclude that it was plain.
We are not persuaded to do so here. As an initial matter, the record does not compel the conclusion that defendant was denied a fair trial because of the prosecutor's remark. See State v. Montez , 324 Or. 343, 357, 927 P.2d 64 (1996), cert. den. , 520 U.S. 1233, 117 S.Ct. 1830, 137 L.Ed.2d 1036 (1997) (...
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State v. Chitwood, CC 15CR48036 (SC S068655)
...deny defendant a fair trial and that there was a possibility that defense counsel's failure to object was strategic. State v. Chitwood , 310 Or App 22, 483 P.3d 1157 (2021). We allowed defendant's petition for review and now hold that the prosecutor's argument constituted plain error: The p......
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State v. Chitwood
...of deciding it based on a determination that it was persuaded by the evidence that defendant had committed the charged crimes." Chitwood, 310 Or.App. at 27. The court noted, however, that "defendant did not object[,] so we are in a plain error posture." That, the court said, "means that we ......