State v. Conrad

• Decision Date: 24 August 2016
• Docket Number: A154218
• Citation: 280 Or.App. 325,381 P.3d 880
• Parties: State of Oregon, Plaintiff–Respondent, v. Robert Benjamin Conrad, Defendant–Appellant.
• Court: Oregon Court of Appeals

280 Or.App. 325

381 P.3d 880

State of Oregon, Plaintiff–Respondent,

v.Robert Benjamin Conrad, Defendant–Appellant.

A154218

Court of Appeals of Oregon.

Submitted February 25, 2015.

August 24, 2016

Peter Gartlan, Chief Defender, and Neil F. Byl, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Andrew M. Lavin, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

ORTEGA

, P.J.

Defendant appeals a judgment entered after a jury found him guilty of four counts of first-degree sexual abuse, ORS 163.427

. On appeal, he challenges the trial court's merger of the guilty verdicts on Counts 1 and 2 “for sentencing purposes,” the court's admission of video recordings of the victims' CARES interviews, and the court's imposition of a mandatory minimum sentence under ORS 137.707(2) of 75 months' imprisonment on Counts 1, 3, and 4. For the reasons that follow, we conclude that defendant's merger challenge is moot, that we have a sufficient basis to affirm the court's admission of the video recordings as being within the court's allowable discretion, and that defendant's challenge to his sentence is not well taken. Accordingly, we affirm.

Because the jury found defendant guilty, we state the relevant background facts in the light most favorable to the state. State v. Washington , 355 Or. 612, 614, 330 P.3d 596 (2014)

. Defendant, who was 15 to 16 years old at the time of his crimes, occasionally babysat the victims, A and N, who are sisters. A and N, who were both under the age of 13 at the time of defendant's crimes, reported to their mother that defendant had kissed them.

Their mother reported those allegations to the police, who took a report and told her to schedule an appointment with CARES for an evaluation. At CARES, both girls were interviewed by a staff member. During A's interview, she reported that defendant had kissed her, touched her breasts with his hands and mouth, and tried to touch her vagina. N reported similar abuse during her interview.

Defendant was indicted by a grand jury of four counts of first-degree sexual abuse for knowingly subjecting two children less than 14 years of age to sexual contact. Counts 1 and 2 related to his abuse of A, and Counts 3 and 4 related to his abuse of N. Prior to trial, defendant filed a motion in limine to exclude the video recordings of the CARES interviews. Defendant first argued that the evidence was prohibited because the videos contained “testimony” and ORS 136.420¹

restricts criminal trials to in-court testimony.

Alternatively, defendant argued that the video interviews were “overly prejudicial versus [their] probative value” and should be excluded under OEC 403

.² The court denied defendant's motion at a pretrial hearing.

At trial, both victims testified about defendant's abuse. At times, their testimony was consistent with their CARES interviews. However, the testimony of both victims at trial was also inconsistent with their CARES interviews in some ways. For purposes of our decision, a discussion of the consistencies and inconsistencies between the recorded interviews and trial testimony is unnecessary. Defendant testified in his defense that none of the abuse had occurred.

The jury returned a guilty verdict on all four counts. At sentencing, the state asked the trial court to impose a mandatory minimum sentence under ORS 137.707(2)

of 75 months' imprisonment on each count. Defendant asserted that the statutory sentencing scheme was facially unconstitutional because it precluded the court from taking into account a juvenile defendant's age when sentencing a juvenile defendant to a mandatory minimum sentence. He also argued that a mandatory minimum sentence of 75 months' imprisonment under ORS 137.707(2) was unconstitutional as applied to him under the methodology set out in State v. Rodriguez/Buck , 347 Or. 46, 217 P.3d 659 (2009).

The court entered a judgment that merged Count 2 with Count 1 “for the purposes of sentencing” and sentenced defendant to 75 months' imprisonment on each of Counts 1, 3, and 4. The court imposed the 75 months' imprisonment on Counts 1 and 4 concurrently, and 25 months of the sentence on Count 3 consecutively to the sentence imposed on Count 1. Accordingly, defendant was sentenced to serve a minimum of 100 months' imprisonment without eligibility for a reduction in his sentence. Defendant appeals.

In his first assignment of error, he asserts that, although the trial court merged his two guilty verdicts on Counts 1 and 2 “for the purposes of sentencing,” the court erroneously failed to enter a single conviction on those merged verdicts. The state concedes that error, and, shortly after briefing was completed in this appeal, the trial court entered an amended judgment that merged the guilty verdicts into a single conviction and removed any reference to “for the purposes of sentencing.” Accordingly, that assignment of error is moot, and we do not address it. See Dept. of Human Services v. B. A. , 263 Or.App. 675, 678, 330 P.3d 47 (2014)

(“A case is moot when it involves a matter that no longer is a controversy between the parties.”).

In defendant's second assignment of error, he asserts, in two separate arguments, that the court erred by admitting into evidence the recordings of the victims' CARES interviews. Defendant's first argument is that ORS 136.420

required the court to exclude the videos because that statute restricts “testimony” in a criminal action to that presented in court by live witnesses. Defendant's reliance on ORS 136.420 is foreclosed by our decision in State v. McMullin , 269 Or.App. 859, 346 P.3d 611, rev. den. , 357 Or. 640, 360 P.3d 523 (2015). There, in the face of a challenge to the admission of a videotaped interview of a child victim, we explained that, because “ORS 136.420 has long been interpreted as a statutory confrontation right that is ‘coextensive in scope’ with Article I, section 11, of the Oregon Constitution [,] * * * ORS 136.420 is not violated by the introduction into evidence of out-of-court statements, so long as a defendant's state constitutional confrontation rights are met.” 269 Or.App. at 860–61, 346 P.3d 611. We held that the defendant's confrontation rights under Article I, section 11, were satisfied in McMullin “because the victim testified at trial and was subject to cross-examination.” Id. at 861, 346 P.3d 611 ; see also State v. Wixom , 275 Or.App. 824, 842, 366 P.3d 353 (2015)

, rev. den. , 359 Or. 166, 376 P.3d 280 (2016) (same), and State v. Rascon , 269 Or.App. 844, 847–48, 346 P.3d 601, rev. den. , 357 Or. 596, 358 P.3d 1002 (2015) (same). Similarly here, the two child victims testified at trial and were subject to cross-examination. It necessarily follows that defendant's state constitutional confrontation rights were satisfied in this case, and admission of the CARES videotapes did not violate ORS 136.420.

Defendant also challenges the admission of the CARES videotapes under OEC 403

. Defendant first argues that the record does not reflect that the court conducted OEC 403 balancing according to the method established in State v. Mayfield , 302 Or. 631, 733 P.2d 438 (1987). The state asserts a contrary view.

In Mayfield

, the court set out the following test:

“In making this decision under OEC 403

, the judge should engage in four steps. First, the trial judge should assess the proponent's need for the uncharged misconduct evidence. In other words, the judge should analyze the quantum of probative value of the evidence and consider the weight or strength of the evidence. In the second step the trial judge must determine how prejudicial the evidence is, to what extent the evidence may distract the jury from the central question whether the defendant committed the charged crime. The third step is the judicial process of balancing the prosecution's need for the evidence against the countervailing prejudicial danger of unfair prejudice, and the fourth step is for the judge to make his or her ruling to admit all the proponent's evidence, to exclude all the proponent's evidence or to admit only part of the evidence.”

302 Or. at 645, 733 P.2d 438

.

In conducting balancing under OEC 403

, the court must “make a record which reflects an exercise of discretion.” Id. That is so because we review a trial court's decision to admit evidence over an OEC 403 objection for an abuse of discretion, State v. Brumwell , 350 Or. 93, 107, 249 P.3d 965 (2011), cert. den. , ––– U.S. ––––, 132 S.Ct. 1028, 181 L.Ed.2d 757 (2012), and we need a sufficient record to conduct meaningful appellate review of that exercise of discretion. See, e.g. , State v. Meyers , 132 Or.App. 585, 589, 889 P.2d 374 (1995) (trial court established sufficient record for our review). In that vein, we have explained that Mayfield “is a matter of substance, not form or litany.” State v. Brown , 272 Or.App. 424, 433, 355 P.3d 216, rev. den. , 358 Or. 145, 363 P.3d 1288 (2015). Accordingly, a court's OEC 403 decision meets the requirements of Mayfield even if a trial court does not expressly follow the Mayfield analysis, as long as the “record establishes that, in deciding to admit [the evidence], the trial court considered the matters prescribed in Mayfield.” State v. Borck , 230 Or.App. 619, 637, 216 P.3d 915, adh'd to as modified on recons , 232 Or.App. 266, 221 P.3d 749 (2009)

, rev. den. , 348 Or. 291, 231 P.3d 795 (2010). That is, we review whether the “totality of the attendant circumstances indicate that the court * * * engage[d] in the conscious process of balancing the costs of the evidence against its benefits that Mayfield requires.” Id. at 638, 216 P.3d 915 (internal quotation marks omitted).

In this case, defendant filed a pretrial motion in limine to exclude the CARES recordings. In that motion, defendant asserted that the videos were of low probative value...