State v. Cox

• Decision Date: 22 July 2015
• Docket Number: A150871.,11C51417
• Citation: 359 P.3d 257,272 Or.App. 390
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Timothy Allan COX, Defendant–Appellant.
• Court: Oregon Court of Appeals

272 Or.App. 390

359 P.3d 257

STATE of Oregon, Plaintiff–Respondent

v.Timothy Allan COX, Defendant–Appellant.

11C51417

A150871.

Court of Appeals of Oregon.

Argued and Submitted Jan. 21, 2014.

Decided July 22, 2015.

Robin A. Jones, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Ryan Kahn, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before DUNCAN, Presiding Judge, and NAKAMOTO, Judge, and DeVORE, Judge.

Opinion

NAKAMOTO, J.

Defendant appeals a judgment of conviction for five counts of sodomy in the first degree (Counts 1–5), ORS 163.095, and two counts of sexual abuse in the first degree (Counts 6 and 7), ORS 163.427. Defendant was charged in a single, multiple-count indictment in 2011, after allegations came to light that he had repeatedly sodomized and sexually abused his daughter, W, for years when she was a minor. Those allegations were the basis for Counts 1 through 6. While investigating those allegations, police learned that a second relative, C, had previously accused defendant of sexually abusing her on one occasion in 1999, when she was a minor. That allegation was the basis for Count 7.

Defendant raises seven assignments of error. In three of those, he argues that the trial court should have granted his pretrial motions to, one, sever the charges related to each victim and, two, exclude the entirety of a tape-recorded phone conversation between W and defendant or, alternatively, specific statements made in that recording. In the remaining four assignments of error, defendant challenges various rulings by the court during trial regarding the prosecutor's attempts to elicit or exploit evidence that defendant was a methamphetamine addict at the time of the conduct charged in the indictment. In two of those assignments, defendant contends that the trial court erroneously denied his motion for a mistrial. For the reasons explained below, we agree with defendant that the trial court should have granted a mistrial, and we reverse and remand for a new trial. We also address defendant's challenge to the court's denial of his motion to sever, because that ruling will likely affect any retrial on remand. However, we do not reach defendant's other assignments of error to the court's evidentiary rulings before and during trial, because the evidentiary issues may be litigated differently on remand.

I. MOTION TO SEVER

We begin by relating the allegations of W and of C, which are relevant to defendant's pretrial motion to sever the count alleging that defendant sexually abused C. W, the adult daughter of defendant, testified at trial that, beginning when she was five years old, defendant repeatedly and regularly sexually abused and sodomized her. When W was 10 years old, her parents separated, and defendant moved out of the house, although he continued to visit the home frequently and to sexually abuse W. The abuse ceased one night, when W was around 12 years old, after she told defendant to stop. W then avoided contact with defendant, speaking to him only once or twice over the next few years and then having no contact with him for the following six to seven years. During that time, W never told anybody about the abuse.

In 2010, several of W's family members began encouraging her to reconnect with defendant. W agreed to attend defendant's birthday party and later saw defendant at another family function that year. Then, in 2011, when W was 22 years old, she revealed to her mother that defendant had sexually abused her when she was a child.

Upon learning of the alleged abuse, W's mother called the Marion County Sheriff's Office, which began investigating W's allegations. The investigation included a “pretext” phone call from W to defendant, which a deputy sheriff recorded.¹ During the call, W confronted defendant, asking him why he had touched her and whether he remembered doing so. She referred to “everything that happened, from the time I can remember until I was about 12.” She also used the word “molested” in place of “touched” once during the call. For his part, defendant repeatedly admitted to past drug use and being a bad father generally, but many of his answers were non-responsive to the questions, and defendant at various points remained silent in response to W's questions. During the 42–minute call, defendant neither denied nor explicitly admitted that he had sexually abused W.

The day after the pretext call, a sheriff's detective, Wilkinson, contacted and interviewed defendant. When confronted with W's allegations, defendant denied ever having sexually abused her.

Approximately two weeks later, the police contacted and interviewed C. C is the daughter of W's maternal grandmother but is close in age to W. In the course of investigating W's allegations, the police had learned that C had accused defendant in 1999 of sexually abusing her one night that year. After defendant separated from W's mother, and while the alleged sexual abuse of W was still ongoing, defendant stayed for a period of time with C and her mother when C was about nine years old. According to C's account of the incident, C's mother sent C to bed early, and defendant accompanied C up to her bedroom. C asked defendant to stay with her until she fell asleep. C woke up the next morning in her bed next to defendant. Defendant then began touching her buttocks and vagina. After a few seconds, C kneed defendant and told him to stop. C then ran downstairs and told her mother, who immediately kicked defendant out of the house. Neither C nor her mother reported the incident to police. After that, C never saw defendant again, save for one night, briefly, several years after the alleged abuse.

Defendant also denied sexually abusing C. According to defendant's testimony at trial, on the morning that C accused him of sexually abusing her, she had actually rolled over onto his arm, and he awoke with his arm pinned underneath her torso. He pulled his arm away and went back to sleep, only to be “awakened a little bit later when [C's mother] is telling me to get the hell out.”

As noted above, defendant was ultimately charged with five counts of sodomy in the first degree, ORS 163.095, and one count of sexual abuse in the first degree, ORS 163.427, based on W's allegations, as well as an additional count of sexual abuse in the first degree based on C's allegations. Just before trial, defendant filed a motion to sever the lone count stemming from C's allegations.² In defendant's seventh assignment of error, he contends that the trial court erred in denying his motion to sever. Because the issue affects any retrial of defendant, we address the assignment.

Defendant argued to the trial court that severance was warranted under ORS 132.560(3), which provides that, “[i]f it appears, upon motion, that the state or defendant is substantially prejudiced by a joinder of offenses * * *, the court may order an election or separate trials of counts,” because he would be substantially prejudiced by joinder. Defendant first argued that he would be prejudiced because evidence regarding the separate victims would not be admissible in separate trials under OEC 404(3)³ and OEC 403.⁴ Further, defendant asserted, because the two victims were close in age at the time of the charged offenses and because of the prejudicial nature of child sexual abuse evidence, a jury hearing allegations from two victims would be highly likely to conclude that defendant had a propensity to commit sex crimes against minor females.

Defendant also argued that the evidence regarding the victims was not “sufficiently simple and distinct to mitigate” the potential dangers that would result from erroneous joinder. State v. Norkeveck, 214 Or.App. 553, 560, 168 P.3d 265 (2007), rev. den., 344 Or. 558, 187 P.3d 219 (2008). Defendant argued, lastly, that a joint trial would severely curtail his “fifth amendment privilege” by forcing him to choose between testifying with regard to both victims or neither of them. Defendant stated that he wished to preserve his right to testify regarding C's allegations while preserving his right to remain silent regarding W's allegations. In defendant's view, an instruction directing the jury to ignore his silence as to one victim while he addressed the allegations of the other would put him in “the awkward position” of effectively having to comment on his own silence.

The state responded that the evidence as to both of the victims was sufficiently interrelated so as to require each victim's testimony at a trial for defendant's alleged conduct against the other victim. According to the state, the evidence would show that, while defendant was molesting W, he was grooming his second victim, C. The two victims later spoke with each other about the abuse, and W was eventually the one who first informed the police about defendant's alleged abuse of C. The state also contended that any harm to defendant resulting from defendant's having to elect whether to testify in a joined trial did not constitute substantial prejudice under ORS 132.560(3). The state pointed out that, if defendant could “craft his scope” of testimony so that he was “talking about one victim and not the other,” then the state would be “limited to that” on cross-examination, which would be “curative of any * * * specialized prejudice that the Court may find.”

The trial court denied defendant's motion to sever. The court agreed with the state that defendant could control the scope of his testimony, thereby limiting the scope of the state's questioning of defendant. On that note, the court instructed the prosecutor that, if defendant testified in direct examination as to one victim in a way that the state concluded enabled it to then cross-examine defendant regarding the other victim, the prosecutor was to consult ...