State v. Deloretto, 05C45532; A130694.

• Court: Court of Appeals of Oregon
• Citation: 189 P.3d 1243,221 Or. App. 309
• Docket Number: 05C45532; A130694.
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Louis John DELORETTO, Defendant-Appellant.
• Decision Date: 23 July 2008

189 P.3d 1243 221 Or. App. 309 STATE of Oregon, Plaintiff-Respondent,
v.
Louis John DELORETTO, Defendant-Appellant. 05C45532; A130694. Court of Appeals of Oregon. Argued and Submitted on February 20, 2008. Decided July 23, 2008.

[189 P.3d 1245]

Lawrence Matasar, Portland, argued the cause and filed the brief for appellant.

Kaye E. McDonald, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.

SCHUMAN, J.

221 Or. App. 311

A jury found that defendant, a high school teacher, rubbed his arm against the breasts of one of his students without her consent and for the purpose of gratifying his sexual desire. The trial court entered a judgment of conviction for sexual abuse in the third degree. ORS 163.415.¹ On appeal, defendant argues that the court committed several reversible errors. First, he argues that the court erred in denying his motion for a new trial. The motion was based on the state's failure, until after the verdict, to provide him with information that he maintains would have shown that the complaining student had once made a false allegation of rape. With that information, he argues, he could have impeached her credibility and altered the outcome of the case. Second, he argues that the court erred in failing to provide him, until after the trial, with hospital records from the night of the alleged rape. He had subpoenaed those records to the court for in camera review, and he maintains that they would have confirmed that the allegation of rape was false. Third, he argues that the trial court erred by allowing evidence of uncharged misconduct. And fourth, he argues that the court erred by denying his motion for a mistrial after the prosecutor concluded his closing argument by asking the jury to vindicate the victim. We conclude that the court erred in admitting some of the evidence of defendant's uncharged conduct and that admitting it was prejudicial. We therefore reverse and remand.

Factual details will emerge in our discussion of defendant's assignments of error. In brief: The victim, K, was a student and teacher's aide in defendant's high school history class. In April 2005, she reported to a school guidance

221 Or. App. 312

counselor that, when she went to defendant's class after missing a day of school, he "put his left arm across my breasts and grabbed my right shoulder and jokingly said, `Never miss my class again.'" K reported that defendant had previously

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acted toward her in ways that made her feel uncomfortable. On the same day as the reported incident, he had winked at her in a flirtatious manner. Once, while K was walking past defendant's desk to go to the computer and she accidentally bumped his chair, he turned around and placed his hand on her lower back and kept it there as she walked past him. On a different occasion, he had shuffled through papers that she was holding in her lap, and while doing so, he placed his arms on her upper thigh. The breast-touching incident, however, was the first that led to a complaint. As a result of that complaint, defendant was charged with sexual abuse in the third degree.

Defendant's primary theory at trial was that the incident did not occur. On cross-examination of K, he attempted to show that another student, D, had teased K by saying that defendant flirted with her, and that the teasing might have led her to make a false accusation. Defendant also introduced evidence that the police report of the incident, based on K's statements, specified that it had occurred in the hallway rather than the classroom. Both the defense and the prosecution called students from defendant's class to testify as to whether they had seen defendant touch K. Several students testified that they never saw such conduct; others testified that they did. The jury, as noted, ultimately returned a verdict finding defendant guilty of sexual abuse in the third degree.

I. ADMISSION OF EVIDENCE OF UNCHARGED CONDUCT

We begin with defendant's third assignment of error, because it is dispositive. Before trial, the state filed a motion to admit evidence that defendant had exhibited inappropriate behavior toward female students in the past. Defendant argued that the incidents were uncharged misconduct and were not relevant to any fact in issue; his defense in this case was not that the inappropriate behavior was accidental or that he had touched K without any sexual intent, but that no touching occurred. See State v. Baughman, 164 Or.App. 715,

221 Or. App. 313

995 P.2d 551 (2000), rev. dismissed, 333 Or. 596, 44 P.3d 590 (2002) (uncharged conduct evidence showing intent inadmissible where defendant does not contest intent but denies that the allegedly intentional act occurred). The trial court agreed with defendant, but only provisionally. It ruled that evidence of the alleged misconduct involving other victims was inadmissible, "provided that the court may reconsider this ruling should the defense pursue a course of conduct during trial that leads the court to conclude that such evidence has become relevant and admissible."

Throughout the trial, defendant attempted to create doubt about whether he had touched the victim's breasts. During his closing argument, however, defense counsel implied that even if the touching had occurred, it was an "innocent event[ ]" and that the victim may have interpreted it as sexual because teenagers think about "sexual kind of things a lot." In response, the court allowed the state to reopen its case and present testimony from three female former students who alleged that defendant had inappropriately touched them as well.

In his third assignment of error, defendant argues that the trial court erred by allowing the three students to testify about the earlier uncharged incidents. According to defendant, admitting the evidence ran afoul of the prohibition in OEC 404(3):

"Evidence of other crimes, wrongs or acts is not admissible as evidence to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

The state responds that the evidence was admissible to prove that, contrary to the assertion in his closing argument, defendant acted with the requisite intention, that is, when he touched K's breasts, he did so "for the purpose of arousing or gratifying the sexual desire of either party." ORS 163.305(6).

In State v. Johns, 301 Or. 535, 548, 725 P.2d 312 (1986), the court explained that, under OEC 404(3), otherwise relevant evidence of uncharged misconduct is admissible

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unless the evidence "is offered solely to prove (1) the character of a person, and (2) that the person acted in conformity

221 Or. App. 314

therewith." (Emphasis added.) Thus, if the disputed evidence is relevant to the question of intent—if, in other words, a rational factfinder could conclude that, because defendant acted as he did in the earlier incidents, he likely acted with sexual intent when he touched K's breasts—then evidence of those incidents was admissible. Johns, 301 Or. at 551, 725 P.2d 312. The court in Johns established a multipart inquiry to determine whether uncharged misconduct is relevant to intent in a charged crime:

"(1) Does the present charged act require proof of intent?

"(2) Did the prior act require intent?

"(3) Was the victim in the prior act the same victim or in the same class as the victim in the present case?

"(4) Was the type of prior act the same or similar to the acts involved in the charged crime?

"(5) Were the physical elements of the prior act and the present act similar?

"(6) If these criteria are met, is the probative value of the prior act evidence substantially outweighed by the danger of unfair prejudice, confusion of issues or misleading the jury, undue delay or presentation of cumulative evidence?"

Id. at 555-56, 725 P.2d 312. The inquiry is cumulative: if the answer to any of the first five inquiries is negative, then the evidence is not relevant and the court need not proceed to the balancing in the sixth inquiry, presumably because irrelevant evidence is of no probative value. State v. Pratt, 309 Or. 205, 211, 785 P.2d 350 (1990). The state has the burden of establishing relevance, id. at 210, 785 P.2d 350, and we review the trial court's determination of the first five inquiries for legal error. State v. Mills, 153 Or.App. 611, 614-15, 958 P.2d 896 (1998), rev. den., 328 Or. 275, 977 P.2d 1173 (1999).

The disputed testimony described several incidents. One of the witnesses, L, testified that defendant was her basketball coach when she was in high school in the 1980s. She described an incident when defendant hugged her, picked her up, and spun her around while singing, "I've been waiting for a girl like you." On different occasions, while she was stretching in the gym, he whispered, "I like the way you smell this

221 Or. App. 315

time of the month," and, while she was doing hamstring curls, he told her, "I like the way your hips move when you do that." Another student, H, testified that defendant had placed his hands on her shoulders and rubbed them while she was in his class. She explained that the incident occurred when she was upset due to an unrelated incident, and he was trying to comfort her. The last student to testify, M, said that defendant had placed his hand on her lower back to escort her out of the classroom and into the hallway.

We conclude that the three incidents involving physical contact are irrelevant under the second Johns inquiry, "Did the prior act require intent?" 301 Or. at 555, 725 P.2d 312. In the context of this case, that inquiry means that, in order to be relevant to...