State v. February

• Decision Date: 05 December 2012
• Docket Number: A141519.,080982
• Citation: 292 P.3d 604,253 Or.App. 658
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Roger Robert FEBRUARY, Defendant–Appellant.
• Court: Oregon Court of Appeals

253 Or.App. 658

292 P.3d 604

STATE of Oregon, Plaintiff–Respondent,

v.Roger Robert FEBRUARY, Defendant–Appellant.

080982; A141519.

Court of Appeals of Oregon.

Submitted Sept. 13, 2011.

Decided Dec. 5, 2012.

E. Thomas Dunn, Jr., filed the brief for appellant.

John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Inge D. Wells, Senior Assistant Attorney General, filed the brief for respondent.

Before ORTEGA, Presiding Judge, and BREWER, Judge, and SERCOMBE, Judge.

ORTEGA, P.J.

Following a jury trial, defendant was convicted of two counts of first-degree sexual abuse, ORS 163.427 (Counts 1 and 4); one count of furnishing alcohol to a minor, ORS 471.410(2) (Count 2); one count of attempted sodomy in the second degree, ORS 163.395 and ORS 161.405(2)(c) (Count 3); and one count of harassment, ORS 166.065(4) (Count 7). On appeal, he raises four assignments of error, the first of which is that the trial court erred in refusing to exclude evidence of prior bad acts involving the alleged victim's two sisters, S and A, because the evidence was insufficient to establish a “plan” under OEC 404(3).¹ His other assignments of error relateto the admission of other testimony, the denial of a motion for continuance, and the imposition of a 170–month prison sentence. We conclude that the trial court should have excluded the evidence involving S, though not the evidence involving A, because unlike the latter, the former evidence was insufficient to establish a “plan” under OEC 404(3). Because we reverse and remand on that basis, we need not reach defendant's other assignments of error.

Before trial, defendant filed a pretrial motion in limine to exclude evidence of defendant's alleged prior acts of sexual abuse of S and A. At the hearing on defendant's motion, the state offered the testimony of each sister to show that defendant had a plan to sexually abuse the alleged victim, S.M.

S, the oldest of the three sisters, testified as follows. Defendant was in a relationship with the sisters' mother and moved in with the family when S was 12 years old. S lived with them off and on until she was 20. Although defendant “took care of [them] financially,” S and defendant never got along, and she did not see him as a father figure. S believed that her mother “always took [defendant's] side” and that, if S had a problem with defendant, she could not discuss her concerns with her mother. When S was younger, defendant told her details about “[losing] his virginity.” On another occasion, defendant told S that, “when [she] was skinny, [she] looked hot,” and that “[her] breasts and [her] butt were huge.”

One day, when S was 20 years old, defendant “asked if [she] wanted to get drunk,” and S said that she did. At the time, her mother and her sister, A, were out of town attending a wedding. Defendant poured a “tall glass of tequila,” and S started drinking it. As they were drinking, defendant “kept on filling it before it was empty,” and S became drunk. Although S later “[did not] remember a lot of what happened,” she remembered defendant “sucking on” her breasts. She also remembered that, at one point, she was in “a little room outside our back porch that had a hot tub in it” and either “[defendant] laid [her] down or * * * [she] was already laid down,” and defendant was “licking [her] vagina.” S told defendant, “[n]o,” because “[i]t felt wrong.” That entire week, defendant came into her bedroom at night and “ask[ed] for sex.” On another occasion, S was lying on the couch in the living room when defendant “put his hand on [her] leg,” and she “kicked him off of [her].” Defendant told S that she “moaned in [her] sleep” and that that meant she “moan[ed] during sex.” S did not tell her mother about these events at the time they happened, because she did not think her mother would believe her.

A testified as follows. She was five years old when defendant moved in with the family. She viewed defendant “like [her] stepfather” and believed that they were “[v]ery close.” A's relationship with her mother was “okay,” but she believed that her mother “was always * * * closer to” defendant and that defendant “was favored over her kids.”

A and defendant frequently “wrestle[d] around” and “played fighting.” One day when A was about 13, she stayed home from school because she was sick. Defendant was home as well, but her mother was at work. A was sitting on the couch when defendant “starting wrestling around” with her. A's sweat pants started to fall down, so she told defendant, “ ‘I need to go * * * put on * * * a pair of jeans or something so that my pants aren't falling down if we're going to * * * keep fighting.’ ” A then went around the kitchen island, not realizing that defendant was following behind her. A testified, “He got behind me and shoved me up against the counter with his crotch on my butt so hard I had bruises on my hips.” Defendant was “[p]umping” against her, and A “didn't feel comfortable” and “wanted to get away.” She “was scared” and “was alone in the house with” defendant. Eventually she “broke free” and “went running into [her] bedroom.” Defendant followed her into her bedroom and “pushed [her] on the bed.” She was “face-down” and defendant then “got on top of [her] back” and “started nibbling on the small of [her] back and the top of [her] butt.” A told defendant to “get off” and that “he was hurting” her, and she either “kicked him off of [her]” or “he got scared and left.”

A few days after the incident, while A was alone with defendant in his car, defendant told A that “he would pay [her] $300.00 to do what [they] had done a few nights before but a little bit more.” Initially, A did not tell her mother what had happened with defendant, because “everything [defendant] said goes,” and A “didn't think [her mother] was going to believe [her].” Shortly thereafter, A ran away from home. After her mother kept asking her to come home, A told her what had happened with defendant. Her mother cried and “got rid of” defendant, but about two weeks later defendant moved back in. A did not report the incidents to authorities, and she did not return home because she “could never live with [defendant].” She did not see her mother for “three or four years.”

The alleged victim, S.M., testified as follows. She had lived with defendant since she was two years old and, until the incidents of sexual misconduct, she viewed their relationship as being “like a dad and a daughter.” When she was 13, defendant “start[ed] wrestling” with her. On one occasion, S.M. was in the computer room at home, when defendant pulled her down from the chair and “started sucking and biting on [her] neck.” Defendant held her down, and S.M. “asked him to stop.” S.M. started crying because “it hurt so bad.” Around that time, defendant also asked S.M. for “a blow job” on three or four separate occasions and, on one occasion, asked her to have sex. On another occasion, defendant was balancing on an exercise ball when S.M. kicked the ball and caused him to fall. Defendant pinned S.M. down and “started pulling” on her pants and “ripped” them.

About a month later, S.M. was home in bed because she was feeling ill. Defendant was home at the time, and S.M.'s mother was at work. Defendant asked S.M. “if [she] was feeling alright,” and S.M. responded that she “had a really bad headache.” Defendant gave her a glass of vodka and told her that it “would help with [her] headache.” S.M. drank the vodka and fell asleep. When she woke up, S.M. told defendant that her headache “didn't go away.” Defendant then “brought another glass of vodka” to her, and she went “to sleep after the second one.” When she woke up, defendant gave her a glass of wine and she drank less than “half of it.” She fell asleep again and, when she woke up, defendant came back into her bedroom “to talk to [her], and he touched [her] in inappropriate areas,” first “put[ting] his hands down” and touching her “under” her underwear in her “vaginal area” and second touching her “over” her underwear.

The following day, S.M. was lying in bed when defendant “put his head in-between [her] legs.” S.M. said that she “closed [her] legs” and “pushed him off the bed.” She believed that defendant was trying to engage in oral sex with her. Defendant told her not to tell her mom and, indeed, she did not do so because, “after it happened with two of [her sisters, she] knew that [her mother] wouldn't believe [her].”

Defendant subsequently was charged with (among other things not at issue here) two counts of first-degree sexual abuse, ORS 163.427 (Counts 1 and 4); one count of furnishing alcohol to a minor, ORS 471.410(2) (Count 2); one count of attempted sodomy in the second degree, ORS 163.395; ORS 161.405(2)(c) (Count 3); and one count of harassment, ORS 166.065(4) (Count 7). Counts 1 through 4 concern the alleged incidents that took place when S.M. was ill: Counts 1 and 4 alleged that defendant had sexual contact with S.M. by touching her vagina over and under her clothing; Count 2 alleged that defendant furnished alcohol to S.M., a minor at the time of the incident; and Count 3 alleged that defendant engaged in deviate sexual intercourse with S.M. Count 7 concerned the alleged incident in which defendant engaged in offensive physical contact by kissing and sucking on S.M.'s neck.

In defendant's closing arguments on the motion in limine, he contended that the testimony of S and A was inadmissible character evidence. Defendant argued that the evidence was “precluded by OEC 403” because “its prejudicial value * * * significantly outweighs the probative value.” Defendantalso argued that all three girls had “three different sets of complaints,” and, thus, the evidence was “simply an effort to impeach [defendant] by insinuations and by claims that he has some kind of sexual propensity for young girls of different ages under different circumstances * * *.”

The state responded that the testimony of S and A was...