State v. Garcia

• Jurisdiction: Oregon
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Marcelino GARCIA, Defendant-Appellant.
• Citation: 294 Or.App. 328,431 P.3d 426
• Docket Number: A158837
• Court: Oregon Court of Appeals
• Decision Date: 10 October 2018

294 Or.App. 328

431 P.3d 426

STATE of Oregon, Plaintiff-Respondent,

v.Marcelino GARCIA, Defendant-Appellant.

A158837

Court of Appeals of Oregon.

Argued and submitted January 19, 2017.

October 10, 2018

Lindsey J. Burrows, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

David B. Thompson, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Egan, Chief Judge, and Allen, Judge pro tempore.

ORTEGA, P. J.

Defendant challenges his convictions for multiple sexual offenses, asserting that the trial court erred in admitting evidence of uncharged sexual misconduct and evidence that defendant threatened to kill one of the victims and her mother after the victim’s mother reported the sexual abuse to the police. On appeal, defendant argues that (1) the uncharged sexual misconduct was inadmissible propensity evidence and it was substantially more prejudicial than probative, and (2) the threat evidence had little relevance because the threats were made after the abuse was reported and it was therefore unduly prejudicial because it suggested that defendant was a dangerous person. Defendant also asserts that the trial court failed to balance the probative value of the evidence in both instances against the danger of unfair prejudice to defendant. We write only to address whether the trial court conducted the required OEC 403 balancing¹ and, concluding that it did not, we reverse and remand in the limited manner described in State v. Baughman , 361 Or. 386, 411, 393 P.3d 1132 (2017).

"In reviewing a trial court’s application of OEC 403, we begin by summarizing all of the evidence and procedure related to the trial court’s ruling." State v. Kelley , 293 Or. App. 90, 91, 426 P.3d 226 (2018). The state alleged that defendant committed numerous sexual crimes against his niece, C, and his nephew, A. The charges involving C were for incidents that occurred on a regular basis beginning when C was nine until the day before she turned 18 years old. As for A, the charges were for crimes that occurred beginning when he was 12 years old to the day before he turned 14 years old in 2007, and, on May 25, 2009, when A’s mother, Rivera, reported the sexual abuse. Defendant moved in limine to preclude the state from introducing evidence of (1) sexual acts between defendant and C that occurred after C turned 18 years old until she was 22 years old; and (2) sexual misconduct that occurred for the greater-than-two-year period between A’s fourteenth birthday and the incident that occurred on May 25, 2009. Defendant also moved to exclude evidence that defendant had made violent threats against one of the victims and against Rivera.

In response to defendant’s motion, as to the uncharged sexual misconduct, the state primarily relied on State v. Stephens , 255 Or. App. 37, 296 P.3d 598, rev. den. , 353 Or. 868, 306 P.3d 640 (2013), to argue that the evidence was relevant and admissible under OEC 404(3).² In Stephens , the defendant, an elementary school teacher, was convicted of sexual crimes against the victim when the victim was a student in the defendant’s fourth to sixth grade classes. Id. at 39, 296 P.3d 598. The victim did not report the abuse until he was 17 years old. Id. We affirmed the trial court’s admission of evidence of uncharged incidents of sexual contact with the victim for two reasons. First, in a case "involving charges of sexual abuse of a child where the reporting was significantly delayed, evidence of sexual contact that is not charged is relevant to explain that delay; the existence of a long-term ‘relationship’ provides relevant context." Id. at 45-46, 296 P.3d 598 (citing State v. Zybach , 308 Or. 96, 100, 775 P.2d 318 (1989) ). Second, "when the uncharged conduct and the charged crimes involve the same child, evidence of the uncharged conduct is relevant ‘to demonstrate the sexual predisposition this defendant had for this particular victim, that is, to show the sexual inclination of [the] defendant toward the victim, not that [the defendant] had a character trait or propensity to engage in sexual misconduct generally.’ " Id. (quoting State v. McKay , 309 Or. 305, 308, 787 P.2d 479 (1990) ). In this case, the state argued that Stephens was directly "on point" because evidence of "uncharged acts of sexual abuse against the same victim are relevant to demonstrate the sexual predisposition" defendant had for A and C.

Defendant responded as follows:

"A more concerning issue, Your Honor, is the State’s desire to introduce uncharged prior bad acts in this case.

And it’s particularly concerning because these are prior bad acts which a jury could mistakenly infer is action in conformity, and that is the most dangerous type of evidence that can be introduced to a jury because I think it allows some jurors to no longer have to hold the State to their burden of proof; that is, hold the State to prove the elements of the charges in the indictment but rather to rely on other evidence to support that claim. And I think it’s easy for a jury to make that leap if they are hearing about other uncharged evidence.

"For the record, Your Honor, I’m claiming that any evidence of any prior uncharged sexual conduct is not only not probative to the elements of the charges in this case but is extremely prejudicial ."

The court, after reading out loud portions of Stephens , concluded that the

" Stephens case is right on point with the facts in this case. You had two victims, both with long-term incidents involving—or the defendant had long-term incidents with the same two victims. And then the reporting doesn’t really come until the mother reports that in 2009. And these incidents had been going on for many years, in the case of [C] and then I guess about a year and a half involving [A].

"So I think those incidents, as set out by the two, [C] and [A], would be admissible for noncharacter purposes set out in Stephens , and so I think they would be admissible."

As for the threat evidence, M, who is the brother of A and C, testified at the in limine hearing that, "after [defendant] had left the residence leading up to [the] trial," defendant threatened "everyone from my family," and had threatened that he would "even kill [his] niece if he had to." C also testified that, after defendant "fled the scene" in 2009, he "threatened to kill" her. To admit evidence of the threats, the state relied on Zybach , in which the Supreme Court held that evidence of the defendant’s continuing attempts to persuade the child victim to have sexual intercourse with him after raping her was admissible under OEC 404(3) to explain the nine-month delay between the rape and the victim’s report of the rape in order to stop the defendant’s unwanted "advances." 308 Or. at 98-100, 775 P.2d 318. In the state’s view, because defendant’s sexual offenses against A and C occurred many years before they reported those offenses, under Zybach , the threats were relevant to show why it took a long time to report the charged abuse.

Defendant’s counsel responded as follows:

"I think I kind of want to separate a couple of issues. First of all, there is evidence that the alleged victims in this case are afraid of my client. And I think that that’s—I wouldn’t call that character evidence because I think that’s really—it’s not a reflection of my client but, really, a reflection of their feelings towards my client. So I don’t think that’s really character evidence in and of itself. So I don’t have a problem with that.

"But when we take a further step and say we’re afraid of my client because of threats, that’s where we start getting into character evidence of my client. And that’s where my concerns start to be raised here, because it is clearly showing evidence with very little probative value to the elements of the charges in this case, but is very prejudicial to my client getting a fair trial because it does appear to portray him in a bad light ."

The trial court ruled that the threats were not character evidence. That is, M and C were

"not saying [defendant] is a violent person and he has a reputation to that. They’re saying he threatened [them] if [they] told that he would harm [them] or harm [their] mother. So I don’t think that’s character evidence.

"I think it would be party opponent admissions and certainly could be perceived as evidence that [defendant] had engaged in that conduct. So I certainly think it would be relevant evidence.

"So I think the statements of the threatened harm if they told, and then [A] also said there was one occasion [defendant] threatened physical harm to get [A] to engage in anal sex, that would be relevant as well. I don’t think that’s character evidence, and so those two would be admissible.

"* * * * *

"Certainly, I think the two victims can talk about why they didn’t report. I think all of that is admissible under the Zybach case; however, [M] is not a victim, so I’m not seeing the same analysis under Zybach .

"* * * * *

"I’m not seeing how that would independently be relevant under Zybach . And so I think certainly the threat is admissible, the threat to kill. I think that goes to evidence of guilt."

At trial, both A and C testified that defendant sexually abused them for periods of time that were not charged by the state. Specifically, C testified that the sexual contact did not end until she was 22 years old, and her testimony included a description of an incident during that period that was particularly graphic. A testified that he was sexually abused four or five times per month for a period of time leading up to the charged sexual crime that occurred in 2009. M testified that, "because of what happened" during the month that Rivera reported the abuse to police, defendant stated that he wanted to kill C and her...