State v. Garcia-Rocio

• Decision Date: 14 June 2017
• Docket Number: A154601
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Baltazar GARCIA-ROCIO, Defendant-Appellant.
• Court: Oregon Court of Appeals

286 Or.App. 136

399 P.3d 1009

STATE of Oregon, Plaintiff-Respondent,

v.Baltazar GARCIA-ROCIO, Defendant-Appellant.

A154601

Court of Appeals of Oregon.

Submitted September 30, 2015.

June 14, 2017

Peter Gartlan, Chief Defender, and Mary M. Reese, Deputy Public Defender, Office of

Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Michael S. Shin, Assistant Attorney General, filed the brief for respondent.

Before Armstrong, Presiding Judge, and Hadlock, Chief Judge, and Egan, Judge.

EGAN, J.

Defendant appeals a judgment of conviction for one count of first-degree rape, ORS 163.375 ; two counts of first-degree sexual abuse, ORS 163.427 ; and one count of first-degree sodomy, ORS 163.405. The charges stemmed from defendant's daughter's allegation that defendant raped and sexually abused her during a brief period between 1995 and 1996. Defendant assigns error to the trial court's admission of three portions of a video-recorded interview of defendant by detectives in which defendant was questioned about sexual abuse allegations made by the victim against defendant's brother. Defendant argues that the trial court erred because it admitted the three interview portions without making a record demonstrating that it had engaged in the conscious process of OEC 403¹ balancing, as defendant had requested and as required by State v. Mayfield , 302 Or. 631, 733 P.2d 438 (1987). Under the totality of the circumstances, we conclude that the trial court failed to demonstrate that it admitted the interview portions after consciously engaging in the OEC 403 balancing process required by Mayfield . Consequently, the court erred as a matter of law. We also conclude that the error was not harmless. Accordingly, we reverse and remand.

We "examine whether the trial court properly applied the balancing test that OEC 403 prescribes for errors of law, [and] we review the trial court's ultimate determination as to whether evidence is unfairly prejudicial under OEC 403 for abuse of discretion." State v. Shaw , 338 Or. 586, 614-15, 113 P.3d 898 (2005).

The victim, defendant's daughter, who was 26 years old at the time of trial, accused defendant of sexually abusing her and raping her three times when she was approximately eight years old. At that time, the victim lived in a two-bedroom apartment with her parents, her five siblings, and her uncle. The victim testified that the abuse took place in the bedroom that the victim shared with her whole family, excluding her uncle, and began after she saw defendant touch the vaginal area of her older sister, A. All of the abuse took place at night or early in the morning when the bedroom that the family shared was dark and everyone was sleeping, except for the victim's mother, who was sometimes in the kitchen.

According to the victim, defendant stopped abusing her after she began menstruating. Shortly thereafter, her uncle sexually abused and raped her when she and her sisters had begun sleeping together in a smaller room of the apartment, separate from the rest of the family. Her uncle admitted to police that he had sexually abused the victim and some of her siblings.

The victim also testified that, on two occasions, she heard A tell their mother that defendant had sexually abused A. She said that their mother responded that it was not defendant but their uncle who had done it. A, who is one year older than the victim, testified that it was their uncle who would enter the family's shared bedroom while they slept. She testified that she told her mother at the time that their uncle would come into the room. But it was not until years later that she told her mother that their uncle sexually abused her and that she saw him touch her siblings, including the victim, when he entered the bedroom. A testified that defendant never sexually abused her and that she never saw him sexually abuse any of her siblings. The victim's oldest sister, J, who is 10 years older than the victim, also testified that she saw their uncle come into the family's shared bedroom while the family slept. The victim's mother testified that she did not remember or know anything about her children being sexually abused.

After the police had begun investigating the victim's allegations, they arranged for the victim to make a pretext call to defendant, which was recorded.² During that call, defendant did not admit to sexually touching or raping the victim, and he repeatedly denied her accusations of sexual abuse and rape, calling them lies.

Soon after the pretext call, Detective Anderson interviewed defendant at a police station. The interview was video recorded and conducted with the assistance of an interpreter. Portions of the interview were played at trial, three of which are the subjects of defendant's appeal. Before Anderson questioned defendant about the victim's allegations against him, he questioned defendant about the victim's allegations that her uncle, defendant's brother, had also sexually abused her as a child.

Anderson informed defendant that he had arrested defendant's brother and that his brother had admitted to sexually abusing the victim. Anderson told defendant that he was going to ask defendant about the family's sleeping arrangements at the time of the abuse. During defendant's response to that prompt, in which he said that he remembered where people slept, the interpreter consulted with defendant about a word that defendant had said that the interpreter did not understand, and then she said, "It's something along the—like you guys are accusing him of stuff without having any proof." Defendant said that he did not know anything about the alleged sexual abuse by his brother because he worked seven days a week. Anderson told defendant that the victim and his brother had both said that his brother sexually abused the victim and asked defendant if that was "enough." Defendant responded, "I didn't know anything about that until now. * * * I can't fault somebody without having any proof." He then added, "Well, I say if she says and he admitted it, what can you do?" Later, Anderson said, "[Your brother] did what he told me he did. You don't believe it?" Defendant responded, "No."

Anderson then told defendant that the victim accused him of sexually abusing and raping her and said that defendant's laughter in response to that statement was "kind of an unusual reaction." Defendant asked if the detective wanted him to get mad. The detective replied, "Your daughter said you raped her." And defendant responded, "Well, no."

Before trial, defendant sought to exclude three portions of the recorded police interview in which Anderson and defendant discussed defendant's brother. At the pretrial hearing discussing the admissibility of the disputed portions of the interview, defendant argued that the portions should be excluded because they were not relevant under OEC 401 and because their probative value was outweighed by their unfair prejudicial effect. The three interview portions under dispute were played separately for the court, and the parties argued the admissibility of each interview portion after it was played. Defendant argued as to the first interview portion:

"[T]his portion of the tape relates to [defendant] being asked questions about whether or not he essentially believed that there's sufficient evidence against [the] uncle to convict him. I don't think that's relevant, even if the Court finds that that's relevant, what [defendant's] opinions are on [defendant's brother's] guilt—we believe that's absolutely more prejudicial than probative for that to be played in front of the jury."

Defendant also argued:

"If the Court does find that it's relevant, we're asking that under [ OEC 403 ], that the Court do the balancing test and rule that this is obviously more prejudicial than probative.

"For the jury to hear this type of statement from my client regarding whether or not he believes that law enforcement has sufficient proof against his brother with regard to sex abuse against children in the household, we think that's far more prejudicial than probative, and allows the jury to draw inferences that he's just a plain bad person and didn't protect the children, and allowed abuse to occur in his home.

And whether or not that's probative of his guilt or innocence in this case—it just is not for the jury to hear."

Defendant had also objected to the admission of the first interview portion on Miranda grounds. The trial court addressed only defendant's Miranda argument when it explained its decision to admit the first portion of the interview. The trial court did not mention the probative value of the interview portions or their possible unfair prejudicial effects.

After the second interview portion was played for the court, defendant objected on two of the same grounds as the first portion: "that it's not relevant as to [defendant's] guilt * * *, and it's also—if the Court finds that it's relevant, our position is it's more prejudicial than probative for the jury to hear that information." The trial court responded simply, "I'm going to allow those statements." And, after the trial court viewed the third disputed portion of the interview, defendant briefly reiterated his previous objections against the evidence, arguing, "We believe that it's not relevant to [defendant's] guilt or innocence, and we believe that it's more prejudicial than probative." The trial court admitted the third portion of the interview, stating only, "All right, I'm going to allow those statements in." All three portions of the interview were played for the jury.

During the trial, after the state rested, the state requested the court to dismiss one count of rape and two counts of sexual abuse, which the court did. The state proceeded only on the four counts on which defendant was ultimately convicted.

On appeal, defendant argues that the trial court erred in admitting the interview portions because...