State v. Garcia-Rocio

Decision Date16 June 2021
Docket NumberA154601
CourtOregon Court of Appeals
Parties STATE of Oregon, Plaintiff-Respondent, v. Baltazar GARCIA-ROCIO, Defendant-Appellant.

Peter Gartlan, Chief Defender, and Mary M. Reese, Deputy Public Defender, Office of Public Defense Services, filed the opening brief for appellant. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Mary M. Reese, Deputy Public Defender, Office of Public Defense Services, filed the supplemental brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Michael S. Shin, Assistant Attorney General, filed the opening brief for respondent. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rolf C. Moan, filed the supplemental brief for respondent.

Before Tookey, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.


In State v. Garcia-Rocio , 286 Or. App. 136, 399 P.3d 1009 (2017), we concluded that the trial court failed to demonstrate that it had engaged in the OEC 403 balancing process as explained by State v. Mayfield , 302 Or. 631, 733 P.2d 438 (1987).1 We therefore reversed and remanded defendant's convictions for one count of first-degree rape, ORS 163.375 (Count 4); two counts of first-degree sexual abuse, ORS 163.427 (Counts 5 and 6); and one count of first-degree sodomy, ORS 163.405 (Count 7).2 The Supreme Court has vacated our decision, instructing us to reconsider it in light of State v. Anderson , 363 Or. 392, 423 P.3d 43 (2018). State v. Garcia-Rocio , 363 Or. 677, 427 P.3d 1087 (2018). Defendant has filed supplemental briefing on remand, assigning error to the trial court's nonunanimous jury instruction and acceptance of nonunanimous verdicts on two counts. Ramos v. Louisiana , 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020). We reverse and remand on Counts 6 and 7 on the Ramos claims of error, and we remand on Counts 4 and 5 for the trial court to conduct OEC 403 balancing on the record, consistent with State v. Baughman , 361 Or. 386, 393 P.3d 1132 (2017).

In his first supplemental assignment of error, defendant argues that the trial court plainly erred in giving a nonunanimous jury instruction for all counts, and that the error constitutes structural error, which requires reversal of all counts. We reject that structural error argument for the reasons set forth in State v. Flores Ramos , 367 Or. 292, 319, 334, 478 P.3d 515 (2020). In his second supplemental assignment of error, defendant argues that the trial court plainly erred by accepting nonunanimous verdicts for one count of sodomy in the first degree (Count 6), and one count of sexual abuse in the first degree (Count 7). We agree, and for the reasons expressed in State v. Ulery , 366 Or. 500, 503-04, 464 P.3d 1123 (2020), we exercise our discretion to reverse and remand defendant's convictions on Counts 6 and 7.

Having reversed and remanded Counts 6 and 7, we now address defendant's OEC 403 claims of error in relation to the counts that remain, Counts 4 and 5. "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). In this case, those facts are either procedural or undisputed for purposes of this appeal.

Defendant is the father of R, who, at the time of trial, was 26 years old. R alleged that defendant sexually abused her and raped her three times when she was between the ages of eight and 11 years old. According to R, defendant stopped abusing her after she began menstruating. Shortly thereafter, Crescensio—R's uncle and defendant's brother—began to sexually abuse and rape her. Crescensio admitted to police that he had sexually abused R and some of her siblings. Because of R's allegations, the police began investigating the matter and arranged for a video-recorded interview of defendant at a police station. Several portions of that video are the subject of this appeal.

During the interview, Detective Anderson, with the assistance of an interpreter, first asked defendant questions about Crescensio's case and defendant's "side of what's going on." Defendant answered questions about where his children slept before saying "you guys are accusing [Crescensio] of stuff without having any proof." Anderson replied, "It sounds like you're concerned about your brother. You know, obviously you're at the sheriff's office. Before we go any further, I want to make sure you're aware of your rights, that spring out while we're asking questions about things that your brother did with your case." Anderson read defendant his Miranda rights. Defendant's interview continued, and defendant and Anderson continued to discuss Crescensio's case. Eventually, the officer began questioning defendant about R's allegations that defendant had also abused and raped her. Subsequently, defendant was indicted for multiple sex crimes.

Before trial, the state filed a memorandum in which it noted that defendant objected to four portions of the recorded police interview on relevance grounds. The court held a hearing on the admissibility of those portions of the video evidence. At the hearing, regarding the first portion of the video, in which defendant had not been Mirandized , defendant argued that that portion should be excluded because Miranda rights were required. Alternatively, defendant argued that the first portion of the video was irrelevant, or, even assuming that it was relevant, that its unfair prejudicial effect substantially outweighed its probative value. As to its potential prejudicial effect, defendant argued:

"[T]he jury could infer if [defendant] doesn't believe [Crescensio's] guilty or * * * if he believes that the children are lying, that somehow makes him a bad person, makes him a bad dad, makes him a person that wouldn't protect the children from someone that was trying to abuse them, and that that portion isn't relevant for the State proving whether or not, on the occasions alleged in the indictment, [defendant] was the actor for the rape, sex abuse, and sodomy."

The state argued that the first portion of the video was relevant because,

"[a]t the time of this interview, the defendant was aware of the victim's allegations that he sexually abused her. The defendant's claim that there is no proof of Crescensio's sexual abuse reflects a desire to diminish [R's] credibility and avoid giving such allegations of sexual abuse any legitimacy.
"The defendant's responses are also probative in that they reflect the defendant's state of mind as to the issue of ‘lack of evidence’ in child abuse investigations. The issue of ‘lack of evidence’ reappears later in the defendant's interview. The initial portion of the interview places the subsequent conversations in a clearer context."

The court admitted the first portion of the interview without any reference to relevancy or weighing the unfair prejudicial effect of that evidence against its probative value. Rather, the court expressly ruled only on the Miranda issue, stating:

"* * * I'm going to allow those statements, he—you know, he was in custody, but I don't think the questioning—I don't think you can attribute the questioning to the police that they were expecting some type of incriminating statement from him, so those are going to be allowed."3

As to the second and third portions of the video, defendant argued that those portions of the evidence were irrelevant, and alternatively, that "it's more prejudicial than probative for the jury to hear that information." The state responded generally that the evidence it sought to admit was relevant to R's credibility, to defendant's state of mind, and to put other evidence in context. The state never specifically addressed the prejudicial impact of the evidence against defendant, or how it might be balanced against the probative value.4 In regard to the second and third portions of the video, the court ruled, "I'm going to allow those statements," without any further discussion.

Finally, regarding the fourth portion of the video, defendant argued that that evidence did not have anything to do with his guilt or innocence, and that he did not believe that it was "relevant to whether he acted on those dates and sexually abused [R]." Defendant asserted that his argument that the evidence was irrelevant was "a little stronger" as to the fourth portion of the video. In addition to his relevance argument, defendant, again, argued that the evidence was also "more prejudicial than probative." The court ruled that the fourth portion of the video was inadmissible because that evidence "brings in a different topic." Thus, the court admitted the first three portions of the interview and excluded the fourth. Defendant's trial began shortly thereafter. The jury returned guilty verdicts on Counts 4 through 7.

On appeal, relying on Mayfield , defendant argues that the trial court erred in admitting the three portions of the video interview because it "failed to balance the probative value of that evidence against its prejudicial impact."

Defendant also reprises his arguments that the court should have excluded the evidence as irrelevant. We reject defendant's relevancy arguments without discussion. However, as we will explain, the trial court erred in admitting all three portions of the disputed evidence because "the record here lacks any indication that the court weighed the probative value of the contested evidence against its prejudicial effect." State v. Garcia , 294 Or. App. 328, 337, 431 P.3d 426 (2018).

The Supreme Court has noted that Mayfield "provides valuable guidance for trial and appellate courts on the meaning and application of OEC 403." Anderson , 363 Or. at 404, 423 P.3d 43. In Mayfield , the court explained that there are generally four steps in ruling on an OEC 403 objection.

"In making [a] decision under OEC 403, the judge should

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