State v. Garrett
| Decision Date | 27 November 2019 |
| Docket Number | A161935 |
| Citation | 455 P.3d 979,300 Or.App. 671 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. James Edward GARRETT, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
300 Or.App. 671
455 P.3d 979
STATE of Oregon, Plaintiff-Respondent,
v.
James Edward GARRETT, Defendant-Appellant.
A161935
Court of Appeals of Oregon.
Submitted August 29, 2018.
November 27, 2019
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kristin A. Carveth, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge, and Sercombe, Senior Judge.
TOOKEY, J.
Defendant appeals a judgment of conviction for one count of first-degree sodomy against a victim under 12 years of age, ORS 163.405(1)(b), one count of first-degree sexual abuse against the same victim, a child under 14 years of age, ORS 163.427(1)(a)(A), one count of first-degree encouraging child sexual abuse (ECSA), ORS 163.684, and 10 counts of second-degree ECSA, ORS 163.686. Defendant raises 16 assignments of error. We write only to address defendant’s second assignment of error, in which he argues that the trial court erred when it disallowed his demurrer to the indictment.1 We conclude that the trial court erred when it disallowed defendant’s demurrer and that the disallowance of the demurrer was not harmless. Accordingly, we reverse and remand for entry of judgment allowing defendant’s demurrer.
I. BACKGROUND
The relevant facts are undisputed. J is defendant’s cousin. Defendant was watching J’s son and stepdaughter, K, while J went on a camping trip with his wife. Shortly after leaving to go on their camping trip, J realized that he had forgotten the can opener and decided to return home to pick it up. J ran into the house while his wife waited in the car. When J got inside, he saw that his son was watching television by himself in the
living room and that J’s bedroom door was closed. When J tried to turn the bedroom door handle, it was locked, and J heard K tell her little brother, whom she thought was at the door, to go away. J grabbed a flathead screwdriver and opened the door within 45 seconds. When J opened the door, he saw "[defendant’s] bare buttocks, and he had his jacket and shirt on, but he was naked from the waist down pulling his pants up at the time saying, ‘I messed up. I messed up.’ " J also saw that K was "naked from the waist down with her panties and pants on the floor * * * and a confused look on her face." J said, "Oh, hell, no," went outside, grabbed his phone, and called the police while defendant sat on the front porch.
Officer Molaski arrived shortly thereafter and interviewed defendant about J’s report of sexual abuse. Defendant admitted that he "was caught in a compromising position" when "[h]e and his 9-year-old cousin were in the bedroom naked together," and told Molaski, "I know what I did was wrong. I’m the adult." Defendant was read his Miranda rights and agreed to go down to the police station to discuss what had happened.
Detective Grice arrived at J’s home and interviewed K. K told Grice that defendant had put a video on the computer in the bedroom that showed adults in different sexual "positions," which K described as "inappropriate behavior." When Grice asked K how she ended up in the bedroom, K said that "defendant had told her he wanted to show her a movie about positions, and that he pulled her pants and panties off after leading her into the bedroom and * * * lock[ing] the door behind her." K also told Grice that defendant had pulled his own pants down. When Grice asked K whether defendant had touched her at all, K quickly said, "No," but Grice observed K’s body language change, so Grice stopped the interview and spoke with K’s parents about taking K to the hospital for an examination. Grice left to set up a sexual assault examination at the hospital, and then he went to the police station to interview defendant.
When Grice arrived at the police station, Grice obtained DNA samples from defendant and interviewed defendant about what had happened earlier that day. According to defendant, that morning, K had gone into her parent’s bedroom for about five minutes and then K came back out and told defendant that she wanted to show him something in the bedroom. When defendant entered the room, he said that K had turned on a "sex position" video on YouTube. Defendant stated that K then took off her own clothes, got into a sexual position, and told defendant that "she wanted to see what [his] thing looked like when it was close to that area." Defendant unzipped his pants and exposed his penis. After initially denying that he had any sexual contact with K because J came back home, defendant eventually admitted to Grice that his penis might have touched K while he was moving her into a position, that his penis might have "brushed against" her vagina or anus, and
that he might have pressed his penis up against her rectum for "a little less than half a second." Additionally, after Grice lied to defendant about K stating that she had felt defendant’s penis push against her anus, defendant admitted that he had, in fact, pressed his penis against K’s anus.
Defendant also admitted to Grice that he had had other interactions with K that were potentially sexual in nature. Defendant told Grice that K came into the bathroom while he was urinating and asked defendant questions about his penis. Defendant stated that, on another occasion, he had masturbated in front of K because she was curious about the size of his penis. Defendant also stated that he had accidentally touched K’s genital area while they were playing and, when he apologized, K told defendant to "keep doing that." Ultimately, defendant admitted that he was sexually attracted to K, and that he was "expecting to do a couple months in jail, bare minimum, if not longer," because of "this whole situation."
Grice also asked defendant about the contents of defendant’s computer. Defendant stated that he had never intentionally looked for child pornography on his computer, but that "a couple of child things do sneak in" when he "look[s] up things related to incest."
Based on the information that Grice had gathered during his investigation, Grice obtained,
and then executed, a search warrant at defendant’s home. Grice seized a computer from defendant’s bedroom along with two thumb drives that were connected to the USB ports on the computer. Upon examination of that computer, it was discovered that several internet searches had been done, including searches for "[p]reteen erotic, preteen ass, slut niece, * * * preteen ass erotic," and "fifth grade butt." Additionally, there were multiple images and videos of child pornography that had been downloaded onto one of the thumb drives.
Meanwhile, K was taken to the hospital and was examined by Partridge, a nurse trained to perform examinations in child sexual abuse cases. When Partridge asked K why she had come to the hospital, K told Partridge that it was because of "the bad thing that happened * * * in mom’s room" with defendant. K told Partridge that defendant had
taken off her clothes and his clothes and played a "weird" video, and that defendant had "tried to touch her butt with his hands and didn’t get to because Daddy came to the door." Partridge took swabs of K’s mouth, hands, genital area, and perianal area. K’s physical exam revealed that all of "the tissue was normal" and that "there was no trauma."
K was also interviewed at the Kids First Center about a week later by a child forensic interviewer, Satterwhite. K told Satterwhite that defendant had put on the video about "inappropriate positions" in her parents’ bedroom and that, when K went to see what the noise was, defendant pulled K into the bedroom and put K on the bed. After defendant put K on the bed, defendant took his pants and underwear off and took K’s pants and underwear off. K said that defendant held her down and tried to touch her "bottom" with his hand but, "before he could, my dad got in, and I was so happy to see him." K stated that she never felt defendant touch her bottom and was "99 percent sure he didn’t touch [her]."
Defendant was charged in a 17-count indictment with one count each of first-degree sodomy and first-degree sexual abuse against K, and 15 counts of first-degree ECSA.
Defendant filed a demurrer to the indictment. Defendant argued that the trial court should allow his demurrer because the state had failed to allege a basis for joining the sodomy and sexual abuse charges with the ECSA charges. Defendant contended that he would be prejudiced by the disallowance of the demurrer "because the jury * * * will be hearing evidence regarding one set of crimes and a separate set of crimes, and * * * they will not be able to consider the facts regarding one set when they’re [considering] the other set." In other words, defendant contended that the joinder of the sodomy and sexual abuse...
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