State v. Groves

• Decision Date: 23 July 2008
• Docket Number: 040431757.,A128167.
• Citation: 221 Or. App. 371,190 P.3d 390
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Robert GROVES, aka Robert W. Groves, aka Robert Wayne Groves, Defendant-Appellant.
• Court: Oregon Court of Appeals

190 P.3d 390

221 Or. App. 371

STATE of Oregon, Plaintiff-Respondent, v. Robert GROVES, aka Robert W. Groves, aka Robert Wayne Groves, Defendant-Appellant.

040431757.

A128167.

Court of Appeals of Oregon.

Submitted January 25, 2008.

Decided July 23, 2008.

Ingrid A. MacFarlane, Salem, filed the briefs for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Christina M. Hutchins, Senior Assistant Attorney General, filed the briefs for respondent.

Before LANDAU, Presiding Judge, and ORTEGA, Judge, and ROSENBLUM, Judge.

ROSENBLUM, J.

Defendant was charged with breaking into a woman's apartment and sexually abusing and attempting to rape her and then, approximately 20 minutes later, breaking into another woman's apartment with the intent to rape her. A jury found defendant guilty of first-degree burglary (Count 3), ORS 164.225, first-degree sexual abuse (Count 1), ORS 163.427, and first-degree attempted rape (Count 2), ORS 163.375, based on the first incident and first-degree burglary (Count 5) and first-degree attempted rape (Count 4) based on the second incident. Defendant challenges the sufficiency of the evidence on Counts 4 and 5. He also contends that the trial court erred in ruling, under OEC 404(3), that evidence of the first burglary and attempted rape was admissible to prove defendant's identity, intent, and opportunity with respect to Counts 4 and 5. Defendant also challenges the imposition of consecutive sentences. We affirm.

We take the following facts from the record, viewing them in the light most favorable to the state. State v. Cervantes, 319 Or. 121, 125, 873 P.2d 316 (1994). In the early morning hours of April 17, 2004, Divine was sleeping in her third-story apartment in northeast Portland, where she lived alone. At approximately 3:30 a.m., she woke up to find defendant, who was a stranger to her, crawling onto her bed. Defendant pinned her to the bed with his body, but Divine struggled and was able to reach her telephone and call 9-1-1. Defendant knocked the phone from her hand. He reached under her shirt and grabbed her breast and then began pulling her pants down. Divine was able break free enough to reach the phone, and she called 9-1-1 again. Defendant got up and quickly left the bedroom and then went out through the balcony door and down the fire escape. It appeared that he had entered the apartment the same way that he left it.

Moments later, the 9-1-1 operator told Divine that the police were at her apartment building and that she needed to open the door for them. Divine let the two officers in and described defendant to them. The officers told her to wait in her apartment. A few minutes later, they returned and said that other officers had found someone matching the description she had given. They took her to a nearby convenience store where other officers were holding defendant. Divine readily identified him as her attacker. Approximately 20 minutes passed from the time the police were dispatched to Divine's apartment until defendant was stopped at the convenience store.

Meanwhile, after defendant had left Divine's apartment, but before he was stopped by the police, Thompson, who lived alone in a second-story apartment about eight blocks from Divine's apartment, awoke to the sound of the lock on her front door rattling. She thought that someone was trying to get into her apartment and got up to investigate. She then realized that the sound was coming from inside the apartment. Thompson screamed and kept moving toward the front door in order to get out. At the doorway to her bedroom, she saw a man about 10 feet from her. Thompson, who normally wears glasses or contact lenses but was not wearing them at the time, looked at him very briefly before running to the front door, unlocking it, and running out of the apartment. In the dim light, she saw only his profile. After getting out of the apartment, Thompson roused a neighbor, who called 9-1-1. Two neighbors went into her apartment and found that the window to the fire escape was broken and that whoever had been in the apartment was gone.

The police arrived nearly immediately. Thompson described the man she had seen in her apartment. The neighbor directly below Thompson's apartment reported that she had been awakened by Thompson's screaming and running and that she had then heard the fire escape dropping to the ground. The officers had heard the dispatch calls related to Divine's 9-1-1 call and knew that other officers were holding a suspect. They told Thompson that they wanted to see if she could identify him as the intruder in her apartment.

The officers took Thompson to the convenience store where Divine had identified defendant. It was just over one block from Thompson's apartment. They pointed out defendant to Thompson. She said that he was "consistent with" the man in her apartment, but she could not say positively that it was him.

Defendant was arrested and charged in connection with both incidents. Defendant told the police that he lived in the same neighborhood. He said that he been at a nightclub earlier and that a friend had dropped him off at about 3:30 a.m. in a grocery store parking lot about 10 blocks from his home. The grocery store is two blocks from Divine's apartment. Defendant said that he was walking home after being dropped off when the police stopped him at the convenience store.

The police searched Thompson's apartment for evidence that defendant was the intruder. They found no fingerprint or DNA evidence at the apartment. However, they discovered a substance on defendant's pants that, according to an Oregon State Police forensic scientist, matched the paint on the fire escape at her apartment. They also found a small amount of DNA under one of defendant's fingernails. Although the sample taken was too small to yield an exact match, the DNA was consistent with Divine's.

Before trial, the state filed a motion to introduce "prior bad act" evidence under OEC 404(3). The state argued that the evidence of the offenses against Divine was admissible to show, among other things, defendant's intent, identity, opportunity, and plan with respect to the offenses against Thompson, and, likewise, that the evidence of the offenses against Thompson were admissible for the same purposes with respect to the offenses against Divine. The state also sought to introduce, for the same purposes with respect to all of the charged offenses, evidence that defendant had raped five women in the United Kingdom and had raped or attempted to rape two women in Georgia. The trial court ruled on the three groups of offenses separately—that is, it ruled on the admissibility of the offenses against Divine and Thompson first, then the offenses in Georgia, and then the offenses in the United Kingdom.

With respect to the offenses in Portland, the court concluded that the evidence of each incident was relevant to prove defendant's intent, identity, opportunity, and plan with respect to the other incident. It went on to conclude that the evidence of each incident satisfied the test for admissibility under OEC 404(3) to prove intent. It then ruled in turn that the evidence of the incidents in Georgia and the United Kingdom were also relevant to prove intent, identity, opportunity, and plan.

The court did not rule that any of the evidence satisfied the test for admissibility to prove identity that was articulated in State v. Pinnell, 311 Or. 98, 109-10, 806 P.2d 110 (1991). In fact, it specifically noted that it did not reach the conclusion that the various offenses were "signature crimes"—a prerequisite to admissibility for proving identity. See id. ("other crime" evidence is relevant to prove identity if the methodology is "attributable to only one criminal, that is, the methodology is distinctive so as to earmark the acts as the handiwork of the accused"); State v. Johns, 301 Or. 535, 551, 725 P.2d 312 (1986) (to prove identity, the prior acts must be a "signature" crime). It added, however, that case law establishes that prior bad act evidence is to be excluded only when it is offered solely for the purpose of establishing propensity and that, because that was not the state's purpose in this case, the evidence was admissible. It stated that, in its view, the evidence was inadmissible for specific purposes only if those purposes were not connected to relevant issues in the trial.¹ Defendant did not object.

The state ultimately did not introduce any evidence of the Georgia and United Kingdom offenses in the guilt phase of defendant's trial. However, in closing argument, the prosecutor told the jury that it could rely on evidence of the offenses against Divine in determining whether defendant had committed the offenses against Thompson:

"It happened so quick. Does that mean he intended to rape her? How do we know that? Well, let me tell you, this is how you know: You know because you know the facts here. You know how that went down.

"Those facts that relate to * * * Divine's circumstance, and you may consider those facts when you consider things like what was he intending to do there? You can consider these facts, not only when you try to tell me what was his intent in the second apartment, but who is he? Who is the man in the second apartment? His identity. You can consider what happened over here when you answer the question who was in [Thompson's] house. You can consider what happened at [Divine's] house when you consider did he operate under the same plan, did he have an opportunity to commit this crime, 20 minutes apart."

Defendant did not object to that argument.

The jury found defendant guilty on all counts.

Following the guilt phase of defendant's trial, the court held a sentencing hearing, after which the jury found defendant to be a dangerous offender. The court imposed 30-year indeterminate sentences on each of the five convictions. The court ordered defendant to serve all of the sentences...