State v. Guritz

• Decision Date: 10 May 1995
• Citation: 894 P.2d 1235,134 Or.App. 262
• Parties: STATE of Oregon, Respondent, v. James Michael GURITZ, Appellant. 91-12-36889; CA A78190.
• Court: Oregon Court of Appeals

Page 1235

894 P.2d 1235

134 Or.App. 262

STATE of Oregon, Respondent, v. James Michael GURITZ, Appellant.

91-12-36889; CA A78190.

Court of Appeals of Oregon.

Argued and Submitted June 29, 1994.

Decided May 10, 1995.

David E. Groom, Deputy Public Defender, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender.

Janet A. Klapstein, Asst. Atty. Gen., argued the cause for respondent. With her on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen.

Before WARREN, P.J., and EDMONDS and LANDAU, JJ.

LANDAU, Judge.

Defendant appeals his sodomy conviction, assigning error to the introduction of testimony about defendant's involvement in a marijuana purchase and to the trial court's denial of his motion to dismiss on the ground that the prosecutor commented on defendant's decision to remain silent during questioning by a detective. We affirm.

We first address defendant's assignment concerning the admission of evidence of the marijuana purchase, viewing the evidence in the light most favorable to the state. State v. Harris, 126 Or.App. 516, 518, 869 P.2d 868, mod. 127 Or.App. 613, 872 P.2d 445, rev. den. 319 Or. 281, 879 P.2d 1284 (1994).

In 1991, the victim, defendant's five year old daughter, complained to her mother that, during a visit with defendant the previous year, defendant had touched her vagina with his tongue and that defendant had told her not to tell anyone about it. The authorities investigated. Ultimately, defendant was interviewed by Detective McDonald. McDonald read defendant's Miranda rights and defendant signed a form acknowledging that he had been informed of those rights. After a brief discussion, defendant said "Well, I'm going to invoke my right to remain silent and my right to an attorney." McDonald ceased questioning defendant.

At trial, defendant denied engaging in sodomy with his daughter. He testified that, during the visit she described, his daughter was feverish and very sweaty, that he had to dry her with a towel and change her clothes, and that she apparently misunderstood his acts.

Defendant argued, among other things, that he was not the sort of father who would commit sodomy on his daughter. He testified that he and his daughter's mother had decided that they would jointly provide daytime care for their child, and that he stayed at home to do so for about four years. Explaining his role, defendant testified:

"Q. And what did you do with [your daughter] when you say that you raised her?

"A. Well, I changed her diapers and took her to the park and like what any father would do, you know, for his daughter. We went to the malls a lot and just everywhere I'd go, she'd go."

Defendant testified that, even after he and the mother separated, he continued to provide day care for their daughter, while the mother worked. Eventually, defendant obtained other employment and, for the next two years, saw his daughter on alternate weekends. He described his relationship with his daughter at that time:

"Q. From July of 1989 until Labor Day of 1991, what type of visitation did you have?

"A. Well, I got [my daughter] about once or twice a month. Usually on weekends, Friday I'd pick her up or Saturday and then take her home after church Sunday.

"Q. What types of things did you do with [your daughter]?

"A. Well, we went to a lot of malls and we went to the parks and we--about that, you know, on rainy days we stayed home and we had coloring books and we both colored together."

Defendant also testified about an occasion in which his daughter was upset when he could not take her to the park.

At that point, out of the presence of the jury, the prosecutor requested a ruling on the admissibility of evidence concerning the fact that, when defendant took his daughter to the park, he completed drug transactions. Over defendant's objections, the trial court found and concluded as follows:

"Well, I'm inclined to allow that testimony. It would appear that it does go directly to contradict what the defendant's testimony was per--pertaining to what he did--you spent a lot of time on what he did with the child growing up, taking care of her.

"And it certainly was intended to show that he's a--a--he was a good dad. That he did everything--that in fact, he was a better dad than she was a mom, in a sense, because he was the one taking care of this child * * *.

" * * * * *

"I think [the prosecutor] is correct that this goes directly to contradict his testimony concerning his characterization of what he did with this child and why--what his motivations were.

"As a matter of fact, in the report it--it specifically refers to his having left her in the playground--I don't know how far away it was, but it suggests that he left her--a two-and- year old child in the playground to go down and purchase drugs below and that certainly is--is relevant to how he cared for this child as he was assisting in her upbringing.

" * * * * *

"I think that marijuana, while it certainly--marijuana use is certainly prejudicial, I don't think that the prejudicial value outweighs the probative value in this instance. Particularly, where the door was opened.

"[U]nder the circumstances, no, I don't think that it is so prejudicial that it outweighs the probative value."

The prosecutor then cross-examined defendant concerning his activities at the park. Defendant admitted during that cross-examination that, on one occasion, he had been cited for purchasing marijuana at Washington Park, that his daughter was with him in the car when he did that, and that he often came to the park just to purchase marijuana.

In closing, defendant continued to press, among other things, his "good father" defense, concluding with a request that the jury consider whether the state had proven "that [defendant] is the type of father that would sodomize his daughter." The jury convicted defendant of first degree sodomy.

On appeal, defendant argues that, because his testimony did not clearly put his character in issue, the trial court erred in permitting the state to introduce evidence of his marijuana purchase at the park. The state contends that defendant "opened the door" to the prosecutor's questions by putting on his "good father" defense, in general, and describing the benevolent purposes of his trips to the park with his daughter, in particular.

OEC 404(2) provides, in part:

"Evidence of a person's character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:

"(a) Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same[.]"

The gist of that rule is that a defendant may choose to offer evidence of his or her own character, but at some risk: The state may cross-examine a defendant or introduce other character evidence to rebut a defendant's testimony. See generally Laird C. Kirkpatrick, Oregon Evidence 140-41 (2d ed. 1989). There are limitations that apply. A defendant may only introduce evidence of a "pertinent trait" of character, and whether a trait is pertinent depends on the nature of the crime charged. State v. Bailey, 87 Or.App. 664, 667, 743 P.2d 1123 (1987). The state may offer such evidence only if the defendant has "clearly" put his or her character in issue. State v. Hayes, 117 Or.App. 202, 205, 843 P.2d 948 (1992), rev. den. 316 Or. 528, 854 P.2d 940 (1993). We review the trial court's rulings allowing such evidence for abuse of discretion. Id. 117 Or.App. at 206, 843 P.2d 948.

In this case, defendant does not argue that he did not testify as to a trait of character that is "pertinent" to the crime charged. Instead, his only argument is that his testimony did not clearly put his character in issue. According to defendant, this case is controlled by our decision in Hayes. In that case, the defendant was charged with sodomizing one of his granddaughters. In response to a question on cross-examination, the defendant testified that he had never been "mean" to any of his children or grandchildren. Over the defendant's objection, the state then introduced evidence of the defendant's sexual molestation of two of his daughters and two other granddaughters. We held that, although the trial court has discretion to determine whether a defendant has opened the door to such rebuttal evidence, in that case, the defendant's testimony was not precise enough to be subject to rebuttal. Id.

The facts of this case, however, are different. There is not merely a single, ambiguous statement elicited on cross-examination. Instead, there is extended testimony from defendant that he was a "good father" to his daughter. Indeed, a significant part of defendant's case was that he was such a good father that it is not conceivable that he would have committed the acts of sodomy for which he was charged. Counsel argued repeatedly in opening statement that defendant loved his daughter and she loved him, and that he was not the sort of person who would commit sodomy on his daughter. Defendant then testified on direct examination about his loving care for his daughter, about his participation in family gatherings, about his trips to the mall, and about his time spent with his daughter coloring in coloring books on rainy days. In that context, defendant testified about the times he spent taking his daughter to the park, and the fact that she came to look forward to those activities. The clear implication of that testimony was that defendant was such a caring father that he could not have committed sodomy on his daughter. In closing argument, in fact, counsel for defendant asserted precisely that defense, asking the jury to consider whether the state had proven "that [defendant] is the type of father that would sodomize his daughter."

Under the circumstances, we cannot say that the trial court abused its discretion in finding that defendant had put in issue his...