State v. Leistiko

• Citation: 352 Or. 172,282 P.3d 857
• Parties: STATE of Oregon, Respondent on Review, v. Ronald Marcus LEISTIKO, Petitioner on Review.
• Decision Date: 19 July 2012
• Court: Oregon Supreme Court

352 Or. 172

282 P.3d 857

STATE of Oregon, Respondent on Review,

v.Ronald Marcus LEISTIKO, Petitioner on Review.

Supreme Court of Oregon,

En Banc.

(CC C072939CR, CA A141169, SC S059191).

Argued and Submitted Nov. 8, 2011.

Decided July 19, 2012.

On review from the Court of Appeals.^*

Meredith Allen, Senior Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief was Peter Gartlan, Chief Defender.

Shannon T. Reel, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

KISTLER, J.

The state charged defendant with, among other things, three counts of first-degree rape. Each count involved a different victim and arose out of a separate incident. To prove that each of the three victims had not consented to defendant's sexual advances, the state offered evidence that defendant had forcibly compelled a fourth woman to engage in sexual intercourse with him.¹ The trial court ruled that the fourth woman's testimony was admissible, and the jury convicted defendant of two of the three counts of first-degree rape.² On appeal, the Court of Appeals upheld the admission of the fourth woman's testimony, relying in large part on this court's decision in State v. Johnson, 340 Or. 319, 131 P.3d 173 (2006). State v. Leistiko, 240 Or.App. 338, 343–45, 246 P.3d 82 (2011). We allowed defendant's petition for review and now reverse the Court of Appeals decision in part. We also reverse the trial court's judgment in part and remand for further proceedings.

Each of the three victims testified at trial. The first victim told the jury that she is an adult entertainer who advertises on the “erotic services” page of Craigslist, a website on which people post classified ads. Defendant called in response to her ad, and she came to his house to dance for him while he masturbated. While she was dancing, defendant repeatedly attempted to grab her, and she stepped back, telling defendant, “[I]f you keep doing that, I will leave. Don't do anything until I tell you to.” After a while, she began taking steps to leave. When she did so, defendant “stood up and tackled [her] as if he was a football player and [she] hit the ground.” She testified that “he pu[t] his hands around my neck and [was] choking me to the point where I'm almost blacking out.” Later he put a pillow over her face, making it difficult for her to breathe. She explained that, “between the pillow and the choking, [I'm] realizing there's no way, there is no way I'm getting out of this * * * and so I told him that if he used a condom, I would quit screaming.” Defendant complied with her request and had sexual intercourse with her.

The second victim testified that she worked as a prostitute and that her pimp advertised her services on the erotic services page of Craigslist. She met defendant three times. The first time, she was 15 years old. She came to defendant's home with another woman in response to defendant's telephone call asking for a “two girl special.” That time, both women had sexual relations with defendant. Later, defendant called and asked for the second victim again. When she went to his house, they discussed whether he would wear a condom. He did, they had intercourse, but he did not complete the act. He took off the condom, and they lay there for a few minutes. Then, he began touching her and started to “force himself on top of [her].” She testified that she told him to put a condom on first, but “he said no and he grabbed my arms and held them with one hand above my head and he forced my legs apart with his knees and raped me.” ³ After that, the second victim saw defendant one more time. He tricked her into getting into his car at a restaurant and drove her some distance against her will. She managed to escape, however, before any sexual activity occurred.

The third victim testified that she was 18 and had just graduated from high school when she met defendant. She had placed a personal ad on the “women seeking men” page of Craigslist. According to the third victim, people who advertise on that page of Craigslist are looking for a friend or a relationship. Defendant called the third victim in response to her ad, and they exchanged telephone calls and emails. In their emails, he sent her pictures of his genitalia and she reciprocated. She also discussed her dildo with him, and he asked her to come to his house and bring it with her, which she did one evening.

When the third victim arrived at defendant's house, he fixed her a drink. Several times, he tried to kiss her as they walked around the house, but she turned her head away. She lay down on his bed and took a nap for a few minutes, and then they got into the hot tub. She was clothed; he was not. Although she initially did not want to sit near him, he began touching her and encouraging her to touch him. After they got out of the hot tub, they gave each other back massages. At one point, he stopped massaging her back, got on top of her, and did not respond when she told him to “stop.” In an attempt to “calm [him] down a little bit,” she suggested that he use the dildo on her, which he did. After a few minutes, he grew tired of that activity and held her down with both of his hands and had sexual intercourse with her. He put enough pressure on her chest to make her short of breath. She kept telling him to stop, and he “kept saying, ‘Don't fight it. We're just trying to have fun.’ ” Afterwards, he cooked a hamburger for her and did some work on her car.

After those witnesses testified, the state made an offer of proof. It called a fourth woman, who testified outside the presence of the jury. She explained that she works as a masseuse; however, because she is not licensed, she does not advertise her services on the therapeutic services page of Craigslist. Rather, she advertises on the erotic services page. Each advertisement states that she is “not a full service girl”—a disclaimer that is intended to put customers on notice that she does not provide sexual services for money. If a client asks for sexual contact during the massage, she tells them, in a quiet, firm voice, “That's not what I do.”

Defendant answered her advertisement and came to her house. Initially, “he was a perfect gentleman.” Later, however, he started asking “if [she] did other things for money.” She explained, more than once, that she did not. The third time he asked, he began to get aggressive. At that point, she said, “if you have a problem with this, I'm going to ask you to leave.” He grasped her by the shoulders, sat her down on the bed and began massaging her back and shoulders. Then he pushed her face down on the bed, told her this was going to be fun, that she'd “never had a grown man like him and [that] he would give [her] what [she] needed.” After fighting for 30 seconds, she gave up. At some point, they moved from the bed to the floor. She testified that she was on the floor with her face in the carpet. He put pressure on “[her] lower back, right above [her] hip bones with [his] forearm” and had sexual intercourse with her.

After considering the state's offer of proof, the trial court ruled that the fourth woman's testimony was admissible to prove that the three victims had not consented to defendant's advances. The fourth woman then testified to essentially the same facts set out above. Defendant, for his part, did not dispute that he had had sexual intercourse with the three victims. He testified, however, that the women had not resisted his advances but instead had consented to engage in sexual intercourse with him. Put differently, defendant did not concede that he had forcibly compelled any of the three victims to engage in sexual relations with him. After hearing the evidence, the jury convicted defendant of raping the first two victims but acquitted him of raping the third.

On appeal, defendant challenged the trial court's ruling admitting the fourth woman's testimony.⁴ In upholding that ruling, the Court of Appeals noted that this court had stated in Johnson that “evidence of a defendant's uncharged misconduct can be probative regarding the issue of whether an alleged victim consented to sexual contact with the defendant.” Leistiko, 240 Or.App. at 343, 246 P.3d 82. Following Johnson, the Court of Appeals concluded that the evidence in this case permitted the jury to find that defendant had established a plan for obtaining sexual access to women without their consent and that that evidence was relevant to rebut defendant's claim that the three victims had consented to his sexual advances. Id. at 345, 131 P.3d 173. We allowed defendant's petition for review to consider whether the fourth woman's testimony was admissible.

Before turning to that issue, we address two preliminary issues. The first is procedural. ORS 132.560(1)(b)(A) provides that two or more offenses may be charged in one indictment as separate counts if the same person or persons allegedly committed each offense and the offenses are “[o]f the same or similar character.” A trial court, however, may sever those counts and “order an election or separate trials of [the joined] counts” if trying the counts together would substantially prejudice either the state or the defendant. ORS 132.560(3); see generally State v. Miller, 327 Or. 622, 626–33, 969 P.2d 1006 (1998) (discussing when joining similar offenses will prejudice a defendant). When a trial court declines to sever joined offenses, and evidence relating to one offense is not admissible to prove another joined offense, a trial court ordinarily will instruct the jury to consider the evidence on each offense separately to prevent the jury from using the evidence offered to prove one offense to decide another joined offense. See Miller, 327 Or. at 632, 969 P.2d 1006 (...