State v. Magana

• Decision Date: 16 May 2007
• Docket Number: A125662 (Control).,A125663.
• Citation: 212 Or. App. 553,159 P.3d 1163
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Roger Eugene MAGANA, Defendant-Appellant.
• Court: Oregon Court of Appeals

159 P.3d 1163

212 Or. App. 553

STATE of Oregon, Plaintiff-Respondent, v. Roger Eugene MAGANA, Defendant-Appellant.

A125662 (Control).

A125663.

Court of Appeals of Oregon.

Argued and Submitted July 11, 2006.

Decided May 16, 2007.

Andy Simrin, Salem, argued the cause and filed the brief for appellant.

Janet A. Klapstein, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before BREWER, Chief Judge, and HASELTON and ROSENBLUM, Judges.^*

BREWER, C.J.

Defendant, a former City of Eugene Police Officer, was convicted of numerous crimes, including multiple sex offenses, coercion, and official misconduct, in which the victims were 12 women whom he met in the course of his duties.¹ He appeals, raising six assignments of error. We affirm.

A detailed recitation of the facts is not necessary to our resolution of defendant's assignments of error. As noted, the victims in this case were women with whom defendant came into contact in the course of his duties as a police officer, most often in the course of investigating drug, alcohol, or prostitution-related offenses or domestic disturbances. During those investigations, defendant would tell the victims that he would not arrest or cite them if they would engage in sexual activity with him. In one instance, defendant told a victim that he would have her children taken away if she resisted his sexual advances; after she complied, he promised to help her with legal matters if she kept quiet. In another instance, defendant observed a different victim making a drug purchase. He handcuffed her and put her in his patrol car, then coerced her into performing oral sex on him. Later, defendant arrested the same victim, then picked her up in his personal vehicle after she was released. He told her that he had helped to get her out of jail, and so she "owed him." He again demanded oral sex, and she complied.

Ultimately, in 2003, one of the victims called 9-1-1, leading to an investigation of defendant, indictments in two consolidated cases with a total of 52 counts, and conviction on 42 of those counts.² The trial court imposed consecutive sentences on 17 of the counts involving 10 of the victims. The remaining counts were sentenced to be served concurrently. The total term of defendant's incarcerative sentence was 975 months.

Defendant and the state both present combined arguments on defendant's first three assignments of error. We similarly discuss those assignments together. In the assignments, defendant argues that the trial court erred by (1) disallowing his demurrer to one of the indictments on the ground that some of the counts lacked enough specificity to allow him to prepare a defense; (2) denying his motion to require the state to make pretrial elections regarding the coercion and misconduct charges; and (3) denying his motion in limine to exclude evidence of uncharged acts of misconduct.

The pertinent indictment contained 51 counts, including numerous counts of rape, sexual abuse, sodomy, harassment, kidnapping, burglary, coercion, and official misconduct. Defendant demurred to the indictment, challenging the specificity of the official misconduct and coercion counts. In particular, defendant argued that those counts were insufficient to apprise him of what conduct was alleged to constitute the violations. He renews that argument on appeal. We review a trial court's ruling on a demurrer to a charging instrument for errors of law. E.g., State v. Couch, 196 Or. App. 665, 672, 103 P.3d 671 (2004), aff'd, 341 Or. 610, 147 P.3d 322 (2006).

With the exception of changing the name of the alleged victim and time period, the official misconduct counts are identical, as are the coercion counts. The third count is representative of the official misconduct counts:

"In relation to [JS], the defendant on or between January 1, 1999 and January 1, 2003, in Lane County, Oregon, being a public servant and with the intent to obtain a benefit or harm another, did unlawfully and knowingly fail to perform a duty imposed upon him as a public servant by law, or one clearly inherent in the nature of the office, or did perform an act constituting an unauthorized exercise in official duties; contrary to statute and against the peace and dignity of the State of Oregon."

ORS 162.415 defines first-degree official misconduct as follows:

"(1) A public servant commits the crime of official misconduct in the first degree if with intent to obtain a benefit or to harm another:

"(a) The public servant knowingly fails to perform a duty imposed upon the public servant by law or one clearly inherent in the nature of the office; or

"(b) The public servant knowingly performs an act constituting an unauthorized exercise in official duties."

The sixth count of the indictment is representative of the coercion counts:

"The defendant, on or between January 1, 1999 and January 1, 2003, in Lane County, Oregon, did unlawfully and knowingly compel or induce [JS] to engage in or abstain from engaging in conduct in which [JS] had a legal right to engage or abstain from engaging by means of instilling in [JS] a fear that if [JS] refrained from the conduct or engaged in the conduct contrary to the compulsion or inducement the said defendant would unlawfully use or abuse the said defendant's position as a public servant by performing some act within or related to official duties, or by failing or refusing to perform an official duty in such a manner as to affect some person adversely; contrary to statute and against the peace and dignity of the State of Oregon."

ORS 163.275 defines the crime of coercion as follows:

"(1) A person commits the crime of coercion when the person compels or induces another person to engage in conduct from which the other person has a legal right to abstain, or to abstain from engaging in conduct in which the other person has a legal right to engage, by means of instilling in the other person a fear that, if the other person refrains from the conduct compelled or induced or engages in conduct contrary to the compulsion or inducement, the actor or another will:

"* * * * * "(g) Unlawfully use or abuse the person's position as a public servant by performing some act within or related to official duties, or by failing or refusing to perform an official duty, in such manner as to affect some person adversely."

An indictment must contain a "statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended[.]" ORS 132.550(7). Indictments that charge offenses using the words of the statute are generally sufficient. State v. Hale, 335 Or. 612, 621, 75 P.3d 448 (2003), cert. den., 541 U.S. 942, 124 S.Ct. 1667, 158 L.Ed.2d 366 (2004) ("[W]e now confirm that, as this court so many times has held, an indictment generally is sufficient if it charges an offense in the words of the statute."). Defendant does not contest that the pertinent charges in the indictment in this case tracked the wording of the statutes defining official misconduct and coercion. Defendant also acknowledges that imprecision in an accusatory instrument may, in most cases, be cured by pretrial discovery. E.g., State v. Andre, 178 Or.App. 566, 569, 38 P.3d 949 (2002). However, defendant argues that charging him in the words of the statute and providing pretrial discovery were insufficient in the circumstances of this case. In particular, in defendant's view, because the statutes under which he was charged are too complex and the discovery that the state provided was too voluminous, he could not ascertain what he was alleged to have done wrong.

First, defendant elaborates, the official misconduct and coercion statutes contain so many alternatives that indictments that merely track the statutory wording allege little more than that a defendant "committed crimes." Defendant contends that an indictment for those crimes is insufficient if it fails to identify the defendant's alleged wrongful act or omission. To the extent that defendant argues that an accusatory instrument that charges statutory alternatives is insufficient, the Supreme Court rejected a similar argument in State v. Fair, 326 Or. 485, 953 P.2d 383 (1998). In Fair, the defendant was charged with racketeering under ORS 166.720(3), which provides that "[i]t is unlawful for any person * * * associated with[] any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity * * *." (Emphasis added.) "Pattern of racketeering activity" was, at the time of the charged misconduct, defined as "engaging in at least two incidents of racketeering activity that have the same or similar intents, results, accomplices, victims or methods of commission or otherwise are interrelated by distinguishing characteristics, including a nexus to the same enterprise, and are not isolated incidents * * *." ORS 166.715(4) (1993).³ The defendant was charged using the statutory definition of "pattern of racketeering activity," and his demurrer focused on the sufficiency of that wording. Fair, 326 Or. at 488, 953 P.2d 383. The defendant contended that an indictment for racketeering that merely tracked the statutory definition of "pattern of racketeering activity" was too conclusory, arguing that the indictment should allege facts demonstrating particular kinds of similarities or distinguishing characteristics, or a particular nexus among predicate offenses. Id. The Supreme Court rejected the defendant's argument:

"At its core, defendant's argument is that the charged crime is complex, making the indictment difficult to defend against. But complex is not the same as uncertain, and difficult is not the same as indefinite. Even if it is complex or difficult to defend against, an indictment may allege...