State v. Pervish

• Decision Date: 09 November 2005
• Docket Number: 010130419; A116848.
• Citation: 123 P.3d 285
• Parties: STATE of Oregon, Respondent, v. Benjamin Edward PERVISH, Appellant.
• Court: Oregon Supreme Court

123 P.3d 285

STATE of Oregon, Respondent, v. Benjamin Edward PERVISH, Appellant.

010130419; A116848.

Court of Appeals of Oregon.

Argued and Submitted March 29, 2005.

Decided November 9, 2005.

Jesse Wm. Barton, Salem, argued the cause and filed the briefs for appellant.

David J. Amesbury, Assistant Attorney General, argued the cause for respondent. With him on the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before ARMSTRONG, Presiding Judge, and BREWER, Chief Judge, and MILLIKAN, Judge pro tempore.

BREWER, C.J.

Defendant appeals his multiple convictions for promoting prostitution, ORS 167.012, compelling prostitution, ORS 167.017, and witness tampering, ORS 162.285.¹ In six assignments of error, defendant asserts that (1) the trial court erred in failing to properly instruct the jury on each charge that 10 or more of its members must agree on a specific factual incident involving a particular victim; (2) the court erred in admitting uncharged misconduct evidence with respect to each of the charged offenses; (3) the court erred in denying his motion for a judgment of acquittal with respect to the witness tampering charge; (4) the court erred in calculating the length of defendant's post-prison supervision terms on his convictions for compelling prostitution;² (5) the court committed plain error under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by entering convictions for multiple crimes committed against the same victim; and (6) the court committed plain error under Blakely and Apprendi by imposing consecutive sentences for crimes involving the same victim.

The case was tried to a jury. In view of the nature of defendant's assignments of error, we state the facts in the light most favorable to the state. State v. King, 307 Or. 332, 339, 768 P.2d 391 (1989). The charges against defendant involved three women who worked for defendant as prostitutes: Kelly, McAllister, and Walford. All three women voluntarily went to work for defendant. However, each of the women was afraid of defendant. Defendant told the women that he had a previous conviction for manslaughter; defendant described the homicide as something he had gotten away with. The women were afraid that defendant might hurt them and, in McAllister's case, hurt her child. Officer Kosloske testified that pimps often make threats against their prostitutes' children to secure the women's cooperation.

On separate occasions, defendant nearly drowned Kelly and Walford in cold water-filled bathtubs because they did not make enough money. Defendant choked McAllister for the same reason, and he threatened to harm her if she left him. Defendant also assaulted the women for other reasons. On one occasion, he choked Kelly because he believed that she had broken his rule against having contact with certain men. On another occasion, defendant placed a pistol in Kelly's mouth and threatened to fire it. In addition, he threatened to burn, or did burn, Walford's mouth with a cigarette and threatened to kill her because he believed that she intended to report him to the authorities. Yet another time, defendant got into a wrestling-type fight with Walford because of her "attitude" in not giving him her money. During that episode, defendant caused his dog to become agitated and bite Walford on the leg.

The three women testified to engaging in numerous acts of prostitution for defendant over various lengths of time and involving many customers. The evidence identified nine specific customers who had paid McAllister for sex: (1) Nguyen, a manicurist who paid her $40 for sex; (2) a man known as "Chicken" who paid her $25 for sex; (3) a man named Gray who was in town for business and paid her $200 for sex; (4) a man whom McAllister met at a bar called "The Table"; (5) an older man with a "beer belly" and receding hair who did not speak English well; (6) a tall, skinny man; (7) a man in Beaverton whose wallet McAllister stole; (8) a man named Guzman from Hood River; and (9) a man named Morales-Zapateco who paid McAllister $25 for sex. The evidence showed that defendant encouraged McAllister's prostitution activities with her customers, and McAllister testified that she always delivered the money she received from prostitution activities to defendant.

Walford testified that defendant provided a place for her to live in his house and that she regularly engaged in prostitution while living there. Every night Walford turned her prostitution earnings over to defendant. Walford gave defendant most of the money she earned, and he took care of her needs. Walford had so many customers that she could not distinctly remember any of them.

The evidence also showed that defendant induced Kelly to engage in prostitution, that she did engage in prostitution on numerous occasions, and that she consistently gave defendant the money she made from that activity. Although Kelly testified that she had many customers while working for defendant, the evidence identified five customers in particular: Nguyen on 20 to 25 occasions, a man named Pedro approximately 30 times, Morales-Zapateco about six times, the man whom McAllister identified as "Chicken," and an elderly man. There also was evidence that, on January 4, 2001, and January 11, 2001, defendant made telephone calls to Kelly in which he sought to induce her not to testify against him regarding the prostitution charges. Kelly was not, however, subpoenaed to attend any court hearing until January 17, 2001.

Because of the nature of defendant's arguments on appeal, we summarize in detail the procedural history of the case. Defendant was charged by a 40-count indictment. Counts 1 through 9, 33, and 35 charged him with promoting prostitution but did not identify the prostitute involved. Counts 11 through 19 charged defendant with promoting prostitution and identified McAllister as the victim. Count 32, also for promoting prostitution, identified Walford as the victim. Count 34, charging promoting prostitution, identified Kelly as the victim. Counts 21 through 29, charging defendant with compelling prostitution, identified McAllister as the victim. Counts 36, 38, and 39—for compelling prostitution—identified Kelly as the victim. Counts 37 and 40, also charging defendant with compelling prostitution, named Walford as the victim. Count 31—tampering with a witness—specified Kelly as the victim. Counts 1 through 30 alleged that defendant committed the charged crimes on or between December 8 and December 15, 2000. Count 31 alleged a crime committed on or between January 1 and January 19, 2001. Counts 32, 33, 37, and 40 alleged crimes committed on or between February 1 and June 1, 2000. Finally, Counts 34, 35, 36, 38, and 39 alleged crimes occurring on or between March 1, 1999 and December 15, 2000.

At trial, the court granted defendant's motion for a judgment of acquittal on two counts of promoting prostitution, counts 10 and 20, and one count of compelling prostitution, Count 30. In its general instructions, the trial court told the jury:

"This being a criminal case tried to a twelve-person jury, ten or more of your number must agree upon your verdict as to each separate charge. When you have arrived at your verdict, the presiding juror will complete and sign the verdict form."

The court later explained the elements of each of the crimes with which defendant was charged. Near the end of its instructions, the court asked if the jurors had any questions. The following colloquy then occurred between the court and a juror:

"JUROR: Each count is each person that they allegedly has sex with; is that correct? I'm not understanding. The same counts, like 1 through 17, are the same verbiage, but why?

"THE COURT: Okay. When we are talking about the person involved, count 1 through count 9, count 11 through 19, and count 21 through 29 all involve acts involving [McAllister]. The State has alleged two different theories of promoting prostitution in count 1 through 9, and then count 11 through 19.

"JUROR: But I'm saying, 1 through 9 is the same verbiage. Why the same verbiage on each count 1 through 9?

"THE COURT: Because they're charged under the statute, under the same — the theories and elements are the same when we actually go through what has to be proven beyond a reasonable doubt. So that's why we're using, as you termed it, the same verbiage but, of course, the verbiage is very important because the count has the elements that must be proven in order to convict on that particular count.

"Please realize, what is being submitted to you is nine alleged separate acts of intercourse. I shouldn't say intercourse; I should say prostitution involving, in this particular case, [McAllister].

"Now, if you go through the elements, you will see, other than this general theory involving unlawfully and knowingly receiving money with intent to promote prostitution, unlawfully and knowingly receiving money, other than a prostitute being compensated for personally rendered prostitution services, pursuant to an agreement or understanding that the money was derived from prostitution activity, that particular language doesn't contain the name of the person. But if you look at the particular dates, and realize that it's simply an alternative theory; under this you could do that with regard to the other charges that involve the other two alleged victims."

Defendant did not object to the quoted general instruction or to the court's colloquy with the juror. When the court asked defendant's attorney whether he had any exceptions to the instructions given, counsel stated, "No exceptions." Further, defendant did not ask the court to instruct the jury that, to return a guilty verdict on a particular count, 10 or more of its members must agree on a specific factual incident involving a particular prostitute victim....