State v. Rockett
| Decision Date | 11 March 2020 |
| Docket Number | A160080,A160031 (Control) |
| Citation | 463 P.3d 1,302 Or.App. 655 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Steven Douglas ROCKETT, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Lindsey Burrows, Deputy Public Defender, argued the cause and filed the supplemental brief for appellant. Also on the opening brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
David B. Thompson, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Erin K. Olson and Law Office of Erin Olson, P. C., filed the brief amicus curiae for Victims.
Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.*
In a consolidated appeal, defendant appeals a judgment of conviction for 13 sexual offenses committed against A, B, and C.1 In nine assignments of error, defendant contends that the trial court erroneously admitted uncharged misconduct evidence about defendant's Facebook communications and hidden-camera evidence, erroneously excluded impeachment evidence, and improperly imposed compensatory fines. Defendant argues that the trial court's incorrect evidentiary rulings entitle him to reversal of his convictions and a new trial. Alternatively, defendant contends that, if we uphold the convictions, we must remand for resentencing because of errors in imposing the compensatory fines.
The state responds that all of defendant's arguments are either unpreserved or present no basis for reversal. We write to address defendant's assignments of error related to the admission of Facebook communications and three categories of hidden-camera evidence and the imposition of compensatory fines, and we reject the remaining assignments of error without discussion.2 We conclude that all three categories of the hidden-camera evidence and the Facebook communications with A were admissible under OEC 404(3). Further, the trial court's balancing under OEC 403 to determine the admissibility of that evidence was appropriate, and the court did not abuse its discretion in admitting that evidence. Also, we conclude that defendant failed to object to the trial court's findings that A, B, and C had suffered economic damages and were victims eligible to recover damages in a civil action against him for purposes of an award of a compensatory fine under ORS 137.101. Hence, we reject defendant's challenge to the compensatory fines in the amounts that the court awarded to each of the victims. Accordingly, we affirm.
The following facts are procedural or undisputed. The state charged defendant with multiple sexual offenses committed against three sisters, A, B, and C, all of whom were under the age of 14 at the time of the alleged acts. All of the charges stemmed from conduct alleged to have occurred between 2003 and 2013. During that period, the girls spent considerable time with defendant, who was a family friend. Over the years, defendant offered various types of support to Joseph and Cheryl, the father and mother of the girls. When the parents needed extra help, the girls would sometimes live with defendant for periods ranging from weekends to several months.
In August 2013, Cheryl was struggling with many of A's behaviors. Because of that, Cheryl told A that she was going to call defendant and ask him if A could live with him again. A said that, if her mother did that, A would run away. When Cheryl asked why, A told her that "[defendant] fucking raped me." A told Cheryl that she had proof and showed Cheryl Facebook messages from June 2013, when defendant asked A to take and send photographs of herself to him. B was in the room during that conversation, and she started crying and said that defendant had touched her when she was at his house. Cheryl responded by placing a call to C to ask her whether defendant had "ever touched [her] or done anything to [her]." C said that he had.
Cheryl called the police, and Detective Cox was assigned as lead investigator in the case. Cox interviewed A and B in August 2013. A and B were thereafter referred to CARES, a medical program that assesses children to determine whether they have been abused. Among other things, A reported in her interview with CARES that defendant had asked her through Facebook messages to send him "naked photos" of herself.
Both A and B disclosed in their interviews with Cox and CARES that they had been subjected to sexual abuse by defendant. During the investigation, Cox and another detective interviewed defendant about the girls’ allegations. In the interview, the detectives confronted defendant with his Facebook messages with A in which defendant had told A to send him "nice quality pictures that show how you have changed since the last pictures I have of you" and that "they better be good quality and no shy." When A responded that she did not have a mirror, defendant told her to "use the one in the bathroom just stand back and hold the camera higher up and point it downwards to get the full picture." Defendant messaged A that he had to get back to work, and that "now would be a good time for you to go take a shower and take the pictures while you are in there so you get them done and out of the way." A responded that she took one this morning and "thought it could have clothes on," and defendant wrote back, "I will make you a deal just one without and all the others with as long as you get a good picture and not have to show your face." A had lost her iPhone, and defendant messaged her that, "if you are going to have to work for a replacement phone can [sic ] only do it on Tuesday or Wednesday, only times I have to take off from work." A responded that
Defendant told the detectives that he had asked A in his Facebook messages for photographs of her because he wanted to see how much she had grown since he had seen her in person. He also claimed that he did not mean for A to take the photographs in the shower but that she should take a shower. He also claimed that he did not remember the Facebook conversation and had been drinking alcoholic "slushies" at that time.
During the investigation, police discovered several devices in defendant's home that contained hidden cameras, including a clock with a camera and a hidden camera in an upstairs bathroom. The bathroom camera captured images of the large bathroom mirror and vanity area, and it was connected to a digital recording device in defendant's master bedroom. Detective Rookhuyzen viewed images captured on the camera, and he believed that the camera was positioned to capture images of people entering and leaving the shower. The police department spent considerable time attempting to identify the children whose images were on the camera because they were potential victims of defendant's use of it. The time it took to identify the potential victims prevented police officers from identifying other witnesses to whom A and B had disclosed their abuse. When Detective Cox left the Washington County Sheriff's Office in August 2014, not all of the potential victims from defendant's use of the hidden bathroom camera had been identified.
Based on evidence gathered regarding defendant's alleged acts of sexual abuse toward A, B, and C, the state charged defendant with the following crimes: one count of first-degree unlawful sexual penetration (Count 1), ORS 163.411 ; six counts of first-degree sexual abuse (Counts 2-3, 5-6, and 13-14), ORS 163.427 ; three counts of using a child in a display of sexually explicit conduct (Counts 4 and 11-12), ORS 163.670 ; two counts of second-degree sodomy (Counts 7-8), ORS 163.395 ; and two counts of second-degree rape (Counts 9-10), ORS 163.365.
The evidence discovered during the investigation also led to charges in two other cases involving exploitation and sexual abuse of minors. Those cases were joined with the case involving A, B, and C. Defendant moved to sever the three cases for trial. The trial court denied defendant's motion, and the court ruled that all the evidence in each case would be admissible in all three cases.
Before trial, defendant filed a motion in limine that sought to exclude 11 categories of "uncharged conduct and/or prior bad act" evidence, which included Facebook communications by defendant with A and with people in the Philippines; evidence from defendant's computer and emails; child pornography; and hidden-camera evidence. Defendant's motion in limine asserted that, under the proper application of OEC 404(3),3 OEC 404(4),4 and OEC 403,5 the trial court should exclude all 11 categories of evidence. Defendant made the following arguments: (1) none of the evidence met the test for "doctrine of chances" evidence to prove intent, as set forth in State v. Johns , 301 Or. 535, 725 P.2d 312 (1986) ; (2) none of the evidence was admissible to prove motive; (3) the evidence would be offered only "to demonstrate that defendant is a bad man and has a propensity to commit the charged act"; and (4) even if the evidence were admissible as an "exception[ ] to the general rules against character evidence," it would be unfairly prejudicial because it would have "undue emotional impact on the jury," would likely "confuse and mislead the jury," and "could inflame the jury and cause the jury to render an improper decision."
The pretrial hearing on defendant's motion took place over two days. During the first day, the state sought to admit Facebook communications that defendant had had with people in the Philippines and emails and photographs from defendant's computer because they contained evidence of defendant's sexual conduct with children in the Philippines and of defendant's possession of...
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State v. Altabef
...acts evidence is relevant for nonpropensity or propensity purposes under OEC 404(3) or OEC 404(4) for legal error. State v. Rockett , 302 Or. App. 655, 667, 463 P.3d 1 (2020). We review a trial court's balancing under OEC 403 for an abuse of discretion and "generally [defer] to the trial co......
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State v. Altabef, 495
...is relevant for nonpropensity or propensity purposes under OEC 404(3) or OEC 404(4) for legal error. State v. Rockett, 302 Or App 655, 667, 463 P3d 1 (2020). We review a trial court's balancing under OEC 403 for an abuse of discretion and "generally [defer] to the trial court's decision whe......