State v. Rodriguez/Buck

• Decision Date: 24 September 2009
• Docket Number: CA A131050,CA A131973,(CC 04102314,CC C051244CR,SC S055720),SC S055721.
• Citation: 347 Or. 46,217 P.3d 659
• Parties: STATE of Oregon, Respondent on Review, v. Veronica RODRIGUEZ, Petitioner on Review. State of Oregon, Respondent on Review, v. Darryl Anthony BUCK, Petitioner on Review.
• Court: Oregon Supreme Court

217 P.3d 659

347 Or. 46

STATE of Oregon, Respondent on Review, v. Veronica RODRIGUEZ, Petitioner on Review.

State of Oregon, Respondent on Review, v. Darryl Anthony BUCK, Petitioner on Review.

CC C051244CR

CA A131050

SC S055720)

(CC 04102314

CA A131973

SC S055721.

Supreme Court of Oregon, En Banc.

Argued and Submitted November 4, 2008.

Decided September 24, 2009.

On review from the Court of Appeals.^*

Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioners on review.

Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause for respondent on review. With him on the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Kevin H. Kono and Timothy R. Volpert, Davis Wright Tremaine LLP, Portland, filed a brief and reply brief on behalf of amici curiae Boys & Girls Club of Portland and Oregon Education Association.

BALMER, J.

These two criminal cases, which we consolidated for argument and disposition, require us to interpret and apply the requirement in Article I, section 16, of the Oregon Constitution that "all penalties shall be proportioned to the offense."¹

Veronica Rodriguez touched a 13-year-old boy when, standing behind him in a room with 30 to 50 other people, she brought the back of his head into contact with her clothed breasts for about one minute. Darryl Buck touched a 13-year-old girl when the girl, who was sitting next to him while she was fishing, leaned back to cast her fishing line, bringing her clothed buttocks into contact with the back of his hand and Buck failed to move his hand; that happened one or two more times. When they stood up, Buck brushed dirt off the back of the girl's shorts with two swipes of his hand. Each of those touchings was unlawful because a jury in Rodriguez's case and a judge in Buck's case found that they had been for a sexual purpose a fact that brought the physical contact within the definition of first-degree sexual abuse. ORS 163.427(1)(a)(A). Rodriguez and Buck were both convicted of that crime.

First-degree sexual abuse carries a mandatory sentence of six years and three months (75 months) in prison, under Ballot Measure 11 (1994). In each of these cases, however, the trial judge determined that the mandatory sentence was not "proportioned to the offense" committed by the defendant and therefore was unconstitutional under Article I, section 16. The trial courts imposed shorter sentences—16 months in the case of Rodriguez and 17 months in the case of Buck.² The state appealed the trial courts' sentencing rulings, and Rodriguez and Buck cross-appealed their convictions. The Court of Appeals affirmed the convictions, but agreed with the state that the trial courts should have imposed mandatory 75-month sentences. State v. Rodriguez, 217 Or.App. 351, 174 P.3d 1100 (2007); State v. Buck, 217 Or.App. 363, 174 P.3d 1106 (2007).

Defendants filed petitions for review, which we allowed. For the reasons that follow, we affirm defendants' convictions. However, we reverse the decisions of the Court of Appeals as to sentencing and affirm the sentences imposed by the trial courts. We conclude that the imposition of the mandatory 75-month sentence for first-degree sexual abuse, as applied to the facts of Rodriguez's and Buck's offenses, would violate the constitutional requirement that the penalty be proportioned to the offense.

I. FACTS AND PROCEEDINGS BELOW

We first describe the conduct that led to the convictions at issue here and the proceedings below. We then consider defendants' challenges to their convictions, before turning to defendants' arguments that imposition of Measure 11 sentences in their cases would violate the proportionality requirement of Article I, section 16. We take the facts from the decisions of the Court of Appeals and from the record.

A. State v. Rodriguez

Rodriguez was an employee at the Hillsboro Boys & Girls Club, where she worked with at-risk youth. One of the at-risk youths with whom she worked was a boy who was 12 years old when Rodriguez began working at the club. Rodriguez developed a close relationship with the boy and his family, spending time at his home, helping him with his homework, and giving him rides to the club and to school. She and the boy spent time together outside the club—often alone—in her car, at her apartment, or at his home— all in violation of club rules. Rodriguez told the boy not to tell anyone that they had been alone at her apartment. Rodriguez and the boy often hugged each other and put their arms around each other. The boy sat on her lap in her office and occasionally kissed her on the cheek. Rodriguez sent email messages to the boy in which she called him "babyface" and said, "I love you" and "love you lots." The boy sent Rodriguez similar messages. Rodriguez took the boy with her on several trips, including overnight trips to visit a former club member and to visit her family. Their conduct had raised concerns among staff members and became the subject of rumors among other children at the club.

The conduct that gave rise to this case occurred on February 14, 2005. Another staff member saw Rodriguez and the boy in the game room at the club, along with 30 to 50 other youths and at least one other staff member. The victim, 13 years old at the time, was sitting in a chair. Rodriguez was "standing behind him, caressing his face and pulling his head back; the back of his head was pressed against her breasts." 217 Or. App. at 354, 174 P.3d 1100. The staff member pointed that out to another staff member, who "saw [Rodriguez] run her hands along the victim's face and through his hair while the back of his head was against her breasts." Id. The contact lasted approximately one minute.

The staff member reported the incident to a supervisor, and the police were called. Rodriguez was eventually charged with first-degree sexual abuse based on that conduct, and a jury found her guilty.

B. State v. Buck

Buck and a friend, Schamp, took a 13-year-old girl and her 15-year-old sister, children of a friend of Schamp's, on a camping trip. Buck previously had told the girls that he thought that they were smart and beautiful; although he knew their ages, he thought that they looked much older. While Schamp and the older girl collected firewood near the campsite, the 13-year-old was fishing off a river bank. Buck sat down next to her and, to keep himself from sliding down the sloped river bank, placed his hands on the rock at his sides. His right hand was on the rock directly behind the victim. When the girl leaned back to cast her fishing line, the top part of her clothed buttocks came into contact with the back of Buck's hand. As the Court of Appeals summarized,

"The first time it happened, he immediately moved his hand away, but, because the victim did not flinch or react in a way that suggested that she was uncomfortable with the contact, he put his hand back where it was and allowed the contact to occur one or two more times as the victim continued to cast."

Buck, 217 Or.App. at 366, 174 P.3d 1106. The Court of Appeals described the other contact:

"While that was occurring, [Buck] slid down the rock a bit. To move himself back to where he was, he put his right hand on the victim's lower back and pushed himself up, using her body for leverage. [Buck] asked the victim whether he made her uncomfortable by touching her. She said that he had and told him that he needed to know what his limits were. He said that he did, apologized, and told her, `I have nothing but love and affection for you.' When the victim got up to leave, there was dirt on the back of her shorts. [Buck] brushed the dirt off with two swipes of the palm of his hand. The victim walked away and returned to the campsite, where [her sister] and Schamp were."

Id. at 366-67, 174 P.3d 1106.

Buck was charged with first-degree sexual abuse. He waived his right to a jury trial, and the case was tried to the court, which found him guilty.

C. Sentencing

Because of the passage of Measure 11 in 1994, the penalty for first-degree sexual abuse is a mandatory sentence of six years and three months (75 months) in prison. ORS 137.700(2)(a)(P).³ Under that statute, the trial court has no discretion to impose a lesser sentence based on the specific facts of the case, harm to the victim, or characteristics of the defendant. A trial court, however, like this court, has an obligation to consider a claim that a particular sentence is unconstitutional. Here, the two experienced trial judges who heard the cases each ruled that a 75-month sentence for the conduct for which the defendant before them was convicted would violate Article I, section 16.

In Rodriguez, Judge Campbell applied the "shock the moral sense" test that this court first set out in Sustar v County Court for Marion Co., 101 Or. 657, 201 P. 445 (1921)— the same test that has been followed by this court in subsequent cases and that we follow again today. She explained some of the reasons that she considered the 75-month sentence unconstitutional:

"I have to first of all take a look at Ms. Rodriguez, who has absolutely no prior criminal record of any kind. She's lived an exemplary life. * * * [S]he has done a tremendous amount for youth in our community and in other communities.

"I have to look at the crime itself. This was a touching, and as stated apparently by everybody, in a crowded room, over clothing, not prolonged. And it's * * * as [the deputy district attorney] certainly knows, because he's prosecuted many cases in this courtroom, * * * the contact was probably the least of any I've ever had.

"* * * I think this is a case that just cries out for shocking if the 75—month sentence were imposed—being shocking to any reasonable person, and I'm not going to impose it."

Judge Campbell imposed the sentence that Rodriguez would have received under the Oregon...