State v. Stephens

Decision Date06 February 2013
Docket NumberC091434CR; A146040.
PartiesSTATE of Oregon, Plaintiff–Respondent, v. Melissa Louise STEPHENS, Defendant–Appellant.
CourtOregon Court of Appeals


Robert B. Hamilton, Portland, argued the cause for appellant. With him on the brief were Lisa A. Maxfield and Pacific Northwest Law LLP.

Joanna L. Jenkins, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.


Defendant, an elementary school teacher, was convicted of sexual crimes against C.M. when he was a student in her fourth, fifth, and sixth grade classes.1 C.M. did not report the alleged abuse to police until he was 17 years old. On appeal, defendant asserts, first, that the trial court erred in allowing the prosecutor to impeach a defense witness by questioning her decision, after consulting her lawyer, to refuse interview requests from prosecution investigators; and second, in allowing the prosecution to introduceevidence of uncharged sexual conduct involving defendant and C.M. We affirm.

Defendant's defense at trial was that, contrary to C.M.'s reports and testimony, the alleged sexual encounters with him did not occur. Thus, credibility was a key issue at trial. One incident bringing the credibility of C.M. into focus involved C.M.'s report that, on one occasion when he and defendant were in a classroom together, defendant had partially removed or taken off her shirt and the two were kissing when there was a knock on the door. C.M. reported that defendant ran to the back of the classroom and that C.M. opened the door to let in Krista Mahler, who worked with defendant as an art teacher. According to C.M., defendant and Mahler then talked briefly.

Detectives wanted to corroborate C.M.'s report. They contacted Mahler, and she initially agreed to meet with them. Subsequently, however, she spoke to her attorney, who called one of the detectives, Rose, on her behalf and told him that Mahler would not meet with him.

Mahler was subpoenaed to appear at trial. The state did not call her as a witness, but defendant did. In her direct testimony, Mahler recalled a time when she had tried to open a classroom door and found that she couldn't. She testified that she knocked on the door and that C.M. immediately opened it. According to Mahler's version of the incident, defendant was immediately visible when the door opened and did not emerge from a back room. Mahler testified that defendant was sitting at the table “and their work was right there.” Mahler testified that she asked why the door was locked, and C.M. and defendant told her that they had not realized that it was. Mahler was aware that the school had an open door policy, but recalled knowing that sometimes classroom doorknobs stuck. She testified that the incident “seemed very accidental. It wasn't something that put a red flag out for me.”

The prosecutor wanted to show that Mahler was biased in favor of defendant because of their personal and employment relationship. On cross-examination, he asked Mahler to explain what had happened to cause her to decide to cancel her meeting with the investigator. The following exchange occurred:

“Q. Okay. Now, after the allegations came out, you received a phone call that was on July 13th of 2009 from a man identifying himself as Detective Jack Rose in this case?

“A. I did.

“ * * * * *

“Q. Okay. And you agreed to meet him in person and talk to him?

“A. I did.

“ * * * * *

“Q. Okay. But several hours later, you had your lawyer call him back and say, ‘You're not to meet with my client, Krista Mahler.’

“A. I did.

“ * * * * *

“Q. Something happened in the couple of hours between you agreeing to call Jack Rose back and your lawyer saying, ‘No way.’

“A. Mm-hmm.

“Q. What was that?

“A. That was me having no experience with any kind of case like this—

“Q. Right.

“A.—never walking into a courtroom, knowing nothing about attorneys—

“Q. Right.

“A.—working for a program that all of a sudden this is happening in—

“Q. Right.

“A.—and so me seeking out an attorney so that I know exactly what I can and cannot do—

“Q. Right.

“A.—what is required of me, and basically so that I know what my rights are. He said, ‘You can go talk to Detective Rose if you'd like, but if he does not subpoena you, you aren't required to.’ So I didn't.

“Q. It would have been just as easy of a matter to sit down and give the detective a fifteen-minute interview with your lawyer present?

[Defense counsel]: Objection, Your Honor.

“The Court: Overruled

[Prosecutor]: You could have chosen that route?

“A. I could have.

“Q. Okay. What happens if people who are potential witnesses to crimes don't talk to police?

[Defense counsel]: Objection, Your Honor.

“The Court: Sustained.

[Prosecutor]: Don't you see any value in talking to—

[Defense counsel]: Objection, Your Honor.

“The Court: Sustained.

“ * * * * *

[Defense counsel]: This whole line of questioning is just designed to—it's asking the same question in as many different ways as [the prosecutor] can think of.

“The Court: Yeah, but you do the same thing. So tell me what that means.

[Defense counsel]: Well, it's just—it has absolutely no relevance to this proceeding.

“The Court: And I'm thinking about that. Doesn't it go to bias, motives, or interests of the witness, why she didn't want to talk?

[Defense counsel]: Well, you know, the fact of the matter is her lawyer gives her legal advice, and then the lawyer calls up the detective. It would be, first of all, privileged.

“The Court: I think that's waived. She's got on the stand and testified.

[Defense counsel]: Well, but in terms—privileged in terms of communication between she and her lawyer.

“The Court: She's not asserted any privilege. I heard no privilege asserted. You don't get to assert it for her.

[Defense counsel]: Well, I'm not asserting it. I'm saying I think it's privileged—

“The Court: It's not.

[Defense counsel]: It depends on her choice of—

“The Court: It's not that. Go on to something else.

“ * * * * *

“The Court: Okay. I think [the prosecutor] gets to explore her bias, motives—bias, motives or interest of the witness, and I think you get to ask regarding why she didn't want to speak to the police, that's about it, and then you move on.”

In closing, the prosecutor proposed to the jury that Mahler had decided not to talk to investigators because she had witnessed inappropriate sexual behavior by defendant in the locked classroom and did not want to provide incriminating information.

In her first assignment of error, defendant asserts that the prosecutor's questioning and statement in closing argument about Mahler's decision to speak with her attorney and to remain silent were comments on her exercise of privilege and therefore inadmissible under OEC 513(1): “The claim of privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn from a claim of privilege.” “Privilege,” for purposes of OEC 513(1), encompasses privileges not enumerated in the evidence code, including the right to counsel and the right to remain silent. John Deere Co. v. Epstein, 307 Or. 348, 354, 769 P.2d 766 (1989). The state responds initially that defendant did not adequately preserve the claim of error that she raises on appeal. We reject that assertion. Defendant argued that facts surrounding Mahler's consultation with her own attorney “would be, first of all, privileged.” That was sufficient.

The state is on firmer ground in arguing that, even if Mahler's decision to consult her attorney and remain silent with respect to the investigation was privileged, and questioning her about that decision violated OEC 513(1)—a concession that the state does not make and a conclusion that we do not address—defendant's objection to that line of questioning did not occur until well after that information had been elicited without objection. As the exchange quoted above demonstrates, the state is correct. Thus, Mahler waived any privilege she might have had. OEC 511 (waiver by voluntary disclosure). And, in any event, even if admitting the evidence to which defendant objected was error, it was harmless in light of the evidence to which she did not object. We reject defendant's first assignment of error.

In her second assignment, defendant contends that the trial court erred in rejecting her motion in limine in which she sought to exclude C.M.'s testimony about uncharged incidents of sexual contact with defendant. Defendant argues that the evidence was inadmissible under OEC 404(3) because it was offered purely to prove propensity and was not relevant to any permissible fact at issue.2 The state responds preliminarily that defendant did not preserve this claim of error because, at trial, she conceded that the evidence was relevant and argued only that the probative value of the disputed evidence significantly outweighed its undue prejudice and was therefore inadmissible under OEC 403.3 In any event, the state contends, the evidence was relevant for several permissible purposes. To put those arguments in context, we provide the following excerpt from the transcript. It contains the entire discussion of uncharged conduct.

[Defense counsel]: And then Judge, there are several instances in the alleged victim's * * * statements, where he talks about prior acts which are uncharged—

“The Court: Oh, okay, this is the—

[Defense counsel]:—allegations and—

“The Court: This is the part that I remember from our discussion yesterday.

[Defense counsel]: Right. This is—which we gave the Court a heads-up on yesterday, and I certainly submit that, you know, these uncharged prior acts are inadmissible. I'm not—certainly not going to say that they are irrelevant, but I think that any...

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4 cases
  • State v. Garcia, A158837
    • United States
    • Court of Appeals of Oregon
    • 10 Octubre 2018
    ...Rivera. In response to defendant’s motion, as to the uncharged sexual misconduct, the state primarily relied on State v. Stephens , 255 Or. App. 37, 296 P.3d 598, rev. den. , 353 Or. 868, 306 P.3d 640 (2013), to argue that the evidence was relevant and admissible under OEC 404(3).2 In Steph......
  • State v. Molette, 09C47991
    • United States
    • Court of Appeals of Oregon
    • 6 Febrero 2013
    ...defendant for crimes committed in 1995 and 1996, years after November 1, 1989. Gordon does not address whether the predicate sentences to [296 P.3d 598]impose the presumptive sentence under ORS 137.719(1) are determined under Oregon law, the law of the sentencing state, or both. The law in ......
  • Stephens v. Persson, A161299
    • United States
    • Court of Appeals of Oregon
    • 11 Abril 2018
    ...of first-degree sexual abuse, and one count of first-degree sodomy for conduct involving one of her students, C. See State v. Stephens , 255 Or. App. 37, 39, 296 P.3d 598, rev. den. , 353 Or. 868, 306 P.3d 640 (2013) (setting forth facts underlying defendant's convictions). She then petitio......
  • State v. Stephens
    • United States
    • Supreme Court of Oregon
    • 25 Julio 2013
    ...Or. 868306 P.3d 640Statev.Melissa Louise StephensNOS. S061283, A146040Supreme Court of OregonJuly 25, 2013 255 Or.App. 37, 296 P.3d 598...

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