State v. Sundberg

• Jurisdiction: Oregon
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Arick Titus SUNDBERG, Defendant-Appellant.
• Citation: 225 P.3d 89,233 Or. App. 77
• Docket Number: 05102194.,A135487.
• Court: Oregon Court of Appeals
• Decision Date: 30 December 2009

225 P.3d 89

233 Or. App. 77

STATE of Oregon, Plaintiff-Respondent, v. Arick Titus SUNDBERG, Defendant-Appellant.

05102194.

A135487.

Court of Appeals of Oregon.

Argued and Submitted January 21, 2009.

Decided December 30, 2009.

Dennis N. Balske, Portland, argued the cause and filed the brief for appellant.

Janet A. Klapstein, Senior 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 LANDAU, Presiding Judge, and SCHUMAN, Judge, and ORTEGA, Judge.

ORTEGA, J.

Defendant appeals a judgment of conviction for attempted unlawful sexual penetration, ORS 161.405(2)(b); ORS 163.411, and first-degree sexual abuse, ORS 163.427. On appeal, defendant raises assignments of error concerning (1) the exclusion of evidence that K, whom the victim also had accused of sexual abuse, ultimately was acquitted of charges arising from the victim's allegations and (2) the denial of defendant's motion for a new trial, based on claimed irregularities concerning jury selection and courtroom security. We reject defendant's third assignment of error without discussion. Because we conclude that defendant failed to preserve his first assignment of error and that the second is not reviewable, we affirm.

Both of defendant's convictions arose from an incident that occurred one evening when the 10-year-old victim, her mother, and others were visiting defendant. While giving the victim a piggyback ride, in the presence of others, defendant sexually touched her.

We turn to a more detailed examination of the record concerning the evidence regarding K. In a motion in limine, defendant sought to offer evidence of other allegations of sexual misconduct made by the victim and her mother—specifically, evidence that the victim had alleged sexual abuse by her 13-year-old cousin, K, and by her mother's former boyfriend; that the victim's mother had alleged that she herself had been sexually abused by defendant and raped by someone else; and that the victim's mother had alleged (and then recanted the allegation) that the victim's grandfather had abused the victim. Defendant contended that, because he was aware of those allegations, particularly the allegations concerning K, he avoided being alone with the victim's mother and her family and that his awareness of the allegations made it less likely that he would attempt to abuse the victim, especially in front of witnesses. Defendant also argued that the allegations concerning K were relevant to the defense theory that the victim made allegations to get attention from her mother and others. Although defendant noted that the case against K was dismissed at the close of the state's evidence, he did not explicitly seek admission of evidence of K's acquittal. Rather, his motion requested that "evidence of the prior conduct of [the victim's mother and the victim], as described in the above offer of proof, be admitted into evidence at trial."

In a subsequent memorandum, defendant again summarized the allegations that he wished to offer as evidence. That memorandum made no mention of K's acquittal. Defendant argued that the evidence of the allegations by the victim's mother and the victim was relevant to show that defendant and his family were wary of being around the victim's mother and her family and

"to show how unlikely it is that defendant would sexually abuse [the victim], knowing what he did about her and her mother, in the presence of five witnesses.

"Whether the allegations made by [the victim] were true or false does not matter: that they were made is relevant to prove defendant's state of mind at the time he is alleged to have abused [the victim]."

(Emphasis added.)

At a hearing on defendant's motion, the court inquired about the state's intention to offer evidence of the victim's prior statements. That evidence included videotapes of two interviews, one by a police officer and the other by a caseworker with the Department of Human Services (DHS). The prosecutor explained that she did not intend to ask witnesses about the victim's statements concerning K and that she intended either to redact from the videotapes references to K or not to offer the tapes.

In response, defendant contended that the statements concerning K could not be redacted from the interviews containing statements concerning defendant and still "have it make any sense." He took the position that the videotapes would be admissible so long as the victim testified at trial, but "if the statement comes in, I believe that the defendant is entitled to have the whole statement come in and not just have it come in piecemeal * * *."

Defendant went on to argue that the allegations concerning K "are in this case at every turn, and in order to present the defendant's theory of the case, we have to be able to have testimony about them." As defendant explained, his theory was that, because of the victim's and her mother's allegations about K and others, defendant felt that the victim and her mother "were dangerous and to be avoided, you wouldn't want to be alone together, you had to be careful what was going on, and all of this." He argued that the allegations concerning K were relevant

"because we need to show that [defendant] knew about them and was acting in accordance with that knowledge at the time of this incident. That's what's critical for the defense to be able to prove. * * * [I]n a very real sense, it doesn't matter whether the allegation against [K] is true or false. It was made, it was pending at that time, it hadn't been adjudicated yet at the time of this incident."

(Emphasis added.)

The prosecutor responded that evidence regarding other allegations would mislead the jury and confuse the issues and that evidence of the allegations concerning K was inadmissible under OEC 412. In addition, the prosecutor argued, the evidence of the allegations concerning K would "leave the jury without further information as to what did happen, what didn't happen, what was the final outcome, what does the final outcome mean and those kinds of things." The prosecutor contended that evidence of K's acquittal might confuse the jury.

Defendant responded that evidence of other allegations was necessary to show that allegations of sexual misconduct were made frequently throughout the victim's life, so the jury could understand "what might motivate that child." Defendant stated that K was granted the equivalent of a motion for a judgment of acquittal because there was no evidence from which a trier of fact could find guilt beyond a reasonable doubt. Defendant did not argue, however, that the jury would be confused if it did not hear about K's acquittal or that the allegations concerning K were not admissible without evidence of K's acquittal.

At the conclusion of the hearing, the trial court told the parties that it would take under advisement the issue of whether the allegations concerning K were admissible and "a subheading of that as to what extent does the court ruling in [K's case] come into evidence." In a subsequent letter opinion, the court ruled that the allegations concerning K were admissible because, in the videotapes, the allegations concerning K were intertwined with the victim's statements about defendant. The court concluded, however, that evidence of K's acquittal, which occurred after the incident at issue in defendant's case, was irrelevant. The court entered an order in accordance with its letter opinion¹ and "reserve[d] ruling regarding any limiting instructions to a jury depending on the totality of the evidence received during trial."

Defendant offered no further argument regarding the admission of evidence of K's acquittal. At the beginning of the trial, defendant told the court that, so long as the victim took the stand, "[t]here is no objection to the playing of two * * * videotaped statements, one to DHS, one to the Albany police." The videotapes include statements about K. Defendant did not request any limiting instruction relating to the allegations concerning K.

We turn to the record concerning jury selection and courtroom security. On the morning of trial, a number of summoned jurors failed to appear for jury duty, so there were not enough jurors to provide an adequate pool for both defendant's case and another case, which was being tried in Courtroom #5 and involved three codefendants. Because the number of potential jurors needed for the case in Courtroom # 5 was greater than the number needed for defendant's case, the trial judges decided to begin jury selection in Courtroom # 5 first and to delay jury selection in defendant's case to the afternoon. As a result, some of the jurors in the pool for defendant's case had previously gone through voir dire in Courtroom #5.

In the morning, before voir dire in defendant's case, the trial court informed defense counsel that "we use jurors' numbers now instead of names, so * * * you're not gonna hear their names." Defense counsel replied "that's new to me," but raised no objection at that time. After discussion of some other issues, the court was in recess for about five hours.

In the afternoon, after the recess, defense counsel and the trial court discussed the use of an anonymous jury pool. The trial court explained that "we adopted the procedure partly in response to a concern of a number of jurors * * * that did not want their name known to litigants * * *." Defense counsel stated, "I don't have a problem with referring to the jurors by their numbers rather than their names, but I guess what I didn't realize until just a little bit ago here is that we would not even know the names of the jurors." He objected that anonymous voir dire would be difficult:

"I do object to it because it's not just knowledge of the case, it's knowledge of the person that either [defendant] or I might have from their name that we don't have from looking at them. And if w...