State v. Worth

• Decision Date: 30 September 2015
• Docket Number: 060532697,A147948.
• Citation: 274 Or.App. 1,360 P.3d 536
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Joseph WORTH, Jr., Defendant–Appellant.
• Court: Oregon Court of Appeals

274 Or.App. 1

360 P.3d 536

STATE of Oregon, Plaintiff–Respondent,

v.Joseph WORTH, Jr., Defendant–Appellant.

060532697

A147948.

Court of Appeals of Oregon.

Argued and Submitted June 26, 2013.

Decided Sept. 30, 2015.

Laura A. Frikert, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.

David B. Thompson, Assistant Attorney General, argued the cause for respondent. With him on the brief were Mary H. Williams, Deputy Attorney General, and Anna M. Joyce, Solicitor General.

Opinion

HASELTON, C.J.

In this case, which is before us for a second time, following a retrial on remand, State v. Worth,231 Or.App. 69, 218 P.3d 166 (2009), rev. den.,347 Or. 718, 226 P.3d 709 (2010)(Worth I),¹defendant appeals a judgment of conviction for first-degree kidnapping (Counts 1 and 2, merged), first-degree sexual abuse (Counts 4, 5, and 6, merged), first-degree unlawful penetration (Count 7), and second-degree assault (Count 8). Defendant raises diverse contentions, including an assertion that former jeopardy and double jeopardy provisions barred the retrial and convictions, as well as challenges to the denial of his motions for judgment of acquittal (MJOA) on the kidnapping charges, the admission and exclusion of evidence, and the imposition of sentence. For the reasons set out below, we reject all of defendant's assignments of error except for two relating to sentencing. Specifically, we agree with defendant that the trial court erred in calculating consecutive upwards departure sentences without adhering to the sentencing guidelines limitations on the length of those sentences. Accordingly, we affirm defendant's convictions and remand for resentencing, which obviates the need to consider defendant's further contention that the trial court unconstitutionally imposed a greater sentence than defendant had received after the first trial.²

We begin by summarizing the predicate events and material procedural history. Our analysis below recounts additional pertinent facts and circumstances consistently with the standard of review applicable to particular assignments of error.

On the evening of April 14, 2006, the victim, C, who was 17 years old at the time, went to a movie. As C walked home afterwards, she was attacked. Her assailant, who had been lying in wait at a construction site, jumped out onto the sidewalk and grabbed C. After forcing her over to the side of a building, he proceeded to choke her, put a knife to her throat, threaten her if she refused to comply with his demands, and, when she tried to escape, beat her. Her assailant then dragged C approximately eight feet into a porta-potty on the construction site, where he sexually assaulted her.

Afterwards, the assailant bound C's hands and told her not to leave for 10 minutes. Upon C reaching home, her mother immediately called 9–1–1. C then went to the hospital, where she underwent a sexual assault examination, which yielded DNA samples. During a subsequent police interview, C identified defendant as the assailant from a photo array. Defendant was later arrested and in his possession was a pocket knife bearing traces of blood that were consistent with C's DNA. Defendant was charged by indictment with two counts of first-degree kidnapping, ORS 163.235; one count of first-degree rape, ORS 163.375; three counts of first-degree sexual abuse, ORS 163.427; one count of first-degree unlawful sexual penetration, ORS 163.411; and one count of second-degree assault, ORS 163.175.³

Defendant's first trial occurred in February 2007. As noted above, during closing argument, the prosecutor made several improper comments about the presumption of innocence. Defense counsel objected and moved for a mistrial, but the trial court overruled those objections in material part, and denied a mistrial. See Worth I,231 Or.App. at 72–74, 218 P.3d 166. The jury found defendant guilty of all charges except first-degree rape, id.at 74, 218 P.3d 166, and the court sentenced defendant to a total term of imprisonment of 485 months.⁴

On appeal in Worth I,we reversed and remanded the convictions resulting from the first trial. We held that the comments by the prosecutor during closing argument that misrepresented the presumption of innocence, paired with the trial court's overruling of defense objections and failure to give a curative instruction, created such a potential for jury confusion “about whether the presumption of innocence extended through jury deliberations” as to deny defendant a fair trial. Id.at 77–79, 218 P.3d 166.

The proceedings and rulings that are the subject of this (second) appeal ensued. Specifically, following remand, defendant moved to dismiss the state's case on state former jeopardy and federal double jeopardy grounds, arguing that the prosecutor's improper closing argument in the first trial constituted preclusive prosecutorial misconduct. The trial court denied that motion. Before trial, defendant moved, unsuccessfully, to exclude evidence that, as defendant was leaving the courtroom following his original sentencing, he said, “I should have just killed the bitch.” Defendant also unsuccessfully moved during trial to preclude the admission of inculpatory DNA evidence from the sexual assault examination, arguing that the state had failed to establish the requisite foundation for the predicate DNA identification technique. Finally, defendant sought, and the trial court denied, judgments of acquittal on the two kidnapping charges.

The jury found defendant guilty of first-degree kidnapping (Counts 1 and 2), first-degree sexual abuse (Counts 4, 5, and 6), first-degree unlawful penetration (Count 7), and second-degree assault (Count 8).⁵The jury also found various sentencing enhancement facts and dangerous offender criteria on each charge.

In the sentencing hearing following the second trial, the parties disputed a variety of issues, including, as amplified below, the applicability of the sentencing guidelines “shift-to-I,” “200%,” and “400%” rules. Defendant also contended that, as a matter of due process, the court could not impose a sentence exceeding that originally imposed before defendant's initial, successful appeal. Ultimately, the trial court entered a judgment of conviction that (1) merged Count 2 with Count 1, yielding a single conviction for first-degree kidnapping, (2) merged Counts 5 and 6 with Count 4, yielding a single conviction for first-degree sexual abuse, and (3) included separate convictions as to Count 7 and Count 8. Based on the jury's findings of the requisite criteria, the trial court opted to sentence defendant as a “dangerous offender” pursuant to ORS 161.725and related statutes, discussed below, thereby imposing consecutive indeterminate dangerous offender 30–year sentences on each conviction, for a total of 120 years (1,440 months). Denying all forms of early release and sentence reduction, the trial court imposed consecutive determinate sentences—that is, the minimum possible term of imprisonment—of 240 months on Count 1, 90 months on Count 4, 144 months on Count 7, and 120 months on Count 8, resulting in a minimum incarceration term of 594 months, exceeding the 485 months imposed in the original sentencing.

On appeal, defendant assigns error to (1) the denial of the motion to dismiss on former jeopardy and double jeopardy grounds; (2) the admission of his statement following the original imposition of sentence; (3) the admission of the DNA evidence; (4)-(5) the denial of the MJOAs on the kidnapping charges; (6) the imposition of a sentence allegedly in violation of applicable nonconstitutional limitations (e.g.,guidelines rules); (7) the imposition of a greater sentence on remand, following a successful appeal, than was originally imposed; and, supplementally, (8) the imposition of departure sentences.

A. Former Jeopardy /Double Jeopardy

We begin with the potentially dispositive issue of whether defendant's reprosecution was barred by former jeopardy under Article I, section 12, of the Oregon Constitution, or by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.⁶

As noted, in defendant's initial trial, the prosecutor, Mascal, made several inappropriate comments in closing argument that provoked the motion for mistrial that we held in Worth Ishould have been granted. Specifically, we held those comments misstated the presumption of innocence by suggesting that it “evaporate[s] when the evidence is closed,” when, in fact, the presumption “extended through jury deliberations.” Worth I,231 Or.App. at 76, 79, 218 P.3d 166. Defendant predicated his motion on three comments by Mascal, which we identified in Worth I:

(1) “I want to thank you for your time and attention over the past few days in listening to this case, this criminal case against this man, who now does not sit before you presumed innocent. He sits before you—”

(2) “But for a few more minutes, sits before you presumed innocent, until you shut that door and start deciding the facts of this case and how the law applies to the facts of that case.”

(3) “When that door shuts, when you sit down and you take your initial vote, the presumption of innocence is over.”

Id.at 72–73, 76, 218 P.3d 166.

In seeking dismissal on former jeopardy and double jeopardy grounds, defendant contended that Mascal had been aware of the impropriety of those comments and that she had intentionally provoked a mistrial, or that she did so recklessly or with gross negligence.

Mascal's testimony at the hearing on the motion to dismiss contradicted those allegations. Mascal testified that, at the time of closing argument, she thought that her comments were not problematic and that she had made similar comments about the presumption of innocence without repercussion in “many, many prior trials.”

In denying the motion to dismiss, the trial court credited that testimony:

“I find based on the evidence before me today, Ms. Mascal did not

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