Youngblood v. Sullivan

• Decision Date: 28 July 1981
• Docket Number: No. 111293,111293
• Citation: 52 Or.App. 173,628 P.2d 400
• Parties: Ray Charles YOUNGBLOOD, Respondent, v. G. E. SULLIVAN, Superintendent, Oregon State Correctional Institution, Appellant. ; CA 19512.
• Court: Oregon Court of Appeals

Page 400

628 P.2d 400

52 Or.App. 173

Ray Charles YOUNGBLOOD, Respondent, v. G. E. SULLIVAN, Superintendent, Oregon State Correctional

Institution, Appellant.

No. 111293; CA 19512.

Court of Appeals of Oregon.

Argued and Submitted March 16, 1981.

Decided May 11, 1981.

Review Denied July 28, 1981.

Brenda J. Peterson, Certified Law Student, Salem, argued the cause for appellant. With her on the brief were Dave Frohnmayer, Atty. Gen., John McCulloch, Jr., Sol. Gen., William F. Gary, Deputy Sol. Gen., and Scott McAlister, Asst. Atty. Gen., Salem.

Vance M. Wolfe, Salem, argued the cause and filed the brief for respondent.

Before GILLETTE, P. J., and ROBERTS and YOUNG, JJ.

ROBERTS, Judge.

Defendant was convicted of rape in the first degree and sodomy in the first degree. Through inadvertence the state public defender's office, which had agreed to file a notice of appeal in defendant's case, failed to do so in a timely manner. Defendant therefore brought this post-conviction proceeding pursuant to ORS 138.510. Defendant raised the arguments he would have asserted on appeal, i. e., that the admission of "other crimes" testimony by a female witness other than the victim was so prejudicial as to deny him a fair trial. At his original trial the court found that the probative value of the evidence outweighed the prejudice to the defendant. The court in the post-conviction hearing found that defendant was denied a fair trial because the prejudicial nature of the evidence outweighed its probative value, reversed the convictions and remanded the case for a new trial. We reverse.

The procedural posture of this case is somewhat irregular. We infer from the holding of the post-conviction court, since there was no record made of the post-conviction hearing, that defendant's argument there was based on the evidentiary question. His proper method of proceeding at post-conviction would have been to claim ineffective assistance of counsel on appeal as a denial of his right to the due process of law guaranteed him by the Fourteenth Amendment to the United States Constitution. The post-conviction court might then properly have ordered a delayed appeal pursuant to ORS 138.520. Shipman v. Gladden, 253 Or. 192, 453 P.2d 921 (1969); Welch v. Gladden, 253 Or. 228, 453 P.2d 907 (1969). The Supreme Court, in Shipman, declared the failure of counsel to file a notice of appeal, after agreeing to, was incompetence as a matter of law and a denial of due process. 253 Or. at 203, 453 P.2d 921. There is in the record an affidavit from defendant's counsel on appeal confessing inadvertent failure to file a timely notice of appeal. Therefore, to avoid elevating form over substance, we consider defendant's claim as an ordered delayed appeal under ORS 138.520. The record of the trial court is before us, and the state acceded to this posture of the case at oral argument on appeal. The sole issue for our consideration is whether the admission of the evidence concerning a similar prior crime denied defendant a fair trial.

Because the details of the crime are at issue, we discuss the facts at some length. Defendant was convicted of committing first degree rape and first degree sodomy in an incident in Woodlawn Park in Portland. The victim testified that while she was walking through the park at about 1 p. m., defendant grabbed her from behind by the neck and threw her to the ground. He then walked her to the men's restroom in the park and into a restroom stall where, with her sitting on the toilet seat, he forced her to commit oral sodomy on him until he climaxed. Then, while she was still sitting on the toilet seat, defendant raped her. Afterwards, he walked her back outside and allowed her to leave. Defendant testified in his own behalf and maintained that the victim had not only consented to the sexual acts involved, but had initiated the encounter. He testified no force had been used.

On rebuttal, the state called another female witness who testified that about a month prior to the attack on the victim in this case, she had been attacked by defendant in a similar fashion in another Portland city park. This witness testified that at about 11 a. m. on the day of the attack she was at Duniway Park in Portland. She said she went into the women's restroom to change her clothes before a soccer match. While she was in one of the stalls, a man she identified at the trial as defendant ran into the restroom, climbed under the partition into the stall, grabbed her, threatened her and raped her. She testified at length as to the details of the crime: that defendant first performed oral sodomy on her while she was seated on the toilet seat, then raped her while she was seated and then, while she was still in a sitting position, forced her to perform oral sodomy on him until he climaxed.

It is a general rule that evidence of other crimes committed by the defendant is not admissible to prove commission of a subsequent crime. State v. Manrique, 271 Or. 201, 531 P.2d 239 (1975); State v. Gardner, 225 Or. 376, 358 P.2d 557 (1961); State v. Long, 195 Or. 81, 244 P.2d 1033 (1952); State v. Casey, 108 Or. 386, 213 P. 771, 217 P. 632 (1923). This is so even though the crime charged and the other unrelated crimes are similar. State v. Pace, 187 Or. 498, 212 P.2d 755 (1949). This rule tends to be strictly applied in cases of sexual crimes because of the particularly inflammatory nature of such evidence. State v. Urlacher, 42 Or.App. 141, 144, 600 P.2d 445 (1979); State v. Sicks, 33 Or.App. 435, 438, 576 P.2d 834 (1978). Thus the Supreme Court in Pace, a case in which the defendant was accused of the rape of his daughter, held it was improper to admit evidence that defendant had previously had "sexual intercourse with two of his other minor daughters," stating the rule in sex crime cases to be " * * * that it is error to...