State v. Garcia-Rocio

EGAN, J. Defendant appeals a judgment of conviction for one count of first-degree rape, ORS 163.375; two counts of first-degree sexual abuse, ORS 163.427; and one count of first-degree sodomy, ORS 163.405. The charges stemmed from defendant’s daughter’s allegation that defendant raped and sexually abused her during a brief period between 1995 and 1996. Defendant assigns error to the trial court’s admission of three portions of a video-recorded interview of defendant by detectives in which defendant was questioned about sexual abuse allegations made by the victim against defendant’s brother. Defendant argues that the trial court erred because it admitted the three interview portions without making a record demonstrating that it had engaged in the conscious process of OEC 4031 balancing, as defendant had requested and as required by State v. Mayfield, 302 Or 631, 733 P2d 438 (1987). Under the totality of the circumstances, we conclude that the trial court failed to demonstrate that it admitted the interview portions after consciously engaging in the OEC 403 balancing process required by Mayfield. Consequently, the court erred as a matter of law. We also conclude that the error was not harmless. Accordingly, we reverse and remand. We “examine whether the trial court properly applied the balancing test that OEC 403 prescribes for errors of law, [and] we review the trial court’s ultimate determination as to whether evidence is unfairly prejudicial under OEC 403 for abuse of discretion.” State v. Shaw, 338 Or 586, 614-15, 113 P3d 898 (2005). The victim, defendant’s daughter, who was 26 years old at the time of trial, accused defendant of sexually abusing her and raping her three times when she was approximately eight years old. At that time, the victim lived in a two-bedroom apartment with her parents, her five siblings, and her uncle. The victim testified that the abuse took place in the bedroom that the victim shared with her whole family, excluding her uncle, and began after she saw defendant — 138 — touch the vaginal area of her older sister, A. All of the abuse took place at night or early in the morning when the bedroom that the family shared was dark and everyone was sleeping, except for the victim’s mother, who was sometimes in the kitchen. According to the victim, defendant stopped abusing her after she began menstruating. Shortly thereafter, her uncle sexually abused and raped her when she and her sisters had begun sleeping together in a smaller room of the apartment, separate from the rest of the family. Her uncle admitted to police that he had sexually abused the victim and some of her siblings. The victim also testified that, on two occasions, she heard A tell their mother that defendant had sexually abused A. She said that their mother responded that it was not defendant but their uncle who had done it. A, who is one year older than the victim, testified that it was their uncle who would enter the family’s shared bedroom while they slept. She testified that she told her mother at the time that their uncle would come into the room. But it was not until years later that she told her mother that their uncle sexually abused her and that she saw him touch her siblings, including the victim, when he entered the bedroom. A testified that defendant never sexually abused her and that she never saw him sexually abuse any of her siblings. The victim’s oldest sister, J, who is 10 years older than the victim, also testified that she saw their uncle come into the family’s shared bedroom while the family slept. The victim’s mother testified that she did not remember or know anything about her children being sexually abused. After the police had begun investigating the victim’s allegations, they arranged for the victim to make a pretext call to defendant, which was recorded.2 During that call, defendant did not admit to sexually touching or raping the victim, and he repeatedly denied her accusations of sexual abuse and rape, calling them lies. — 139 — Soon after the pretext call, Detective Anderson interviewed defendant at a police station. The interview was video recorded and conducted with the assistance of an interpreter. Portions of the interview were played at trial, three of which are the subjects of defendant’s appeal. Before Anderson questioned defendant about the victim’s allegations against him, he questioned defendant about the victim’s allegations that her uncle, defendant’s brother, had also sexually abused her as a child. Anderson informed defendant that he had arrested defendant’s brother and that his brother had admitted to sexually abusing the victim. Anderson told defendant that he was going to ask defendant about the family’s sleeping arrangements at the time of the abuse. During defendant’s response to that prompt, in which he said that he remembered where people slept, the interpreter consulted with defendant about a word that defendant had said that the interpreter did not understand, and then she said, “It’s something along the—like you guys are accusing him of stuff without having any proof.” Defendant said that he did not know anything about the alleged sexual abuse by his brother because he worked seven days a week. Anderson told defendant that the victim and his brother had both said that his brother sexually abused the victim and asked defendant if that was “enough.” Defendant responded, “I didn’t know anything about that until now. * * * I can’t fault somebody without having any proof.” He then added, “Well, I say if she says and he admitted it, what can you do?” Later, Anderson said, “[Your brother] did what he told me he did. You don’t believe it?” Defendant responded, “No.” Anderson then told defendant that the victim accused him of sexually abusing and raping her and said that defendant’s laughter in response to that statement was “kind of an unusual reaction.” Defendant asked if the detective wanted him to get mad. The detective replied, “Your daughter said you raped her.” And defendant responded, “Well, no.” Before trial, defendant sought to exclude three portions of the recorded police interview in which Anderson and defendant discussed defendant’s brother. At the pretrial — 140 — hearing discussing the admissibility of the disputed portions of the interview, defendant argued that the portions should be excluded because they were not relevant under OEC 401 and because their probative value was outweighed by their unfair prejudicial effect. The three interview portions under dispute were played separately for the court, and the parties argued the admissibility of each interview portion after it was played. Defendant argued as to the first interview portion: “[T]his portion of the tape relates to [defendant] being asked questions about whether or not he essentially believed that there’s sufficient evidence against [the] uncle to convict him. I don’t think that’s relevant, even if the Court finds that that’s relevant, what [defendant’s] opinions are on [defendant’s brother’s] guilt—we believe that’s absolutely more prejudicial than probative for that to be played in front of the jury.” Defendant also argued: “If the Court does find that it’s relevant, we’re asking that under [OEC 403], that the Court do the balancing test and rule that this is obviously more prejudicial than probative. “For the jury to hear this type of statement from my client regarding whether or not he believes that law enforcement has sufficient proof against his brother with regard to sex abuse against children in the household, we think that’s far more prejudicial than probative, and allows the jury to draw inferences that he’s just a plain bad person and didn’t protect the children, and allowed abuse to occur in his home. And whether or not that’s probative of his guilt or innocence in this case—it just is not for the jury to hear.” Defendant had also objected to the admission of the first interview portion on Miranda grounds. The trial court addressed only defendant’s Miranda argument when it explained its decision to admit the first portion of the interview. The trial court did not mention the probative value of the interview portions or their possible unfair prejudicial effects. After the second interview portion was played for the court, defendant objected on two of the same grounds — 141 — as the first portion: “that it’s not relevant as to [defendant’s] guilt * * *, and it’s also—if the Court finds that it’s relevant, our position is it’s more prejudicial than probative for the jury to hear that information.” The trial court responded simply, “I’m going to allow those statements.” And, after the trial court viewed the third disputed portion of the interview, defendant briefly reiterated his previous objections against the evidence, arguing, “We believe that it’s not relevant to [defendant’s] guilt or innocence, and we believe that it’s more prejudicial than probative.” The trial court admitted the third portion of the interview, stating only, “All right, I’m going to allow those statements in.” All three portions of the interview were played for the jury. During the trial, after the state rested, the state requested the court to dismiss one count of rape and two counts of sexual abuse, which the court did. The state proceeded only on the four counts on which defendant was ultimately convicted. On appeal, defendant argues that the trial court erred in admitting the interview portions because it failed to make a record demonstrating that it had balanced the probative value of the portions against their unfair prejudicial effect after defendant had objected to their admission and requested that the trial court conduct OEC 403 balancing.3 The state counters that defendant did not preserve that argument because defendant did not tell the trial court that it was required to make such a record after the trial court had ruled to admit the evidence. The state also argues that the trial court properly admitted the interview portions because they were not unduly prejudicial. First, we recently rejected the state’s similar lack-of-preservation argument in State v. Anderson, 282 Or App — 142 — 24, 28 n 3, 386 P3d 154 (2016), and we reject the state’s argument here for the same reasons. Next, as to the merits of the argument, we conclude that the trial court erred by admitting the disputed interview portions without making a record that it had engaged in OEC 403 balancing, which defendant had requested the court to conduct. A trial court errs as a matter of law if it fails to conduct OEC 403 balancing when requested to do so or if it fails to make a record that reflects that the court has conducted the requested OEC 403 balancing. Mayfield, 302 Or at 645. In Mayfield, the Supreme Court set out an “approved method of analysis that should guide trial courts in their decision-making under OEC 403.” State v. Borck, 230 Or App 619, 637, 216 P3d 915, adh’d to as modified on recons, 232 Or App 266, 221 P3d 749 (2009), rev den, 348 Or 291 (2010) (internal quotation marks omitted). That method includes four steps: (1) “analyze the quantum of probative value of the evidence and consider the weight or strength of the evidence”; (2) “determine how prejudicial the evidence is, to what extent the evidence may distract the jury from the central question whether the defendant committed the charged crime”; (3) balance the prosecution’s need for the evidence against the prejudicial danger of unfair prejudice; and (4) make a ruling to admit some, all, or none of the proponent’s evidence. Mayfield, 302 Or at 645. A trial court need not expressly follow the Mayfield four-step analysis as long as “the record establishes that, in deciding to admit [the evidence], the trial court considered the matters prescribed in Mayfield”. Borck, 230 Or App at 637. Consequently, we review whether the “‘totality of the attendant circumstances indicate that the court * * * engage [d] in the conscious process of balancing the costs of the evidence against its benefits that Mayfield requires.’” State v. Conrad, 280 Or App 325, 331, 381 P3d 880 (2016), rev den, 360 Or 851 (2017) (quoting Borck, 230 Or App at 638). In Conrad, we held that the record demonstrated that the trial court had engaged in OEC 403 balancing despite the fact that the trial court failed to explicitly make a record of its balancing process. 280 Or App at 331. In that — 143 — case, the defendant had filed a pretrial motion in limine to exclude a video-recorded interview of two child victims of sexual abuse. Id. In the motion, the defendant argued that the recorded interviews had low probative value because they were not conducted under oath and because “the victims’ answers were elicited by interviewers.” Id. The defendant’s motion further argued that the videos were unfairly prejudicial because the jury would place undue emphasis on them if they were admitted into evidence. Id. The trial court held a hearing specifically to address the defendant’s motion to exclude the videos on defendant’s OEC 403 argument. Id. The trial court stated that it had the defendant’s written motion before it and invited additional argument. Id. The defendant essentially restated his written argument, and the state contended that the videos were not more prejudicial than probative. Id. The trial court denied the defendant’s motion by stating, “So that motion is denied.” Id. (ellipsis omitted). We determined that Conrad presented “the rare case where, despite a very thin record encompassing the trial court’s decision to deny defendant’s OEC 403 objection, we are satisfied that the court implicitly balanced the ‘costs of the evidence against its benefits’ as is required by Mayfield”. Id. at 332. Thus, we concluded that, under those circumstances, the record showed that the trial court had understood the defendant’s objection in the written motion and had engaged in the balancing that Mayfield requires. Id. at 331-32. In this case, the circumstances are not such that we can say that the trial court made a record that it engaged in the conscious process of OEC 403 balancing to arrive at its decision to admit the interview portions. In Conrad, the question before the trial court was a narrow one that had been argued in writing, acknowledged by the court, and remained the same during the defendant’s oral argument. Here, however, the record shows that the trial court had no written argument from defendant about his objections to the admission of the interview portions and that the trial court provided no indication that it had engaged in a conscious processing of defendant’s OEC 403 argument. The state’s trial memorandum anticipated only that defendant would object — 144 — to the admission of the interview portions at the pretrial hearing on relevancy and Miranda grounds. Additionally, the trial court here was asked to rule on the admissibility of the interview portions in light of defendant’s three arguments against the admission of the first portion and two arguments against the second and third portions. In admitting the interview portions, the trial court responded only to defendant’s Miranda objection to the first interview portion and at no point did the trial court mention the probative value of any of the interview portions or the possible unfair prejudicial effect they might have. Because the trial court did not have time before the hearing to consider defendant’s OEC 403 objections, defendant made more than one narrow argument, and the trial court did not refer to any OEC 403 factor in its ruling, we cannot see from the record that the trial court engaged in the conscious balancing it was required to perform. The only basis to believe that the trial court did engage in OEC 403 balancing is to presume that it had done so solely because the trial court was asked to conduct balancing. The dissent believes that the appearance of balancing is enough. In Conrad, however, we explained: “[A]lthough Mayfield is a ‘matter of substance, not form or litany,’ that ‘substance’ is best expressed in the form set out in Mayfield. That is, given that we review a court’s decision under OEC 403 for an abuse of discretion, we can conduct meaningful review only when we can tell that the court exercised its discretion and how it did so. That is the point of Mayfield. Obviously, the best way for the trial court to fulfill the ‘substance’ of Mayfield is to articulate on the record, in the manner set forth in Mayfield, how it is exercising its discretion. In many cases, the failure to do so will preclude meaningful appellate review, which, among other things, can severely frustrate judicial efficiency.” 280 Or App at 331-32 (emphasis in original). Although a trial court is not required to make an explicit record of its thoughts about each of the four OEC 403 balancing analysis steps laid out in Mayfield, the record must indicate that the trial court considered the substance of those four steps and “engage [d] in the conscious process of balancing the costs of the evidence against its benefits.” Id. at 331. — 145 — The dissent ignores that a trial court errs as a matter of law if it fails to conduct OEC 403 balancing when it is requested or if it fails to make a record that reflects that the court has conducted the requested OEC 403 balancing. The dissent’s position would allow us to disregard on review any question other than whether it appears from the record that the trial court was asked to conduct balancing and the trial court’s response did not explicitly state that the trial court had chosen to ignore the request. Indeed, the dissent goes to great lengths to argue that the trial court engaged in balancing on the grounds that the trial court did not explicitly state that it was not required to conduct balancing and because the trial court rejected a fourth portion of the video interview. The trial court responded to defendant’s relevance and OEC 403 arguments for exclusion of that portion by stating, “I’m going to side with [defense counsel] on this. I think it brings in a different topic, and so that’s going to be excluded.” We cannot tell from that statement whether the trial court excluded the fourth portion because it was not relevant or because the danger of unfair prejudice substantially outweighed its probative value. Furthermore, we do not agree with the dissent that that ruling confirms that the trial court had also consciously engaged in the OEC 403 balancing of the previous three video portions. The mere fact that defendant asked the trial court to conduct balancing is not enough to demonstrate that the trial court engaged in a conscious process of OEC 403 balancing. If we were to conclude that the trial court had conducted a conscious balancing process based on the circumstances we are presented with on the record here, the Mayfield requirement would be made meaningless. The trial court must make a record that reflects an exercise of discretion because, “given that we review a court’s decision under OEC 403 for an abuse of discretion, we can conduct meaningful review only when we can tell that the court exercised its discretion and how it did so.” Conrad, 280 Or App at 331. We cannot presume that the trial court consciously conducted OEC 403 balancing whenever the record shows that it was asked to do so and that the court provided — 146 — a ruling on the motion to exclude; we must be able to discern from the record that the court has engaged in OEC 403 balancing. Because the trial court failed to make a record that reflects that it engaged in the requested OEC 403 balancing as Mayfield requires, the trial court erred. Finally, we reject the state’s assertion that any error in admitting the interview portions was harmless because the evidence against defendant was substantial. We will affirm a judgment of conviction despite the error if there is “little likelihood that the particular error affected the verdict.” State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). The focus of our inquiry “is on the possible influence of the error on the verdict rendered.” Id. Here, the central issue for the jury was a credibility contest between the victim and defendant. The events had taken place roughly 17 years before the trial, there were no other witnesses to or physical evidence of the acts alleged, the witnesses contradicted each other, and the memories of the witnesses were not unassailable. The jury could have viewed defendant’s words as defending his brother, failing to protect his daughter, or as a way to discredit the victim who was also accusing him. Whatever its precise effect on the jury, the evidence was likely to have improperly colored the jury’s feelings about defendant. See Mayfield, 302 Or at 644 (“Evidence is prejudicial under OEC 403 if it tempts the jury to decide the case on an improper basis,” such as the belief that the defendant is a bad person). The admission of the interview portions could have affected the jury’s verdict. Had the trial court conducted the balancing that it was requested and required to do, the trial court could have concluded that the danger of unfair prejudice to defendant by the interview portions substantially outweighed their probative effect to prove defendant’s guilt. Thus, the trial court’s error in admitting the evidence without making a record that it conducted OEC 403 balancing was not harmless. Reversed and remanded. Footnotes [1] As relevant, OEC 403 provides, “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice ***.” [2] Defendant speaks Spanish. All of his statements are translations from his spoken Spanish into English. A translated transcript of the pretext call was admitted, in full, at trial. [3] Defendant also argues that the trial court erred by not concluding that the unfair prejudice of the three interview portions substantially outweighed their probative value as a matter of law. But because we conclude that the trial court erred by failing to make a record that it engaged in the conscious process of balancing the probative value of the evidence against its unfair prejudicial effect that Mayfield requires, we do not reach the issue of whether the trial court’s decision was one that was within the range of legally correct outcomes. Additionally, we reject without discussion defendant’s argument that the trial court erred because the evidence was not relevant.