Kevin Wayne Anderson v. Mitch Morrow, Superintendent, Oregon State Correctional Institution

371 F.3d 1027, 2004 U.S. App. LEXIS 11154, 2004 WL 1238071

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 7, 2004
• Docket: 02-35675
• Status: Published

Opinions

GOODWIN, Circuit Judge:

Kevin Anderson was convicted in 1993 of first-degree rape and sodomy under Oregon laws that prohibit having sexual intercourse with a person “incapable of consent by reason of mental defect.” Or.Rev.Stat. §§ 163.375, 163.405 (the “sex crimes statutes”). He appeals the denial of his petition for a writ of habeas corpus brought under 28 U.S.C. § 2254. He urges two points: (1) the trial court unconstitutionally excluded evidence of the victim’s sexual history and reputation under Oregon’s rape shield law; (2) the State of Oregon convicted him under an unconstitutionally vague statute. Neither point has merit, and we affirm.

I. Background

The facts of the case were largely undisputed at trial. The victim (hereinafter “JH”) is a 28 year-old moderately retarded woman. Psychiatric evaluators have placed her level of emotional maturity at the six- to eight-year-old level; her communication skills at the five- to seven-year-old level; her adaptive functioning level in the “severely retarded range”; and her overall intellectual functioning level in the “moderately retarded range.” Her hearing, vision, and speech are impaired.

In the past, JH had had two steady relationships with men that involved some sexual activity. Anderson testified that he had seen JH dancing “suggestively” with men at bars. He had noticed that JH had difficulty speaking and surmised “that maybe her tongue was missing or some part of her tongue.” Anderson further testified that the sexual encounter at issue here was not their first; he stated that JH had initiated sexual intercourse on one pri- or occasion. Anderson claimed that the second sexual encounter, which resulted in his arrest and conviction and this appeal, was consensual, and that JH again initiated intercourse.

Before trial, Anderson filed a motion to offer evidence of JH’s sexual history and reputation to rebut the State’s allegation that by reason of mental defect she was incapable of consenting to sexual intercourse. The evidence consisted primarily of statements from various individuals describing her sexual history, purported promiscuity, and public displays of sexual acts. The trial court allowed some evidence of JH’s sexual history (specifically her sexual activity with former boyfriends and the previous encounter with Anderson), but excluded reputation testimony and observations of her behavior that failed to shed light on her ability to consent or Anderson’s perception of her ability to consent.

The jury convicted Anderson, and he appealed to the Oregon Court of Appeals, challenging the evidence exclusion and arguing that the sex crimes statutes were unconstitutionally vague. The Court of Appeals rejected Anderson’s evidence argument and refused to rule on the vagueness claim. The Oregon Supreme Court denied review. Anderson’s petition for post-conviction relief at the state level was unsuccessful, as was his federal habeas petition at the district court.

II. ■ Discussion

A. Evidentiary Rulings

Anderson challenges as constitutionally flawed the trial court’s exclusion of graphic evidence of JH’s sexual history. Oregon Evidence Rule 412 states that evidence of the past sexual behavior of an alleged victim such crime is not admissible unless it (a) relates to the motive or bias of the alleged victim; (b) is necessary to rebut or explain scientific or medical evidence offered by the state; or (c) is otherwise constitutionally required. Or.Rev.Stat. § 40.210, (2)(b).

Taking this rule into account, the trial court admitted evidence of JH’s sexual activity with at least two other men, her previous sexual encounter with Anderson, and testimony of witnesses who described her public acts of seductive behavior. The court excluded the following: testimony that JH was a “cat in heat”; reports from a counselor who worked with JH “to try to resolve problems with her sexuality”; testimony from her former boyfriend who described her sexual drive as “excessive”; testimony from two community members recounting how they witnessed JH rubbing her body against men, grabbing their crotches, and picking up men on street corners.

The trial court exercised proper discretion in limiting the more defamatory evidence. In Michigan v. Lucas, 500 U.S. 145, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991), the Supreme Court held that the right to present relevant testimony ... may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Id. at 149, 111 S.Ct. 1743 (internal quotation marks and citations omitted). A state passing a rape shield law makes a “valid legislative determination that rape victims deserve heightened protection against surprise, harassment, and unnecessary invasions of privacy.” (Wood v. Alaska, 957 F.2d 1544, 1552 (9th Cir.1992) (quoting Lucas, 500 U.S. at 150, 111 S.Ct. 1743)).

Here, the court admitted evidence of JH’s prior sexual experience, testimony that she received sexual counseling, and other testimony regarding her public displays of sexual affection. It refused to admit evidence of a more demeaning nature that characterized JH as a wanton and promiscuous woman. The court’s evi-dentiary rulings properly balanced Anderson’s right to inform the jury of JH’s past sexual activity (evidence that was relevant to his affirmative defense and to JH’s ability to consent) against the importance of protecting her from unnecessary invasions of privacy.

B. Statutory Vagueness Claim

1. Procedural Default

In addition to his evidentiary claim, Anderson argues on appeal that he was prosecuted under unconstitutionally vague criminal statutes. Because Anderson did not raise this claim at trial, the district court ruled the claim procedurally defaulted under Palmer v. State of Oregon, 318 Or. 352, 867 P.2d 1368 (1994) (hereinafter “Palmer II”), and did not rule on its merits. “[T]o constitute adequate and independent grounds sufficient to support a finding of procedural default, a state rule must be clear, consistently applied, and well-established at the time of petitioner’s purported default.” Lambright v. Stewart, 241 F.3d 1201, 1203 (9th Cir.2001) (emphasis in original) (citations omitted).

Under Oregon’s post-conviction statute, a defendant’s failure to raise a matter at trial “shall not affect the availability of [post-conviction] relief.” Or.Rev.Stat. § 138.550(1). In Palmer II, the Oregon Supreme Court interpreted this statute to mean that a defendant could not raise an issue during post-conviction proceedings that was not raised at trial, unless the defendant also asserted an inadequate assistance of counsel claim. See 318 Or. at 354, 867 P.2d 1368. Although Palmer II is the prevailing law in Oregon and we do not question its current validity, it does not apply to bar claims in this appeal.

The district court’s ruling was in error. Anderson’s purported default occurred before the state supreme court decided Palmer II. At the time of Anderson’s purported default, Palmer v. State of Oregon, 121 Or.App. 377, 854 P.2d 955 (1993) (herein-after “Palmer I ”), was controlling law. In that case, the Oregon Court of Appeals held that:

Nothing in [the post-conviction statute] requires petitioner to establish that trial or appellate counsel were inadequate in order to raise a constitutional challenge to the criminal statute for the first time in post-conviction proceedings.

Palmer I, 121 Or.App. at 383-84, 854 P.2d 955. The Oregon Supreme Court later reversed this decision in Palmer II but only after Anderson’s trial.

The respondent urges this court to hold that at the time of Anderson’s trial, the prevailing, established rule was that a defendant could not raise an issue during post-conviction proceedings that he did not raise at trial. The respondent’s argument fails. The holding in Palmer I indicates the rule was not clear or consistently applied. Although the Oregon Supreme Court had issued a holding similar to Palmer II in North v. Cupp, 254 Or. 451, 461 P.2d 271 (1969), the North holding was unevenly applied. Cases cited by the respondent to prove that the North and Palmer II rule was well-established at the time of Anderson’s trial are not on point. See Ailes v. Portland Meadows, Inc., 312 Or. 376, 382, 823 P.2d 956 (1991) (stating that a district court has discretion to review unpreserved errors but must articulate its reasons for doing so); Reynolds v. Cupp, 71 Or.App. 571, 692 P.2d 648 (1984) (holding that an issue that was not and could not reasonably have been raised on direct appeal could not form the basis of post-conviction relief).

We hold that Anderson’s vagueness claim is not procedurally defaulted, and we now turn to its merits.

2. Statutory Defect

“A statute is void for vagueness if it fails to ‘define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary or discriminatory enforcement.’ ” Free Speech Coalition v. Reno, 198 F.3d 1083, 1095 (9th Cir.1999) (quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983)); see Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). Anderson contends that the statutes under which he was prosecuted are unconstitutionally vague because they fail both to provide fair notice of the prohibited conduct and to prevent arbitrary and discriminatory enforcement.

a. Notice Test

The notice test of vagueness looks at the “very words” of the statute in question to determine whether the statutory language is “sufficiently precise to provide comprehensible notice” of the prohibited conduct. United States v. Vasarajs, 908 F.2d 443, 448 (9th Cir.1990). The ordinary person must understand what conduct is prohibited; he must not be “left guessing about what is prohibited and what is not.” Free Speech Coalition, 198 F.3d at 1095.

Anderson bases his notice argument on his belief that JH consented to sexual intercourse. Anderson claims that he had no reason to believe his consensual acts with JH were illegal because he observed her appearing “real loose” and “quite experienced” on previous occasions. Anderson’s mistaken evaluation of JH’s ability to consent to sexual intercourse has no bearing on whether Oregon’s sex crimes statute is vague and thus unconstitutional. The sex crimes statute is clear on what it prohibits: sexual intercourse with a person “incapable of consent by reason of mental defect.” Or.Rev.Stat. §§ 163.375,163.405.

The proper place for Anderson’s scien-ter argument was at trial, in the form of an affirmative defense. See State v. Phelps, 141 Or.App. 555, 920 P.2d 1098, 1100 (Ct.App.1996). Anderson raised this defense and the jury rejected it. His attempt to revive it here does not aid his vagueness challenge.

b. Arbitrary Enforcement Test

A statute is vague if it does not provide explicit standards to those who apply them, so as to avoid arbitrary and discriminatory enforcement. United States v. Harris, 185 F.3d 999, 1004 (9th Cir.1999). Anderson contends that Oregon’s sex crimes statutes are so vague that they permit arbitrary enforcement by police officers, prosecutors, and fact-finders. The statute is not vague. It gives law enforcement officials clear standards on conduct that must be prosecuted.

Anderson does not argue that the language of the statute lacks precision or definiteness in a way that “allows law enforcement officials to exercise their discretion.” Free Speech Coalition, 198 F.3d at 1095. Instead, he claims that the State arbitrarily chose to prosecute him alone, and none of JH’s other sexual partners. Anderson’s argument relied in part on statements made by the prosecutor during an evidentiary hearing. The prosecutor described limited circumstances under which the State might not prosecute an individual for having sexual intercourse with JH — for example, a healthy, long-term relationship condoned by her mother. According to Anderson, such statements demonstrate that Oregon’s statutory scheme encourages arbitrary enforcement by law officials.

Anderson’s argument sounds in selective prosecution, rather than an arbitrary enforcement. Because Anderson did not raise a selective prosecution claim at any point during his trial, direct appeal, post-conviction proceedings, and habeas challenge, we decline to consider the claim in the present habeas appeal.

Anderson’s vagueness challenge fails on the merits.

3. Implications of Lawrence v. Texas

At oral argument, Anderson argued that the recent Supreme Court holding in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), established a new constitutional right that compelled us to remand this case to the district court for reconsideration of the statutory vagueness claim. We address Lawrence only so far as to state that it has no impact on Anderson’s vagueness claim. The Lawrence Court held that the Due Process Clause of the Fourteenth Amendment protects the right of two individuals to engage in fully and mutually consensual private sexual conduct. The holding does not affect a state’s legitimate interest and indeed, duty, to interpose when consent is in doubt. Anderson’s reference to Lawrence at argument does not alter his vagueness claim or create a new “Lawrence-based vagueness claim” that must be, newly exhausted in the district court, as the dissent suggests.

Nor in the context of this case does Lawrence satisfy the Teague v. Lane, 489 U.S. 288, 307, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), substantive exception allowing for retroactive application of a new rule. The Supreme Court did place “certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe,” id., but not the conduct in this case.

III. Conclusion

While the district' court erred by ruling that Anderson had procedurally defaulted his vagueness challenge, we affirm the denial of the petition .because the statutory scheme under which he was prosecuted was not unconstitutionally vague. Anderson’s evidentiary objections raise no substantial federal question. No other constitutional defects in the prosecution or in the trial have been preserved in this record.