State v. Lulay

414 P.3d 903, 290 Or. App. 282
CourtCourt of Appeals of Oregon
DecidedFebruary 14, 2018
DocketA159372 (Control), A159373
StatusPublished
Cited by8 cases

This text of 414 P.3d 903 (State v. Lulay) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Lulay, 414 P.3d 903, 290 Or. App. 282 (Or. Ct. App. 2018).

Opinion

SHORR, J.

*284Defendant was convicted of one count of sexual abuse in the first degree against A, a child under the age of 14 at the time of the abuse, and two counts of sexual abuse in the first degree and one count of attempted sexual abuse in the first degree against C, also a child under the age of 14 at the time of the abuse. Although they stemmed from unrelated incidents and involved different victims, the charges against defendant were consolidated for trial based on a motion by the state.1

Defendant raises three assignments of error: First, the trial court erred by excluding evidence of defendant's prior prosecution and acquittal for similar charges, because the evidence was relevant to show witness bias and to support defendant's theory that he took special precautions around children; second, the trial court erred by denying defendant's motion for a mistrial; and, third, the trial court erred by excluding testimony about defendant's character for sexual propriety *906and for being law abiding. We reject the second and third assignments without further written discussion. As to defendant's first assignment of error, we conclude that (1) defendant preserved his argument that the trial court erred by excluding the evidence when it was offered to establish bias; (2) the court committed legal error when it excluded the evidence in light of defendant's bias theory; and (3) the error was not harmless. Accordingly, we reverse and remand.

I. FACTS AND PROCEDURAL HISTORY

The relevant facts are procedural. Defendant was charged with three counts of sexual abuse in the first degree and one count of attempted sexual abuse in the first degree against C, a student whom defendant was tutoring; defendant was also charged with one count of sexual abuse in the first degree against A, his son's stepdaughter. At a consolidated trial, a jury found defendant guilty of all but one count of sexual abuse in the first degree in the case involving C; the jury also found defendant guilty in the case involving A.

*285Before trial, defendant moved for a preliminary ruling from the trial court to exclude evidence of a 2008 prosecution and acquittal of defendant involving sexual abuse of a child. The state responded that it did not intend to use evidence of the 2008 case in its case-in-chief unless defendant "opened the door" to that evidence. The court did not make a definitive ruling on the motion at that time, explaining from the bench that "I don't know what evidence is going to be brought forward. * * * And if something comes up, we'll deal with it at that time in the trial."

Despite asking the trial court to exclude evidence of the 2008 case, defendant explicitly referenced that case during voir dire after a potential juror alluded to the fact that she was aware of defendant's past. Defendant asked the potential juror if she was referring to the 2008 case in which defendant was "charged with something similar" and subsequently "exonerated." The potential juror confirmed that she was, and went on to state that she could not be fair in her judgment due to the 2008 charges against defendant. The court then excused the potential juror.

Following voir dire , but before opening statements, defendant moved to introduce evidence of the 2008 case. Defendant argued that that evidence should be admitted because "I opened the door in jury selection, and I intend to continue to open the door. * * * [I]t is necessary to reference the 2008 matter * * * in order to present a complete defense. * * * I intend to bring it up in my opening statement." The following exchange then ensued:

"THE COURT: And why do you consider [the 2008 case] to be relevant in this trial?
"[DEFENSE COUNSEL]: It's relevant in this trial because * * * [m]any of the witnesses in this case knew that [defendant] had been accused of sex abuse. For example, one of the state's listed witnesses [A's aunt in the case involving A] indicated that when the disclosure was made to her by [A] that [she] was concerned because she knew about the prior allegation against [defendant].
"I anticipate that there is also going to be evidence that [A's parents] had a parenting agreement that [A's mother] would not allow the children to go to [defendant's] house *286because [A's father] was aware that there had been this previous allegation.
"And so [defendant] was basically tarred and feathered with the allegation by people's opinion despite the exoneration at trial.
"Number two is, it is relevant because [defendant] and other family members, and I expect that he will testify, will indicate that because of this false accusation in 2008, that he took special precautions. He tended to be very sort of careful and shell shocked because of what happened to him. And that he was very mindful of his actions and his words around children, both in terms of his grandchildren and other children. And those are things that go to his defense in testing the state's evidence, and we're entitled to raise them."

The trial court then gave the state the opportunity to respond. The state did not *907respond specifically to defendant's explanation of the evidence's relevance. Instead, the state argued that it had not expected defendant to bring up the 2008 case because defendant had previously moved to exclude that evidence and that allowing defendant to use the 2008 case would require a "completely different trial strategy than the one we were about to do." In rebuttal, defendant argued that the state was

"fully cognizant that [evidence of the 2008 case] was a potential issue, because she's got * * * a police officer who was involved in the previous investigation [on her witness list].
" * * * * *
"I am doing my appropriate advocacy, and I'm allowed to do this, and it is relevant, it is necessary. And I'm not sure that I've covered every basis for why it's relevant * * * but I've certainly given you a couple reasons why it's relevant, and it is necessary and it is important."

The trial court then ruled that

"I find that it's entirely irrelevant to these charges that are presently before us. It is a collateral matter. Trying to prove or disprove what occurred several years ago in front of a different jury is the exact definition of a collateral issue. And it would be confusing and distort the jury away *287from the issues they have in this case of these particular allegations, and whether or not the state has proved those allegations beyond a reasonable doubt.
"Given the reasons that it is important to the defense there is no reason that a defense witness cannot present testimony that the defendant, if he wishes to testify about this, was cautious, because he didn't want to see allegations of child sex abuse. * * * [Y]ou don't have to bring up a prior prosecution and trial, and acquittal.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Cassidy
545 P.3d 203 (Court of Appeals of Oregon, 2024)
State v. Robintree
528 P.3d 1207 (Court of Appeals of Oregon, 2023)
State v. Smith
482 P.3d 174 (Court of Appeals of Oregon, 2021)
State v. Shepherd
468 P.3d 487 (Court of Appeals of Oregon, 2020)
State v. Zaldana-Mendoza
450 P.3d 983 (Court of Appeals of Oregon, 2019)
State v. Andrew
441 P.3d 247 (Court of Appeals of Oregon, 2019)
State v. Perez-Garcia
433 P.3d 443 (Court of Appeals of Oregon, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
414 P.3d 903, 290 Or. App. 282, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lulay-orctapp-2018.