August 24, 2018 08:41 PM

IN THE SUPREME COURT OF THE STATE OF OREGON ______

STATE OF OREGON, Multnomah County Circuit Court No. 14CR10194 Plaintiff-Respondent, Respondent on Review, CA A159562 v.

MICHAEL GEORGE SPEROU, SC S065471

Defendant-Appellant, Petitioner on Review.

PETITIONER’S BRIEF ON THE MERITS ______

Review of the Decision of the Court of Appeals On Appeal from a Judgment Of the Circuit Court for Multnomah County Honorable CHERYL A. ALBRECHT, Judge ______

Affirmed without opinion: September 27, 2017 Judges on Panel: LAGESEN, E., DEVORE, J., JAMES, B. ______

STEVEN J. SHERLAG, OSB# 931034 ELLEN F. ROSENBLUM #753239 SHERLAG | DE MUNIZ LLP Attorney General 1000 SW Broadway, Suite 1500 MICHAEL A. CASPER #062000 Portland, Oregon 97205 Senior Assistant Attorney General (503) 227-5200 1162 Court St. NE [email protected] Salem, Oregon 97301 Attorney for Petitioner on Review Telephone: 503-378-4402 [email protected] Attorneys for Respondent on Review

08/18

i

TABLE OF CONTENTS

STATEMENT OF THE CASE ...... 1

Questions Presented and Proposed Rules of ...... 4

Statement of Procedural and Historical Facts ...... 5

Summary of Argument ...... 13

ARGUMENT ...... 15

1. The Court of Appeals erred in Affirming the Trial Court’s Wholesale Admission of “Other Acts” , Contrary to the Baughman/Mayfield Methodology...... 15

2. The Trial Court Erroneously Admitted “Other Acts” Evidence for the Offered Nonpropensity 404(3) Categories, None of Which Were at Issue...... 16

3. To the Extent the Trial Court Conducted OEC 403 Balancing, the Balancing was Flawed because the Court Misapprehended the Value of the Evidence...... 24

4. Other Balancing Failures Were Endemic...... 24

5. The Court of Appeals erred in Affirming the Trial Court’s Refusal to Utilize Alternatives to “Other Acts” , such as a Stipulation that Digital Penetration was per se Sexual, or a Bifurcated trial...... 28

6. Under the Exceptional and Unusual Facts of this Case, the Court Should Order a New Trial...... 29

7. The admission of “other acts” evidence deprived Defendant of a Fair Trial in Violation of the Federal Due Process Clause...... 35 ii 8. The Historical Evidence Supporting Exclusion of Propensity Evidence is Compelling...... 40

9. The Constant use of “Victim” at Trial Constituted Improper Vouching and Invaded the Provence of the Jury...... 41

CONCLUSION ...... 44

iii TABLE OF AUTHORITIES

Cases

Alne v. Nooth, 288 Or App 307, 319, 406 P3d 109 (2017) ...... 42

Anonymous v. State, 507 So 2d 972 (Ala 1987) ...... 39

Artis v. United States, 505 A.2d 52 (DC App 1986), cert den, 479 US 964 (1986) ...... 39

Boyd v. United States, 142 US 450, 12 S Ct 292, 35 L Ed 1077 (1892) ...... 37

Brooks v. Commonwealth, 258 SE2d 504 (Va 1979) ...... 39

Brown v. State, 398 SE2d 34 (Ga App 1990) ...... 39

Coffin v United States, 156 US 432, 453, 5 S Ct 39439 L Ed 481 (1895) ...... 41

Commonwealth v. Chalifoux, 291 NE2d 635 (Mass 1973) ...... 39

Commonwealth v. Lark, 543 A2d 491 (Pa. 1988) ...... 39

Estelle v. McGuire, 502 US 62, 112 S Ct 475, 116 L Ed2d 385 (1991) ...... 35

Hampden’s Trial, 9 Cob St Tr 1053 (KB 1684) ...... 36

Harrison’s Trial, 12 How St Tr 834, 864 (Old Bailey 1692) ...... 36

iv In re Winship, 397 US 358, 90 S Ct 1068, 25 L Ed 2d 368 (1970) ...... 36, 42

Michelson v. United States, 335 US 469, 69 S Ct 213, 93 L Ed 168 (1948) ...... 38, 40

Old Chief v. United States, 519 US 172, 17 S Ct 644, 136 L Ed2d 574 (1997) ...... 29

Penley v. State, 506 NE2d 806 (Ind 1987) ...... 39

People v. Ewoldt, 867 P2d 757 (Cal 1994) ...... 39

People v. Kannapes, 567 NE2d 377 (Ill 1990) ...... 39

People v. Molineux, 6 Bedell 264, 168 NY 264, 61 NE 286, 293-94 (NY 1901) ...... 37

People v. Powell, 152 AD2d 918 (NY 1989) ...... 39

Reg v. Oddy, 5 Cox Crim Cas 210 ...... 38

Rex v. Doaks, Quincy’s Mass 90 (Mass Super Ct 1763)...... 37

Ross v. State, 350 A2d 680 (Md 1976) ...... 39

State v Hutton, 258 Or App 806, 311 P3d 909 (2013) ...... 17

State v. Baughman, 276 Or App 754, 369 P3d 423 (2016), aff’d, 361 Or 386, 393 P3d 1132 (2017) ...... 24, 28, 29, 32

State v. Baughman, 361 Or 386, 393 P3d 1132 (2017) ...... 1, 15, 16, 17, 20, 22, 23 v

State v. Belcher, 685 SE2d 802 (SC 2009) ...... 39

State v. Brown, 297 Or 404, 687 P2d 751 (1984) ...... 43

State v. Chandler, 360 Or 323, 334, 380 P3d 932 (2016) ...... 42

State v. Clark, 801 SW2d 701 (Mo App 1990) ...... 39

State v. Griffin, 285 SE2d 631 (SC 1981) ...... 39

State v. Higgins, 258 Or App 177, 308 P3d 352 (2013), rev den, 354 Or 700319 P3d 697 (2014) ...... 44

State v. Holliday, 268 A2d 368 (Conn. 1970) ...... 39

State v. Houghton, 43 Or 125, 131, 71 P 982 (1903) ...... 38

State v. Johns, 301 Or 535, 725 P2d 312 (1986) ...... 17, 25, 36

State v. Jones, 285 Or App 680, 398 P3d 376 (2017) ...... 17

State v. Keller, 315 Or 273, 844 P2d 195 (1993) ...... 43

State v. Kelley, 293 Or App 90, ___ P3d ___ (2018) ...... 24, 29, 30

State v. Klontz, 257 Or App 684, 308 P3d 214 (2013) ...... 21

vi State v. Leistiko, 352 Or 172, 184 n9, 282 P3d 857, as modified, 352 Or 622, 292 P3d 522 (2012) ...... 21, 27

State v. Lowell, 249 Or App 364, 277 P3d 588, rev den, 352 Or 378, 290 P3d 814 (2012) ...... 44

State v. Lupoli, 348 Or 346, 463-65, 234 P3d 117 (2010) ...... 43, 44

State v. Mayfield, 302 Or 631, 733 P2d 438 (1987) ...... 7, 15, 24, 32

State v. Middleton, 294 Or 427, 438, 657 P3d 1215 (1983) ...... 43

State v. Pitt, 352 Or 566, 293 P3d 1002 (2011) ...... 17

State v. Sperou, 288 Or App 167, 403 P3d 825 (2017) ...... 4

State v. Sperou, 362 Or 794, 416 P3d 1096 (2018) ...... 4

State v. Spring, 172 Or App 508, 514, 21 P3d 657, rev den 332 Or 559, 34 P3d 1177 (2001) ...... 21

State v. Tena, 362 Or 514, 412 P3d 175, 180 (2018) ...... 16, 25

State v. Turnidge, 359 Or 364, 374 P3d 853 (2016) ...... 17, 20

State v. White, 293 Or App 62, __ P3d __ (2018) ...... 23

State v. Williams, 357 Or 1, 346 P3d 455 (2015) ...... 1, 15, 25, 28, 30, 33, 35

vii State v. Zimmerlee, 261 Or 49, 492 P2d 795 (1972) ...... 28

United States v. LeMay, 260 F3d 1018, 1028 (2001), cert den, 534 US 1166, 122 S Ct 1181, 152 L Ed2d 124 (2002) ...... 19, 41

United States v. Paladino, 401 F3d 471, 486 (7th Cir 2005) ...... 34

Woods v. Franke, 285 Or App 28, 37, 395 P3d 886, rev den, 362 Or 94, 405 P3d 155 (2017) ...... 42

Statutes

Fla Stat §90.404 ...... 38

Kan Stat Ann § 60-447 ...... 38

NC Gen Stat § 8c-1, Rule 404 ...... 39

OEC 404(4) ...... 8, 13, 15

OEC 403 ...... 7, 13, 14, 15, 22, 24, 28, 29, 30, 31, 33

OEC 404(3) ...... 2, 4, 7, 15, 16, 17, 21, 22, 29, 35

Okla Stat title §12, 2404 ...... 39

ORS 136.415 ...... 41

ORS 163.305(6) ...... 21

ORS 163.411 ...... 2, 21

ORS 163.412 ...... 2

Neb Rev Stat § 27-404 ...... 39

Nev Rev Stat § 48.045 ...... 39

viii NM Stat Ann § 11-404 ...... 39

SD Codified Ann § 19-12-5 ...... 39

Other Authorities

Charles McCormick, Evidence (5th Ed 1999) § 190 ...... 20

Christopher B. Mueller & Laird C. Kirkpatrick, Modern Evidence § 4.11 (1995) ...... 36

Edward Imwinkelried, The Use of an Accused’s Uncharged Misconduct to Prove Mens Rea: The Doctrines Which Threaten to Engulf the Prohibition, 51 Ohio St L J 575, 578 (1990) ...... 20

Edward Imwinkelried, Uncharged Misconduct Evidence, § 5:02, 4 (2004) ...... 20

Rules

Alaska R Evid § 404 ...... 38

Ariz R Evid 404 ...... 38

Ark R Evid 404 ...... 38

Cal Evid Code § 1101 ...... 38, 39

Colo R Evid 404 ...... 38

Del R Evid 404...... 38

FRE 413-14 ...... 39

FRE 403 ...... 41

FRE 404(b) ...... 20

FRE 414 ...... 41

ix Haw R Evid 404 ...... 38

Idaho R Evid 404 ...... 38

Iowa R Evid 404 ...... 38

Ky R Evid 404 ...... 38

La Code Evid Ann Art 404 ...... 38

Me R Evid 404 ...... 38

Mich R Evid 404 ...... 38

Minn R Evid 404 ...... 39

Miss R Evid 404 ...... 39

Mont R Evid 404 ...... 39

ND R Evid 404...... 39

NH R Evid 404...... 39

NJ R Evid 47 ...... 39

Ohio R Evid 404 ...... 39

RI R Evid 404 ...... 39

Tenn Rev Evid 404 ...... 39

Tex R Crim Evid 404 ...... 39

Utah R Evid 404 ...... 39

Vt R Evid 404 ...... 39

W Va R Evid 404 ...... 39

Wash R Evid 404 ...... 39

x Wis R Evid 904.03 ...... 39

Wyo R Evid 404 ...... 39

Constitutional Provisions

Cal Const Art I, § 28(d) ...... 39

US Const, Amend V and XIV ...... 1, 4, 5, 7, 35, 41

PETITIONER’S BRIEF ON THE MERITS ______

STATEMENT OF THE CASE

At issue in this case is the continued existence in Oregon of the centuries- old ban on the admissibility of propensity evidence. As the Court of Appeals summarily affirmed the trial court’s failure to conduct adequate, conscious balancing in accord with State v. Williams, 357 Or 1, 346 P3d 455 (2015), and this Court’s recent decision in State v. Baughman, 361 Or 386, 393 P3d 1132

(2017), this court is called upon to reverse and remand, or if not, to decide if

Oregon is going to be an outlier state, broadly permitting the introduction of propensity evidence irrespective of the Federal Due Process Clause. US Const,

Amend V and XIV.

Defendant was charged and later convicted of three counts of unlawful sexual penetration in the first degree, alleged to have occurred from 1993 to

1996 when complainant was between 6 and 10 years old. In 1997, an investigation into complainant’s disclosure that defendant had touched her sexually was declined for prosecution. No prosecution resulted when she repeated the allegations to the assigned deputy district attorney a few years later. When interviewed in 2014, the statute had run on sex abuse charges; however, the complainant then, for the first time, alleged digital sexual penetration and charges were brought shortly before the running of the statute of limitations. 2 Over objection, the trial court received wholesale, extensive testimony from six “other acts” , as relevant to OEC 404(3) intent, plan, absence of mistake, and opportunity, as well as to “bolster” the complainant and for

“propensity” purposes. The first investigation also considered various allegations of sexual abuse by some of the “other acts” witnesses, but like complainant, their cases were declined; by the time the investigation had re- started, statutes relating to those “other acts” witnesses had run. Other “other acts” witnesses initially denied abuse, but registered allegations in 2013 and

2014, but the statute had run on their allegations, too.

Defendant objected pretrial as he did not defend on mistake or accident, identity, lack of intent, or lack of opportunity, but, instead, that all acts of abuse, charged and uncharged, had not occurred – and not because he was elsewhere.

Thus, the “other acts” evidence was not relevant for any non-propensity purpose. OEC 404(3). Moreover, since unlawful sexual penetration does not contain an element of sexual intent,1 sexual intent was not at issue; in the

1 ORS 163.411 provides:

Except as permitted under ORS 163.412 (Exceptions to unlawful sexual penetration prohibition), a person commits the crime of unlawful sexual penetration in the first degree if the person penetrates the vagina, anus or penis of another with any object other than the penis or mouth of the actor and:

(a) The victim is subjected to forcible compulsion;

(b) The victim is under 12 years of age; or 3 alternative, defendant offered to stipulate that if digital penetration was found by the jury, it is per se sexual so the state did not have to prove sexual intent if the court read that into the statute. Defendant further argued the “other acts” evidence was solely relevant to propensity, and that it was inadmissible after

403 balancing, but if admitted would render the trial fundamentally unfair under the federal due process clause.

Throughout trial and over objection, complainant and the “other acts” witnesses were repeatedly referred to as “victims” by the prosecutor, the case detective, the state’s expert , and by other state’s witnesses.

As will be elaborated below, the Court of Appeals erred in affirming the trial court’s admission of the “other acts” evidence witnesses, which here constituted propensity evidence, and rendered the trial fundamentally unfair in violation of federal principles of due process. Furthermore, the constant use of

“victim,” referring to the complainant, the “other acts” witnesses, and otherwise, constituted impermissible vouching and created an atmosphere focused on guilt, especially in light of the pervasive “other acts” evidence, and as such violated federal principles of due process.

(c) The victim is incapable of consent by reason of mental defect, mental incapacitation or physical helplessness. 4 The jury returned non-unanimous verdicts of guilty on all three counts and defendant was sentenced to a term of incarceration with the Oregon

Department of Corrections for a period of 240 months.

The Court of Appeals affirmed without opinion. State v. Sperou, 288 Or

App 167, 403 P3d 825 (2017). Defendant petitioned for review, and this court allowed review. State v. Sperou, 362 Or 794, 416 P3d 1096 (2018).

______

QUESTIONS PRESENTED AND PROPOSED RULES OF LAW

First Question Presented

Where the defense to unlawful sexual penetration charges was that the acts simply did not occur, did the Court of Appeals err in affirming the trial court’s admission over objection of extensive “other acts” testimony from six witnesses to prove defendant’s intent, plan, and the absence of mistake or accident when none were at issue at trial, as well as to bolster the credibility of complainant, and as propensity evidence?

First Proposed Rule of Law

“Other acts” evidence, although relevant to OEC 404(3) categories but not to issues contested at trial, should be excluded under OEC 403 and the Due Process Clause.

Second Question Presented

Did the Court of Appeals err in affirming without opinion the trial court’s denial of defendant’s motion in limine to prevent the complainant and the “other acts” witnesses from being repeatedly referred to by the prosecutor and the prosecution witnesses as “victims”? 5

Second Proposed Rule of Law Before the trier of fact, the complainant and “other acts” witnesses should be referenced, like all other litigants and witnesses, by neutral terms such as “complainant” or “accuser,” and not as “victim,” which constitutes a legal conclusion and impermissible vouching. The pervasive use of this term throughout trial, especially one with extensive “other acts” evidence, violates the Due Process Clause.

______

STATEMENT OF PROCEDURAL AND HISTORICAL FACTS

Defendant was the leader of a small faith community, (Tr.Vol.21:79-80),2 which focused on intense orthodox scholarship in the original languages of the

Bible, and whose core members lived in large cooperatively-run homes.

(Tr.Vol.21:81-82). Most held employment outside the community, and young adults were strongly encouraged to pursue college, and sometimes advanced, degrees; many entered military service. (Tr.Vol.12:33).

In 1996, the community’s deep fractures led to a split because of long simmering problems – alcohol and drug use, emotional and extra-marital affairs within the community, (Tr.Vol.13:153; 17:11-13), and jealousy of those who advanced into more senior positions – which caused departures, including complainant’s family, and sometimes even split families down the middle.

2 Trial Volume, abbreviated as “Tr.Vol.” 6 (Tr.Vol.12:17, 133-34, 188, 192; 13:153; 22:26-28, 34).

Not long after complainant left the community, complainant reported defendant had touched her sexually, but not penetrated her. (Tr.Vol.16:11-14;

15:74-75, 92). After investigation, prosecution was declined. Complainant made similar claims of touching again in 2000 to the case deputy district attorney, (Tr.Vol.15:92; 17:57), but no claims of digital penetration, and again no steps were taken to institute prosecution. Some “other acts” witnesses made claims then too, but their cases were declined, a decision supported by their parents. (Tr.Vol.12:198-99; 12:230-32; 14:93-94; 16:103-04; 17:50, 53, 56).

Some “other acts” witnesses denied they were abused then, (Tr.Vol. 16:64), but made allegations many years later.

In 2013 an investigation was re-opened when a former community member then estranged, contacted a civil lawyer and subsequently contacted law enforcement. (Tr.Vol.14:175). Later, would be one of six

“other acts” witnesses who testified at trial. In 2014, a new case detective contacted complainant, and for the first time, she alleged four instances of digital penetration, (Tr.Vol.12:54-57; Tr.Vol.15:76-77); at pretrial hearing she estimated she was abused 15 to 20 times, (Pr.Tr.Vol.6:27-28),3 but did not

3 Pretrial Volume, abbreviated “Pr.Tr.Vol.”

7 differentiate between touching and penetration. Counsel was prohibited from going into specifics of the penetration events at that time. (Pr.Tr.Vol.6:72),

Defendant objected pretrial and again during trial as he did not defend on mistaken identity, accident or mistake, lack of intent, or lack of opportunity, but instead, that the charged acts of abuse had not occurred – and not because he was elsewhere – so the “other acts” evidence was not relevant to any of the

OEC 404(3) categories at issue. Moreover, as the offense lacks an element of sexual intent, sexual intent was also not at issue; in the alternative, defendant offered to stipulate that if digital penetration was found by the jury, it was per se sexual so the state did not have to prove sexual intent. Thus, the “other acts” witnesses had no at all other than propensity. Defendant argued the

“other acts” evidence was solely relevant to propensity, and that under the

Mayfield4 analysis, the “other acts” nominal probative value was substantially outweighed by the danger of unfair prejudice and would cause substantial trial delay. (Tr.Vol.13:2-4). Thus, the evidence was inadmissible under OEC 403 balancing and would render the trial fundamentally unfair under the United

States Constitution’s Due Process Clause.

Over objection, the trial court received wholesale, extensive testimony from six “other acts” witnesses. The court found the evidence relevant to several non-propensity purposes – to establish defendant’s intent, plan, the

4 State v. Mayfield, 302 Or 631, 645, 733 P2d 438 (1987). 8 absence of mistake, or opportunity, (Tr.Vol.14:8) – as well as to bolster the credibility of complainant and as “propensity” evidence under 404(4). ER-14;

(Tr.Vol. 13:116, 22:219-222, 226).

A thirteen-day jury trial ensued, the vast portion of which constituted testimony of, or related to, “other acts” witnesses, the context of the “other acts” witnesses’ disclosures, and the small-faith community dynamic, including many other types of bad acts. The complainant didn’t testify until the fifth day of trial – after five of the six “other acts” witnesses -- and even then for only part of that day as two other witnesses also testified.5

Complainant’s 2014 disclosure to the detective of four instances of digital penetration became, at trial, 20 to 24 incidents per year over a period of six to seven years. (Tr.Vol.15:82). Four of the “other acts” witnesses alleged touching only (Pr.Tr.Vol.6:102; 6:150, 193; 7:41; Tr.Vol.15:31), and two others touching and penetration; all of the “other acts” witnesses’ allegations were then barred by the statute of limitations. Neither of the two “other acts” witnesses alleging digital penetration testified to such a vast number of incidents of penetration.

Defendant testified and denied committing any acts of sexual misconduct whatsoever against complainant or any of the six “other acts” witnesses.

5 The complainant was later briefly recalled during Defendant’s case. 9 (Tr.Vol.21:125-26). Instead, he contended the claims were false, either intentionally and motivated by ill-will and vindictiveness from the adults who had departed the small faith community, who either encouraged their children to lie or contaminated their childrens’ memories. Defendant also brought out various inconsistencies, earlier-in-time denials by certain “other acts” witnesses, as well as attacks on the biases of the “other acts” witnesses and the

“other acts” witnesses’ parents who had left the community on bad terms. The parents of the “other acts” witnesses were all over the board: some insisted defendant was innocent and were then estranged from their children, some were firmly on their daughters’ sides, and sometimes parents split, taking opposite sides.

The state’s cross-examination of defendant (Tr.Vol.21:133-221) focused on all manners of his alleged bad acts, but only asked two questions tangentially related to complainant:

“Q Do you think the [complainant’s family] appreciated [community

members packing up their property when they left]?

“A Yes.”

(Tr.Vol.21:212)

“Q So just in conclusion, Mr. Sperou, you think this is about these

people, (three “other acts” witnesses) --

“A Yes. 10 “Q – [complainant] --

“A Yes.

“Q (a fourth “other acts” witness) --

“A Yes.

“Q now (a fifth “other acts” witness) --

“A Correct.”

(Tr.Vol.23:217)

“Victim” references in the presence of jury.

Throughout the trial and over objection, complainant and the “other acts” witnesses were repeatedly referred to as “victims” by the prosecutor, the case detective, the state’s , and by other state’s witnesses.

The prosecutor, in opening, referred to two “other acts” witnesses as

“child victims,” (Tr.Vol.12:15, 19), and described how the state’s expert would testify about signs of sexual abuse and reactions of various

“victims.” (Tr.Vol.12:15, 19). When the expert, a child abuse interviewer and therapist testified, the word “victim” was used some 20 times in various contexts. (Tr.Vol.15:170-192).

On the trial’s second day of receiving testimony, the prosecutor announced before the jury, “* * * Your Honor, [the complainant] is in the courtroom for the first time. She is a victim. She has a constitutional right to attend all proceedings.” (Tr.Vol.13:119). 11 The testimony of the later assigned lead detective, Helwig, was littered with “victim”: her sergeant had spoken with “victims” in the 1997 investigation; (Tr.Vol.12:51); there were seven “victims” in 1997;

(Tr.Vol.12:51); she focused on three specific “victims”; (Tr.Vol.12:52); she took a “victim- centered” approach in arranging a meeting with complainant;

(Tr.Vol.12:55); there was a strong possibility there were other “victims” besides the original seven; (Tr.Vol.12:57); the earlier assigned detective interviewed most of the “victims” in 1997; (Tr.Vol.12:64); she interacted with child

“victims” in the DV unit; (Tr.Vol.12:70); the complainant was a “potential victim.” (Tr.Vol.18:128).

The mother of “other acts” witnesses and referred to a text message with the “victims’ advocate.” (Tr.Vol.14:47). An estranged community member testified she previously lived with the grandmother of the “victim”

(complainant), (Tr.Vol.13:172), and described complainant as the “victim.”

(Tr.Vol.13:184). The prosecutor asked the mother of “other acts” witness who was estranged from if she had experience dealing with sexual abuse

“victims.” (Tr.Vol.18:52).

“Other acts” witness testified when she learned of the renewed investigation she thought of “future victims.” (Tr.Vol.14:55). “Other acts” used “victim” twice when she testified she was told being a “victim” was a bad thing; (Tr.Vol.14:158); she heard a lawyer speak at a conference about what 12 “victims” of abuse experience; (Tr.Vol.14:161); she met with a “victims’ advocate.” (Tr.Vol.14:176). “Other acts” testified she met with the prosecutor, the case detective, and a “victims’ advocate.” (Tr.Vol.14:266).

Complainant testified she had a “victims’ rights” lawyer,

(Tr.Vol.15:78), and has met with the prosecutor’s “victims’ advocate.”

(Tr.Vol.15:89).

The 1997 detective testified about training involving interviewing

“victims” of sexual abuse; (Tr.Vol.16:9); how many sexual abuse “victims” he’s interviewed; (Tr.Vol.16:10); described a “victims’ interview room”;

(Tr.Vol.15:12); indicated the “victims” interview room was used in interviewing “these girls” (unclear if referring to all seven or just “other acts”

and (Tr.Vol.15:12); described family members involved with the

“victims” interviewed; described 1997 protocols for interviewing “victims;” his practice when interviewing “victims;” (Tr.Vol.15:14, 21); removing outside influences when interviewing “victims;” (Tr.Vol.15:53); twice recalling one of the “victims” in this case didn’t want to talk about it; (Tr.Vol.15:60); and discussed techniques for interviewing “victims.” (Tr.Vol.15:65). The prosecutor asked why it’s important to talk with “victims” close in time to the abuse. (Tr.Vol.15:87). The 1997 detective asked a clarifying question: “[Y]ou want the victims or all the –.” (Tr.Vol.15:12).

The original case prosecutor, who had declined prosecution, testified 13 regarding information that did not come from the “victims”; (Tr.Vol.17:63); the trial prosecutor then asked the declining prosecutor five questions about his policies and practices as related to potential crime “victims.” (Tr.Vol.17:65-67).

The prosecutor asked the defense memory expert questions about studies with “victim” and “victimization,” respectively, in their titles. (Tr.Vol.17:159,

163).

In closing arguments, the prosecutor called two uncharged “other acts” witnesses victims; (Tr.Vol.23:11, 27); argued as pertinent to the instant facts, the common reactions of “victims” of sexual abuse; (Tr.Vol.23:29); argued how sex abuse “victims” act; (Tr.Vol.23:30); methods of grooming “victims”;

(Tr.Vol.23:30); and disclosure characteristics of “victims.” (Tr.Vol.23:33). The prosecutor argued in closing defendant had victimized himself. (Tr.Vol.23:83).

______

SUMMARY OF ARGUMENT

OEC 404(4) provides, in part, that, “In criminal actions, evidence of other crimes, wrong or acts by the defendant is admissible if relevant except[,] *

* * to the extent required by the United States or the Oregon Constitution,

[OEC 403.]”

The Court of Appeal erred in affirming the trial court, which in turn erred by (1) finding “other acts” evidence admissible for four nonpropensity 14 categories of intent, plan, absence of mistake, or opportunity when none were relevant to contested trial issues; (2) conducting OEC 403 balancing with an incorrect understanding of the probative value of the evidence; (3) admitting wholesale testimony from six “other acts” witnesses, which demonstrated a lack of conscious weighing in light of the limited issues presented; (4) deeming

“other acts” evidence necessary to bolster the credibility of the complaining witness, which here constituted propensity evidence; (5) disregarding alternatives to “other acts” testimony, including defendant’s proffered stipulation that digital penetration was per se sexual, or a bifurcated trial. These balancing failures constituted a violation of federal due process in itself, and a secondary due process violation as the court otherwise admitted the “other acts” evidence for propensity purposes.

At trial defendant denied committing any acts of abuse whatsoever, and did not claim that any of his acts could have been misconstrued or were any type of accidental touching. Moreover, because the instant charges do not require sexual contact or sexual purpose, all that was left was propensity.

The due process balancing was woefully inadequate with the court’s wholesale admission of the other acts of abuse. The trial judge failed to meaningfully appreciate or consider just how different the allegations of the other acts witnesses were. At issue here was sexual penetration of the complainant, yet four of the six “other acts” witnesses made no allegations of 15 sexual penetration. Altogether, at best there was a demonstration of a spurious plan, nothing of striking similarity to the complainant. Finally, the court allowed the “other acts” evidence to prove propensity, and admission of such violates due process.

The endemic use of “victim” throughout trial, including by the prosecutor, two detectives, the state’s expert, and other witnesses, constituted improper vouching.

ARGUMENT

1. The Court of Appeals erred in Affirming the Trial Court’s Wholesale Admission of “Other Acts” Evidence, Contrary to the Baughman/Mayfield Methodology.

This Court has established a methodology for resolving the conflicts between the evidentiary rules OEC 404(3), OEC 404(4), and OEC 403, when the state attempts to offer “other acts” evidence in cases alleging child sex abuse, in State v. Williams, 357 Or 1, 346 P3d 455 (2015) and State v.

Baughman, 361 Or 386, 393 P3d 1132 (2017). Under this methodology,

“a trial court first should determine whether the proffered evidence is relevant for one or more nonpropensity purposes, under OEC 404(3). If it is, then the court should determine, at step two, whether the probative value of that evidence is substantially outweighed by the danger of unfair prejudice under OEC 403. [ ] If the trial court determines that the evidence is relevant for a nonpropensity purpose under OEC 404(3) and admissible under OEC 403, then it need not determine whether the evidence also is admissible under OEC 404(4) and OEC 403. However, if a trial court determines that proffered evidence is not relevant for a nonpropensity purpose, then it must determine whether that evidence nevertheless is otherwise relevant under OEC 404(4) and, 16 at step two, whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, under OEC 403.”

Baughman, 361 Or at 404–05; accord State v. Tena, 362 Or 514, 521, 412 P3d

175, 180 (2018).

The decision at step one has a “significant effect” on admission at step two, because if there is a relevant nonpropensity purpose at step one, it will be generally admissible; if not, “when evidence is relevant only to prove a defendant’s character, more significant due process concerns are implicated, and, generally, the danger of unfair prejudice will substantially outweigh the probative value of the evidence.” Baughman, 361 Or at 405.

2. The Trial Court Erroneously Admitted “Other Acts” Evidence for the Offered Nonpropensity 404(3) Categories, None of Which Were at Issue.

Here, in spite of defendant’s repeated objections, both in written form and orally, (Tr.Vol. 10:179-182, 184-186; 13:2-5; 22:215-220; 23:49), and repeated requests, (Tr.Vol. 6:3 (“* * * I wanted to let the Court know the State has never articulated its 404 theory * * * I don’t think there is a meaningful articulation of [the state’s] theory”); Tr.Vol. 6:4 (“I respectfully would move that the State be required to articulate its 404 prior bad acts theory”); the state failed to meaningfully articulate and the trial court failed to require or articulate in its ruling, an explanation of how the proffered “other acts” evidence had a relevant purpose in the instant case. Furthermore, the court did not 17 meaningfully articulate how admission was not “based upon the relationship of the evidence to one of the listed 404(3) categories, rather [than] based on its relevancy to a fact at issue in the trial other than proving a propensity to commit certain acts.” Baughman, at 407, citing State v. Pitt, 352 Or 566, 576, 293 P3d

1002 (2011), citing State v. Johns, 301 Or 535, 549, 725 P2d 312 (1986); see also State v. Turnidge, 359 Or 364, 374 P3d 853 (2016); State v. Jones, 285 Or

App 680, 688, 398 P3d 376 (2017).

The state made two arguments for admissibility, the first in its written motion the state made a simple categorical argument – an approach discouraged6 – that the evidence fit 404(3) categories (“the evidence would also

6 The categorical approach of admission and exclusion is disfavored, and instead decisions should be guided by what is at issue: “intent is not a contested issue for purposes of OEC 404(3) in every case merely by virtue of the fact that the state must prove that element * * * [as when] the defendant has pled not guilty.” State v Hutton, 258 Or App 806, 812, 311 P3d 909 (2013).

18 prove things like intent, motive,7 opportunity, identity,8 etc.”), ER-3, and later orally (Tr.Vol.23:50 (arguing absence of mistake and opportunity are “fitting for what we heard in this trial”)); and a second pure character propensity argument in its written motion (“defendant’s sexual abuse of other child victims shows that defendant sexually desires children, or is aroused or gratified by them, and the State is entitled to prove that fact in the current case.”), ER-5, and orally (Tr.Vol. 22:220-21 (arguing motive as part of the Johns analysis, as

7 As discussed infra, motive was argued by the state, essentially as a propensity theory. When the court instructed on “other acts” evidence, the court did not include motive as a permissible use:

“Evidence of other uncharged acts.

“The defendant, Mr. Sperou, is not charged with committing any crime other than the charges that are contained in the indictment, which is three counts of Unlawful Sexual Penetration in the First Degree as to [complainant].

“The State presented witnesses who testified about other uncharged acts they say were committed by Mr. Sperou. He is not facing charges [on] those acts. You shall not consider evidence of these other acts as a substitute for proof that he committed the crimes for which he is actually charged.

“The State is offering these other acts as relevant to show the defendant’s intent, plan, absence of mistake or opportunity to commit the crime for which he is charged.”

(Tr.Vol. 23:91-92).

8 Identity was never in issue and although included in the state’s written motion, it was not argued at trial, demonstrative of the state’s lack of forethought in designating their categorical theories of admissibility. 19 relevant to increase probability defendant touched “to arouse or gratify his sexual desire”)). In closing the prosecutor drove home the jury’s free-range use of this evidence,

“There were so many, there were so many kids. And a lot of those kids suffered the same sexual abuse that [complainant] did, and the law allows you to consider it.”

(Tr.Vol.23:81).

The trial court found the “other acts” evidence admissible to prove

“opportunity, intent, absence of mistake, and plan,” following a similar categorical approach without meaningful regard to consideration of the actual issues contested at trial. Although the trial court’s written opinion methodically walked through the LeMay9 factors, the court incorrectly applied them and simply let everything in, not distinguishing in any fashion between the complainant and any of the “other acts” witnesses, even the four who alleged only touching and no digital penetration whatsoever.

First, the “other acts” evidence was not relevant to intent here because

“intent” was not at issue in this case.10 Intent can be at issue in a variety of

9 United States v. LeMay, 260 F3d 1018, 1028 (2001).

10 Prof. Imwinkelried criticizes as “intellectually dishonest” an approach that permits the introduction of propensity evidence to prove a defendant’s mens rea, as opposed to the occurrence of the act:

“Some have suggested that the character evidence prohibition does not apply at all when the ultimate inference is the defendant’s mens rea rather than the defendant’s physical conduct. 20 ways, such as when a defendant claims accidental or non-sexualized touching, or under the doctrine of chances. However, neither was claimed here by defendant, and the prosecutor never claimed reliance on doctrine of chances.

Nor did defendant

“advance any sort of defense (such as inadvertence or self-defense) that customarily would be countered by a doctrine of chances theory of relevancy and the state does not offer other acts evidence ‘to prove ‘intent’ in the ‘absence of mistake’ sense of the term,’ then the doctrine of chances is inapplicable, and other acts evidence is not admissible to prove a defendant’s intent on that basis.”

Baughman, 361 Or at 407, citing Turnidge, 359 Or at 437. (Tr.Vol. 13:114-15

(“* * * without doctrine of chances, it’s only * * * propensity. [Then when balancing] there’s nothing that’s probative anymore.”)).

* * * Under this theory, the prosecutor may employ the defendant’s disposition toward a certain mens rea as an intermediate inference.”

Edward Imwinkelried, Uncharged Misconduct Evidence, § 5:02, 4 (2004).

Prof. Imwinkelried argues such a theory is unsound in principle and dubious as a matter of statutory construction. Id. at 4-5; see also Edward Imwinkelried, The Use of an Accused’s Uncharged Misconduct to Prove Mens Rea: The Doctrines Which Threaten to Engulf the Character Evidence Prohibition, 51 Ohio St L J 575, 578 (1990) (arguing that case law holding that FRE 404(b) is inapplicable when the ultimate inference is mental state rather than physical conduct is “spurious”); 1 Charles McCormick, Evidence (5th Ed 1999) § 190 (“[E]vidence in any form – reputation, opinion from observation, or specific acts – generally will not be received to prove that a person engaged in certain conduct or did so with a particular intent on a specific occasion, so- called circumstantial use of character.”) (emphasis added). 21 Further, unlike charges of sexual abuse, which require “sexual contact”

(touching “for the purpose of arousing or gratifying the sexual desire of either party;” see ORS 163.305(6) (emphasis added), unlawful sexual penetration has no such requirement of sexualized purpose. Compare ORS 163.411; State v.

Spring, 172 Or App 508, 514, 21 P3d 657, rev den 332 Or 559, 34 P3d 1177

(2001) (rape does not require “for the purposes or gratifying the sexual desire of either party”) (emphasis in original). To that end, defendant offered to stipulate that if sexualized purpose was read into the offense of unlawful sexual penetration, and if penetration was found by the jury, he would stipulate to sexual purpose as an alternative to admission of “other acts” evidence.

Second, two of the other theories of OEC 404(3) relevance, to wit, plan and absence of mistake, are essentially separate ways of articulating the same concept, intent, or here, sexual intent. State v. Klontz, 257 Or App 684, 694,

308 P3d 214 (2013) (intent, plan, and absence of mistake are related to proof defendant acted with a certain intent), citing State v. Leistiko, 352 Or 172, 184 n9, 282 P3d 857, as modified, 352 Or 622, 292 P3d 522 (2012). As discussed supra, defendant never claimed accidental or non-sexualized touching of any sort, let alone of sexual penetration. Frankly, due to the nature of sexual penetration, it’s hard to conceive how one would even logically, plausibly argue

“mistake” as a defense to unlawful sexual penetration, which defendant argued pretrial, (Pr.Tr.Vol.10:184-85), further demonstrating both the state and trial 22 court’s misapplication of a superficial, categorical application of OEC 404(3) nonpropensity purpose. Neither was relevant to facts in issue in the instant matter other than superficial, categorical references to the OEC 404(3) categories irrelevant to trial issues. If anything, it would seem the state confused the category of plan, which can be used to prove intent, with a propensity purpose.

The final theory of OEC 404(3) relevance, “opportunity,” was also not at issue. Defendant was in the same small faith community as complainant, thus, the notion that he did not have any intermittent degree of access whatsoever under any circumstances was not meaningfully relied upon or argued at trial when the defense was that the abuse simply did not occur.

Thus, this error at step one of the analysis, as in Baughman, significantly affected the trial court’s decision at the second step, id. at 407, thus, respectfully, the trial court erred and the evidence was not harmless, as there is no way to conclude “there is little likelihood” the “other acts” evidence did not impact the verdict. Id.

However, the trial court made other significant errors too, including in its subsequent OEC 403 balancing, where it found the “only testimony available to the State without the other acts evidence is testimony by [complainant] alone,” so the “other acts” evidence was needed to “bolster her credibility and to attempt to rebut the defense of fabrication and memory contamination.” 23 Bolstering the complainant’s testimony through an inference that the defendant acted consistently with his propensity to sexually abuse young girls is an improper consideration, as Baughman reaffirmed, as “no more than a propensity argument by another name.” Id., at 406; accord State v. White, 293

Or App 62, 66–67, __ P3d __ (2018) (bolstering for an allowable nonpropensity theory is not improper). Thus, the trial court’s OEC balancing was based on an erroneous conclusion as to the value of the evidence.

Finally, because the “other acts” testimony and their course of earlier denials, disclosures, and the context of same took on a life of its own, dominating trial, what should have been a two or three-day jury trial lasted thirteen court days, which does not include pretrial hearings as to admissibility of evidence. This resulted in unnecessary confusion and delay, and likely overwhelmed the jury with “other acts” unnecessary to that which was actually at issue, whether or not defendant sexually penetrated complainant many years earlier. Of this thirteen-day jury trial, the testimony of the complainant only lasted part of one day -- two other witnesses testified that day as well.11 It is telling, also, that complainant was buried in the state’s case, not testifying until the fifth day of trial, after five of the six “other acts” witnesses had already given lengthy, sometimes emotionally charged testimony.

11 Complainant was briefly recalled during defendant’s case. 24 3. To the Extent the Trial Court Conducted OEC 403 Balancing, the Balancing was Flawed because the Court Misapprehended the Value of the Evidence.

Because the trial court erred in determining there were four nonpropensity purposes for which the evidence was admissible, the court erred

“in determining the ‘quantum of probative value of the evidence’ and, consequently, results in an abuse of discretion in conducting OEC 403 balancing. Mayfield, 302 Or at 645; see Baughman II, 361 Or at 407 (explaining that an erroneous determination that evidence was admissible for three nonpropensity purposes, when actually the state had advanced no nonpropensity reason for admission, ‘significantly affected the trial court’s decision at the second step of the analysis,’ that is, the court’s OEC 403 balanc- ing); State v. Baughman, 276 Or App 754, 772, 369 P3d 423 (2016) (Baughman I), aff’d, 361 Or 386, 393 P3d 1132 (2017) (holding that the erroneous determination that evidence was admissible for two nonpropensity purposes, when actually the evidence was relevant for only one nonpropensity purpose, meant that ‘the trial court did not correctly consider the ‘quantum of probative value of the evidence’’ and required remand).”

State v. Kelley, 293 Or App 90, 96, ___ P3d ___ (2018).

As explained supra, none of the four nonpropensity categories were in fact at issue in this case, thus this court must reverse and remand, as the “the trial court did not correctly consider the ‘quantum of probative value of the evidence.” Baughman, 361 Or 386.

4. Other Balancing Failures Were Endemic.

The trial court’s OEC 403 balancing demonstrates other significant misunderstandings of the evidence and applicable standards, as demonstrated in 25 the court’s written opinion granting the state’s motion to admit “other acts” evidence. ER-12-16.

First, because the court mistakenly took a categorical approach, described supra, and incorrectly ruled there were four applicable nonpropensity purposes, the court did not perceive or understand that the only purpose for which “other acts” could have been considered were as “pure propensity,” which Williams instructs should, when standing alone, be evaluated with a thumb on the scale towards exclusion.

Second, the court glossed over the numerous dissimilarities between complainant’s allegations and that of the “other acts” witnesses, devoting only a single superficial paragraph of its written order, titled “Similarity,” noting that the factors it considered were similar to the factors in State v. Johns, 301 Or

535, 725 P2d 312 (1986). ER-14. The proximity of this discussion to Johns suggests the trial court was engaged in a Johns-type analysis, which, for reasons discussed supra is entirely misplaced in this case as this was neither the typical

Johns scenario to prove intent, where intent is at issue. See State v. Tena, 362

Or 514, 524, 412 P3d 175 (2018) (basic idea behind the doctrine of chances, as

“the court explained in Johns, ‘[t]he recurrence or repetition of the act increases the likelihood of a mens rea or mind at fault * * * it does not apply when there is a dispute whether the defendant performed the act at all.”). Mens was plainly not at issue in this case. 26 The “other acts” witnesses allegations differed significantly from the complainant’s, and especially differed as to the complainant’s claim of a vast number of digital penetration occurrences. Four of the “other acts” witnesses did not alleged penetration at all, which should have been the central issue at trial.12 So why were they allowed to testify at all? How was their testimony relevant to facts at issue – digital penetration? Propensity. Period. Pure propensity. Obviously the state’s goal was to make defendant appear to be a bad person, a serial pedophile. Furthermore, of those “other acts” witnesses who did allege penetration, none made a claim of anything approximating the trial-testimony-inflated 24 penetration occurrences a year over 6-7 years made by the complainant.

12 testified that defendant never touched her genitals, (Pr.Tr.Vol.7:41), and the total number of abuse events was an estimated total of 20 or more times over 6 to 7 years. (Tr.Vol.14:16). testified defendant touched her genitals but never penetrated her, (Pr.Tr.Vol.6:102; (Tr.Vol.15:31), with an estimated total of 30-40 times of touching. (Pr.Tr.Vol.6:103). estimated 15-20 total events of abusive touching, (Pr.Tr.Vol.6:151-52; Tr.Vol.15:167), and no digital penetration. (Pr.Tr.Vol.6:150, 193). testified defendant rubbed her vagina, but did not testify as to digital penetration, (Pr.Tr.Vol.6:209-10; Tr.Vol.14:47-48), with a total four to five events from the ages of 12 to 17. (Pr.Tr.Vol.6:213, 217-18; Tr.Vol.14:144, 152). testified that over 10 years, there were at least a couple dozen times of sexual contact, including digital penetration, fondling, kissing, and intercourse. (Pr.Tr.Vol.5:69, 72; Tr.Vol.14:201). testified on one occasion she woke with defendant’s finger penetrating her, (Pr.Tr.Vol.5:134-5; Tr.Vol.14:76), and sexual touching occurred 3-4 times a month over approximately ten years. (Tr.Vol.14:75-76).

27 Third, when considering how clearly the other act is proved, ER-15, the court cited State v. Leistiko, 352 Or 172, 185, 282 P3d 857 (2012) for the purposes of establishing intent under the doctrine of chances. Again, the doctrine of chances simply not an appropriate consideration under the facts of this case.

Fourth, the trial court indicated that it considered whether less prejudicial evidence was available: “Absent a stipulation, there is no other evidence available to the state.” ER-15. However, there was other evidence – testimony of the complainant, and, when a stipulation was offered – to wit, sexual penetration is per se sexual, defendant’s stipulation was rejected. See discussion infra.

Fifth, the court gave passing consideration that the “other acts” evidence might prove distracting to the issues and time consuming, ER-15, but as described earlier, what actually occurred was a thirteen-day jury trial designed to distract the jury from the weaknesses of the complainant’s testimony, and bury the complainant’s testimony among all kinds of other evidence not pertinent to whether the state could prove she was digitally penetrated almost two decades prior.

Other aspects can be argued too, but the point has been made. The only valid issue at trial was whether sexual penetration had occurred at all with this complainant. Instead, the state rolled up with the dump truck and the court 28 allowed it to unload in the court room. Everything came in from the “other acts” witnesses without any limitation. The result was a conviction and due process violation, a trial that was fundamentally unfair.

5. The Court of Appeals erred in Affirming the Trial Court’s Refusal to Utilize Alternatives to “Other Acts” Testimony, such as a Stipulation that Digital Penetration was per se Sexual, or a Bifurcated trial.

Although defendant contends that sexual intent was not at issue in this case, to the extent defendant is incorrect and the state needed “other acts” evidence to prove sexual intent, defendant offered to stipulate that digital penetration, if proven, was per se sexual, so “other acts” testimony was unnecessary, or in the alternative, for a bifurcated trial on actus reus first without “other acts” evidence, to be followed by trial on mens rea, to wit sexual intent. The trial court rejected both options.

This court has held that where a defendant objects to admission of a prejudicial piece of evidence and offers a nonprejudicial evidentiary equivalent,

“the prejudicial effect of the evidence would outweigh its probative value and it is not admissible.” State v. Zimmerlee, 261 Or 49, 54, 492 P2d 795 (1972).

Such is in accord with Baughman, at 407 (“[E]vidence admitted for a nonpropensity purpose generally is admissible under OEC 403, while evidence admitted solely to prove a defendant’s character is not.”), and Williams, at 20

(when no permissible inferences can be drawn from “other acts” evidence, it generally lacks probative value and will be excluded because the risk that the 29 jury will use the evidence improperly is “substantial”), and it was error for the court to refuse the stipulation to prove intent, or employ a bifurcated trial.

Accord Old Chief v. United States, 519 US 172, 180, 17 S Ct 644, 136 L Ed2d

574 (1997) (when “the functions of the competing evidence are distinguishable only by the risk inherent in the one and wholly absent from the other,” the “only reasonable conclusion was that the risk of unfair prejudice did substantially outweigh the discounted value of the record of conviction”). The trial court erred by refusing the stipulation in lieu of testimony from “other acts” witnesses.

6. Under the Exceptional and Unusual Facts of this Case, the Court Should Order a New Trial.

Defendant concedes that after Baughman, the typical correct result when the trial court misidentifies a OEC 404(3) nonpropensity purpose is a remand for the trial court to engage in balancing under a correct understanding of the quantum of proof, especially where, as here, defendant’s testimony directly contradicted the state’s evidence, unless the error was harmless. Kelley, 293 Or

App at 98. There is simply no way to say it was harmless here for at least four independent and compelling reasons.

First, there is no way for this court to know how the trial court would have ruled if it had “properly exercised its discretion under OEC 403.” Id., at

98. 30 Second, it is impossible to know how strong the government’s case would be after correct OEC 403 balancing because there is no way to know what, if any, of the “other acts” evidence would be admitted. The trial court, on remand, has the option of keeping it all out, admitting some “other acts” evidence and excluding some, or again admitting it all. While defendant respectfully suggests the first option is correct as there are no proper nonpropensity purposes, Kelley suggests remand for rebalancing is the correct option.

Third, frankly, with no nonpropensity purposes, the state’s case is quite weak as i) the other acts evidence should be kept out altogether; see Williams, at

19-20 (when “other acts” evidence “goes only to character and there are no permissible inferences the jury may draw from it,” it is more likely the evidence will be excluded); ii) the former trial, dominated by testimony from “other acts” witnesses, persons related to “other acts” witnesses only, and general community background information would be radically different and much shorter, probably a few days at best instead of thirteen; and iii) a new trial would likely focus on inconsistencies in the complainant’s report and the rapid escalation in the number of alleged events of digital penetration from complainant’s first report in 1997 (zero), to 2000 (zero), to the first interview in

2014 and grand jury (four), to the trial (24 a year over six to seven years). 31 Fourth, because this case is an anomaly – digital penetration without any accompanying charges of sexual abuse, the trial strategy on remand without

“other acts” witnesses is likely to be radically different. For example, for the above-described reasons, it seems entirely plausible that defendant could attack the credibility of the complainant without testifying at all, putting a magnifying glass on the state’s burden, the presumption of innocence, and the rapid escalation in the complainant’s allegation as to the number of times of digital penetration. That this case also has no accompanying sex abuse charges also makes it a very pure propensity case. This is because when sex abuse is charged too, the state needs to prove sexualized intent, which makes it more likely that a nonpropensity OEC 403 factor, to wit intent, will be a relevant trial theory. Also, when sexual abuse is charged, it is vastly more likely the defendant can plausibly claim the touching was accidental or misinterpreted, i.e., innocent wrestling or tickling.

In addition, memory contamination and the involvement of spurned former community members in either planting memories or putting the children up making false allegations would be taken out of the equation on a re-trial without “other acts” evidence. Notably, this too was a crucial aspect of the trial judge’s pretrial ruling to admit “other acts” evidence, as it was “needed by the state to bolster [complainant’s] credibility and to attempt to rebut the defense of 32 fabrication and memory contamination,” since without “other acts” witnesses, all the state had was the complainant’s testimony. ER-14.

Frankly, that’s the nature of many trials, with one key witness, often the complainant, and the rest of lesser interest and significance, so the notion that

“other acts” are particularly needed is not a necessity or of any particular significance. Second, if “other acts” were needed for rebuttal, why were they allowed in the government’s case-in-chief? Without conceding that fabrication or memory contamination open the door to rebuttal, it is a radical departure from practice that the state can engage in first-strike rebuttal in its case-in-chief.

Moreover, post-trial insights from the state’s presentation here instructs the state buried the complaining witness, calling her after five “other act” witnesses and before the sixth, just to clear up any lingering doubts – certainly a signal how weak the state’s case should have been and will be on remand if balancing had been conducted in accord with Baughman and Mayfield, and the “other acts” evidence excluded.

Defendant is aware that this court has considered and rejected earlier arguments that on remand a trial court called upon to re-evaluate and re- balance, after a trial in which the strategy was dictated by earlier rulings, is an inadequate remedy for the due process violation because i) the remedy of a limited remand for a hearing transforms the forward-looking nature of OEC 403 into Monday morning quarterbacking; ii) the trial court’s initial decision to 33 admit, exclude, or admit only part of uncharged misconduct evidence likely affected the defendant’s trial strategy and tactical decisions about how to try a case, earlier-chosen tactical decisions, and arguments as to limiting instructions, and whether a defendant might choose to testify; and iii) when the trial court conducts post-trial OEC 403 balancing, it does so against the backdrop of a trial where the evidence was admitted and the defendant convicted, so there is an undue risk the trial judge will be invested in the original result.

Defendant submits that in this unique case, retroactive balancing is not consistent with due process for several reasons. First, as described above, the unlawful sexual penetration charges stand alone without any sexual abuse or sexual touching charges – not only a highly unusual situation, but one where there are no nonpropensity reasons to offer evidence of sexual intent or sexual disposition for which “other acts” evidence are most often received.

Second, the “other acts” evidence is truly only relevant here for propensity, and Williams instructs that when that is the case, the scales are tipped towards inadmissibility. Hundreds of years of our legal tradition dictate so, too, as discussed infra.

Third, to the extent that propensity is allowed, such evidence standing alone violates due process as discussed infra.

Fourth, because the complainant disclosed sexual abuse relatively contemporaneously with the alleged but not charged sexual abuse, and again a 34 couple of years later to a deputy district attorney, but sexual penetration was not mentioned in either instance, this is decidedly not a late disclosure case for which the state might argue “other acts” evidence might be offered to explain context. The true context here, and likely defense once all “other acts” evidence is rightly excluded, is to not contest the sexual touching, have the defendant not testify or give extremely limited testimony, and contest the state’s case on the implausibility that penetration evidence at the same time touching was initially disclosed would have been withheld, then a disclosure of four events in 2014, then followed a vast number of them just a short time later at trial – 24 a year over six to seven years.

Finally, there is an undue risk that the trial judge, “Monday morning quarterbacking,” looking down at the face of a community of “other acts” witnesses and their supporters, as well as the throng of press cameras,13 will face pressure and not give due process adequate consideration. In the context of a similar limited-remand approach for resentencing, Judge Ripple of the

Seventh Circuit observed that such an approach:

“In all too many instances * * * will serve as an invitation for the district court to give only a superficial look at the earlier unconstitutionally- imposed sentenced. The constitutional right at stake hardly is vindicated by a looks-all-right-to-me assessment of a busy district court.”

United States v. Paladino, 401 F3d 471, 486 (7th Cir 2005) (Ripple, J.,

13 The prosecution had significant press coverage in Oregon Live, with not less than 38 hits on the Oregon Live website alone.

35 dissenting).

Finally, since this case is the anomaly, a “unicorn” case, realistically it will not open the floodgates to other defendants making similar claims for new trial on remand, or if they do, they can be summarily dismissed without discussion.

7. The admission of “other acts” evidence deprived Defendant of a Fair Trial in Violation of the Federal Due Process Clause.

As defendant respectfully submits here, this Court should reach that reserved in Williams and reserved by the United States Supreme Court -- whether an evidentiary rule would violate due process if it permitted the use of

“prior crimes” evidence, outside of OEC 404(3) categories relevant to trial issues, to prove a defendant’s propensity to commit a charged crime. 357 Or at

16-17, citing Estelle v. McGuire, 502 US 62, 75 n5, 112 S Ct 475, 116 L Ed2d

385 (1991).14

The general ban on propensity evidence15 has a long and unbroken history in the Anglo-American legal tradition. In fact, it is at least a century

14 Williams also recognized two state supreme courts have held admission of propensity evidence would violate their respective state constitutions. Id. at n15; See State v. Cox, 781 NW2d 757, 767-78 (Iowa 2010) (fundamental fairness); State v. Ellison, 239 SW3d 603, 606 (Mo 2007), superceded by Constitutional Amendment, State v. Williams, 548 SW3d 275, 280 (2018).

15 Defendant uses the phrases “propensity evidence” and “character evidence” interchangeably. By those terms, he refers to evidence that is 36 older than the “beyond a reasonable doubt” standard. See In re Winship, 397 US

358, 361, 90 S Ct 1068, 25 L Ed 2d 368 (1970) (recognizing that the reasonable doubt standard may have not have crystalized into that formula until 1798). The propensity evidence ban can be traced back to at least 1684 in the case

Hampden’s Trial, 9 Cob St Tr 1053 (KB 1684). In that case, Justice Withins of the King’s Bench noted that in an earlier case, the King’s Bench had excluded evidence of a defendant’s prior forgeries during his trial for forgery. Id., at

1103. Several years later, in 1692, the Lord Chief Justice Holt at the Old Bailey excluded propensity evidence in a murder prosecution in Harrison’s Trial, 12

How St Tr 834, 864 (Old Bailey 1692). When the prosecution attempted to offer the propensity evidence, Justice Holt interjected,

“Hold, what are you doing now? Are you going to arraign his whole life? Away, away, that ought not to be; that is nothing to the matter.” Id.

The general ban on character evidence crossed the Atlantic and persisted in colonial courts prior to the American Revolution. For example,

Massachusetts’ highest court excluded evidence of a defendant’s prior acts of

admitted for the sole purpose of demonstrating a defendant’s character, and that he acted in conformity with that character on a particular occasion. That use is consistent with this court’s use of “character evidence” in State v. Johns, 301 Or 535, 548, 725 P2d 312 (1986) (noting that “character” means a “disposition or propensity to commit certain crimes, wrongs, or acts.”); see also Christopher B. Mueller & Laird C. Kirkpatrick, Modern Evidence § 4.11 (1995) (as used in federal rules, “character” means “a person’s disposition or propensity to engage or not engage in various forms of conduct”).

37 lasciviousness to bolster the state’s allegation that the defendant was operating a bawdy house. Rex v. Doaks, Quincy’s Mass 90 (Mass Super Ct 1763).

Subsequently, in 1892, the United States Supreme Court condemned the use of propensity evidence for the first time in Boyd v. United States, 142 US 450, 12

S Ct 292, 35 L Ed 1077 (1892). The defendants in Boyd were charged with murder following an attempted robbery. Id. The trial court permitted the state to introduce evidence of prior robberies committed by the defendants. Id., at 454.

The Court reversed, holding that the propensity evidence should not have been admitted because it “tended to prejudice the defendants with the jurors, to draw their minds away from the real issue, and to produce the impression that they were wretches whose lives were of no value to the community, and who were not entitled to the full benefit of the rules prescribed by law[.]” Id., at 458.16

16 In People v. Molineux, 6 Bedell 264, 168 NY 264, 61 NE 286, 293-94 (NY 1901), the New York Court of Appeals articulated the historical significance of the character evidence ban:

“This [no propensity evidence] rule, so universally recognized and so firmly established in all English-speaking lands, is rooted in that jealous regard for the liberty of the individual which has distinguished our jurisprudence from all others, at least from the birth of the Magna Charta. It is the product of that same humane and enlightened public spirit which, speaking through our , has decreed that every person charged with the commission of a crime shall be protected by the presumption of innocence until he has been proven guilty beyond a reasonable doubt.” 38 One year after Boyd, this court recognized the ban on propensity evidence in State v. Baker, 23 Or 441, 32 P 161 (1893):

“The general rule is unquestioned that evidence of a distinct crime unconnected with that laid in the indictment cannot be given in evidence against the prisoner. Such evidence tends to mislead the jury, creates a prejudice against the prisoner, and requires him to answer a charge for the defense of which he is not supposed to have made preparation. And while, as Lord Campbell says, ‘it would be evidence to prove that the prisoner is a very bad man, and likely to commit such an offense,’ (Reg v. Oddy, 5 Cox Crim Cas 210) under no enlightened system of jurisprudence can a person be convicted of one crime on proof that he has committed another. It is of the utmost importance to a defendant that the facts given in evidence by the prosecution shall consist exclusively of the transaction which forms the subject of the indictment, and which he has come prepared to answer.”

Id., at 442-43; see also State v. Houghton, 43 Or 125, 131, 71 P 982 (1903)

(recognizing ban on propensity evidence as “a universal rule of law.”).

As the United States Supreme Court recognized in Michelson v. United

States, 335 US 469, 69 S Ct 213, 93 L Ed 168 (1948), propensity evidence is rejected not because character is irrelevant. Id., at 475-76. Instead, “it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general character.”

The rule generally forbidding the admission of character evidence to prove propensity has been codified in 38 states.17 The remaining 12 states and

17 See Alaska R Evid § 404; Ariz R Evid 404; Ark R Evid 404; Cal Evid Code § 1101; Colo R Evid 404; Del R Evid 404; Fla Stat §90.404; Haw R Evid 404; Idaho R Evid 404; Iowa R Evid 404; Kan Stat Ann § 60-447; Ky R Evid 404; La Code Evid Ann Art 404; Me R Evid 404; Mich R Evid 404; 39 the District of Columbia have adopted the rule against the general admissibility of propensity evidence through case law.18 Still some jurisdictions have a narrow exception to the ban on propensity evidence and allow the admission of prior similar acts of sexual assault in a sexual assault prosecution.19

Minn R Evid 404; Miss R Evid 404; Mont R Evid 404; Neb Rev Stat § 27-404; Nev Rev Stat § 48.045; NH R Evid 404; NJ R Evid 47; NM Stat Ann § 11-404; NC Gen Stat § 8c-1, Rule 404; ND R Evid 404; Ohio R Evid 404; Okla Stat title §12, 2404; RI R Evid 404, SD Codified Laws Ann § 19-12-5; Tenn Rev Evid 404; Tex R Crim Evid 404; Utah R Evid 404; Vt R Evid 404; Wash R Evid 404; W Va R Evid 404; Wis R Evid 904.03; Wyo R Evid 404.

With respect to California’s rule concerning prior bad acts, Cal Evid Code § 1101, that in 1982, California voters amended the state constitution to provide, in relevant part, that “Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding[.]” Cal Const Art I, § 28(d). In 1994, the California Supreme Court directly addressed that constitutional provision for the first time and held that a 1986 amendment to Cal Evid Code § 1101 constituted the required legislative override of Cal Const Art I, § 28(d). People v. Ewoldt, 867 P2d 757, 763 (Cal 1994). The general prohibition on propensity evidence therefore remained in effect. Id.

18 See Artis v. United States, 505 A.2d 52 (DC App 1986), cert den, 479 US 964 (1986); Anonymous v. State, 507 So 2d 972 (Ala 1987); State v. Holliday, 268 A2d 368 (Conn. 1970); Brown v. State, 398 SE2d 34 (Ga App 1990); People v. Kannapes, 567 NE2d 377 (Ill 1990); Penley v. State, 506 NE2d 806 (Ind 1987); Ross v. State, 350 A2d 680 (Md 1976); Commonwealth v. Chalifoux, 291 NE2d 635 (Mass 1973); State v. Clark, 801 SW2d 701 (Mo App 1990); People v. Powell, 152 AD2d 918 (NY 1989); Commonwealth v. Lark, 543 A2d 491 (Pa. 1988); State v. Griffin, 285 SE2d 631 (SC 1981), overruled on other grounds by State v. Belcher, 685 SE2d 802 (SC 2009); Brooks v. Commonwealth, 258 SE2d 504 (Va 1979).

19 Federal Rules of Evidence (FRE) 413-14 allow the prosecutor to introduce the defendant’s prior similar acts in rape and child sexual assault cases. The evidence may be considered on any matter to which it is logically relevant, including propensity. FRE 413-14. Twelve states have adopted 40 8. The Historical Evidence Supporting Exclusion of Propensity Evidence is Compelling.

As discussed supra, United States courts have demonstrated a steadfast commitment to its exclusion since the late 1600s. In Michelson, the Supreme

Court observed that “[c]ourts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil character to establish a probability of his guilt.”

335 US at 475-76. On that basis, “it seems clear that the general ban on propensity evidence has the requisite historical pedigree to qualify for

similar rules. Alaska R Evid 404(b)(2)-(3); Ariz R Evid 404(c); Cal Evid Code § 1108; Fla Stat Ann § 90.404(2)(b)-(c); Ga Code Ann. § 24-4-413; 725 Ill Comp Stat Ann. 5/115-7.3; Kan Stat Ann § 21-5502; LSA-CE Art 412.2; Mich Comp Laws Ann § 768.27a; Neb Rev Stat §27-414; Tex Crim Proc Code Ann §38.37; Utah R Evid 404(c).

Five more states passed similar legislation, but their state Supreme Court declared the rules unconstitutional on state grounds. See State v. Gresham, 269 P3d 207 (Wash 2012) (holding Washington analogs to FRE 413-414 unconstitutional because they govern a procedural matter, conflict with a court rule, and therefore violate separation of powers); State v. Cox, 781 NW2d 757 (Iowa 2010) (holding analogous Iowa statues unconstitutional on the grounds that they violate state due process clause); State v. Ellison, 239 SW3d 603 (Mo. 2007) (holding analogous Missouri statutes unconstitutional because they violate a defendant’s state constitutional right to be tried only for crimes for which he was indicted), superceded by Const.Amend., State v. Williams, 548 SW3d 275, 280 (2018). The Indiana legislature passed rules similar to FRE 413-14 but the Indiana Supreme Court held the statutes to be a nullity because they conflicted with evidence rules promulgated by the state Supreme Court, which has exclusive authority over rules of evidence. See Day v. State, 643 NE2d 1 (Ind Ct App 1994). Lastly, the Delaware Supreme Court rejected similar rules. See Thomas J. Reed, The Re-Birth of the Delaware Rules of Evidence: A Summary of the 2002 Changes in the Delaware Uniform Rules of Evidence, 5 Del L Rev 155, 166-75 (2002). 41 constitutional status.” United States v. LeMay, 260 F3d 1018, 1026 (9th Cir

2001), cert den, 534 US 1166, 122 S Ct 1181, 152 L Ed2d 124 (2002).

In LeMay, the Ninth Circuit addressed whether FRE 414, which allows for the admission of a defendant’s prior acts of child molestation in a trial for child molestation, violates the Due Process Clause. 260 F3d 1018. The court first observed that although the general ban on propensity evidence has such a protracted history as to qualify for due process protection, the history of character evidence involving a criminal defendant’s sexual propensity is more nuanced as rules relating to admissibility of prior acts are more relaxed and perhaps ambiguous, id. at 1025-1026, and penultimately allowed admission of such with careful FRE 403 balancing. Id., at 1031.

9. The Constant use of “Victim” at Trial Constituted Improper Vouching and Invaded the Provence of the Jury.

The presumption of innocence of the defendant in a criminal action is a bedrock concept of . It is enshrined in ORS 136.415 (“A defendant in a criminal action is presumed to be innocent until the contrary is proved.”), and springs forth from the Due Process Clause of the 14th Amendment to the

United States Constitution. “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement at the of the administration of our criminal law.” Coffin v United States, 156 US 432, 453, 5 S Ct 39439 L Ed

481 (1895); see also In re Winship, 397 US 358, 364, 90 S Ct 106, 825 L Ed2d 42 368 (1970)(“Due process commands that no man shall lose his liberty unless the Government has borne the burden of … convincing the factfinder of his guilt.”).

References to complainant and other witnesses to uncharged “other crimes” evidence at trial as “victims” undercuts the presumption of innocence and constitutes impermissible vouching. Use of this term in this case was especially problematic as it was a credibility case and at issue was whether the crimes of unlawful sexual penetration occurred at all, but overshadowing the entire case was admission of extensive uncharged “other acts” evidence.

Calling the complaining witness and uncharged “other acts” witnesses

“victims” created the presumption the charged crimes and many, many untold others occurred, and that those who used the term, including the prosecutor, detective and other witnesses all believed and vouched for complainant.

“Vouching” is an issue consistently re-visited in our state’s courts, see e.g. Woods v. Franke, 285 Or App 28, 37, 395 P3d 886, rev den, 362 Or 94, 405

P3d 155 (2017) (counsel not ineffective for strategic decision to not object);

Alne v. Nooth, 288 Or App 307, 319, 406 P3d 109 (2017) (ineffective assistance for failure to object to vouching by child interviewer); and State v. Chandler,

360 Or 323, 334, 380 P3d 932 (2016) (vouching prohibitions apply to out-of- court statements, here interrogation). This is irrespective that this court has long held vouching improper, State v. Middleton, 294 Or 427, 438, 657 P3d 43 1215 (1983); State v. Brown, 297 Or 404, 443, 687 P2d 751 (1984) (rule prohibiting witness from passing upon credibility of another witness is “the long-standing position of this court”). That principle extends beyond clear, overt statements about the honesty of a witness or a nonwitness complainant.

State v. Lupoli, 348 Or 346, 357, 463-65, 234 P3d 117 (2010) (“statements that fall short of such overt vouching also may be impermissible;” holding expert testimony vouched for credibility of nonwitness complainant).

Here, the prosecutor, the 1997 case detective, the 2013-2014 case detective, the state’s expert witness trained as a child abuse interviewer and therapist, and many other witnesses referred to complainant and “other acts” witnesses in this fashion, or otherwise constantly interjected the courtroom with an endemic “victim-centric” atmosphere, usurping the trier of fact.

The trial court certainly erred by allowing incessant vouching at trial, and defendant respectfully suggests this court cannot find the error harmless. A harmless error is one what has “little likelihood” of affecting the verdict.

Inconsistent rulings occur at the trial level with regard to the use of the term “victim” before the trial of fact, and the appellate courts have not yet weighed in on this issue, creating uncertainty and inconsistency throughout the court system. State v. Keller, 315 Or 273, 285, 844 P2d 195 (1993) (so defining harmlessness; reversing conviction where physician testified complainant was credible). In this case, there was no physical evidence of 44 abuse, the complainant’s credibility, like in Lupoli, (reversing conviction based on vouching by social worker and “play therapist), was therefore, was paramount. In cases that in boil down, in large part, to a credibility contest, evidence commenting on the credibility of either is likely to be harmful. State v. Higgins, 258 Or App 177, 182, 308 P3d 352 (2013), rev den, 354 Or 700319

P3d 697 (2014) (reversing on plain error review vouching by rape complainant’s mother); State v. Lowell, 249 Or App 364, 277 P3d 588, rev den,

352 Or 378, 290 P3d 814 (2012) (reversing on plain error review vouching by detective).

Similarly here, defendant respectfully submits this court cannot conclude that there was “little likelihood” that the vast vouching here did not affect the verdict.

CONCLUSION

For all of the reasons discussed above, defendant respectfully prays this

Court reverse and remand for a new trial, or in the alternative, for re-balancing.

This 24th day of August, 2018.

__s/Steven J. Sherlag ______Steven J. Sherlag, 931034 Attorney for Petitioner on Review Defendant Michael George Sperou COMBINED CERTIFICATE OF COMPLIANCE WITH BRIEF LENGTH AND TYPE SIZE REQUIREMENTS, AND CERTIFICATES OF FILING AND SERVICE

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STEVEN J. SHERLAG, OSB# 931034 Attorney for Petitioner on Review, Defendant Michael George Sperou

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DATED: August 24, 2018 s/ Steven J. Sherlag

STEVEN J. SHERLAG, OSB# 931034 Attorney for Petitioner on Review, Defendant Michael George Sperou