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IN the SUPREME COURT of the STATE of OREGON STATE of OREGON, Plaintiff-Respondent, Respondent on Review, V

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IN the SUPREME COURT of the STATE of OREGON STATE of OREGON, Plaintiff-Respondent, Respondent on Review, V 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 Law ............................................. 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” Evidence, 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” Testimony, 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)
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