State v. Johnson , 311 Or. App. 111 ( 2021 )

111
Submitted January 15, 2019; convictions on Counts 1 through 10 reversed,
convictions on Counts 13, 16, and 17 reversed and remanded, remanded for
resentencing, otherwise affirmed May 5, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
CALEB JAMES LEE JOHNSON,
aka Caleb Jamelee Johnson,
Defendant-Appellant.
Multnomah County Circuit Court
16CR25479; A164500
489 P3d 1046
Defendant appeals a judgment of conviction for five counts of first-degree
sodomy, ORS 163.405, and five counts of first-degree sexual abuse, ORS 163.427,
stemming from defendant’s alleged sexual abuse of his stepdaughter. On appeal,
defendant contends that the trial court erred in (1) denying his motion for judg-
ment of acquittal (MJOA) as to Counts 1 through 16 and Count 18 because the
state failed to sufficiently corroborate his confessions as required under ORS
136.425(2); (2) instructing the jury that its verdicts need not be unanimous;
(3) submitting a jury verdict form that allowed for nonunanimous verdicts; and
(4) receiving nonunanimous jury verdicts. The state concedes that the court
erred by receiving nonunanimous verdicts and by denying defendant’s MJOA as
to Counts 1 through 11, but argues that the court properly denied the MJOA
on the remaining counts because the child victim’s disclosure sufficiently cor-
roborated defendant’s confessions pertaining to those counts. Held: The Court
of Appeals accepted the state’s concessions. However, the trial court properly
denied defendant’s MJOA as to Counts 12 through 16 and Count 18 because the
child victim’s disclosure sufficiently corroborated defendant’s confessions relat-
ing to those counts. Of the counts remaining, the verdicts on Counts 13, 16, and
17 were nonunanimous and those convictions must be reversed and remanded.
Defendant’s challenge to the nonunanimous jury instructions as to the unani-
mous verdicts is foreclosed by State v. Flores Ramos, 367 Or 292, 334, 478 P3d
515 (2020).
Convictions on Counts 1 through 10 reversed; convictions on Counts 13, 16,
and 17 reversed and remanded; remanded for resentencing; otherwise affirmed.
Kathleen M. Dailey, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Joshua B. Crowther, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jacob Brown, Assistant Attorney
General, filed the brief for respondent.
112 State v. Johnson
Before DeHoog, Presiding Judge, and DeVore, Judge, and
Aoyagi, Judge.
DeHOOG, P. J.
Convictions on Counts 1 through 10 reversed; convictions
on Counts 13, 16, and 17 reversed and remanded; remanded
for resentencing; otherwise affirmed.
Cite as 311 Or App 111 (2021) 113
DeHOOG, P. J.
Defendant appeals a judgment of conviction for five
counts of first-degree sodomy, ORS 163.405, and five counts
of first-degree sexual abuse, ORS 163.427. Defendant raises
19 assignments of error and 12 supplemental assignments
of error, contending that the trial court erred in (1) denying
his motion for judgment of acquittal as to Counts 1 through
16 and Count 18; (2) instructing the jury that its verdicts
need not be unanimous; (3) submitting a jury verdict form
that allowed for nonunanimous verdicts; and (4) receiving
nonunanimous jury verdicts as to Counts 3, 5, 6, 7, 8, 10,
13, 16, 17, and 18. For the reasons that follow, we agree with
some, but not all of defendant’s contentions. We agree, as the
state concedes, that the trial court erred in denying defen-
dant’s motion for judgment of acquittal on Counts 1 through
11, and, except for Count 11, reverse as to those counts.1 The
trial court did not, as defendant contends, err in denying his
motion for judgment of acquittal as to Counts 12 through
16 or Count 18, and defendant did not move for a judgment
of acquittal on Count 17; however, we reverse and remand
his convictions on Counts 13, 16, and 17 because the jury’s
verdicts on those counts were not unanimous.2 We otherwise
affirm.3
We first consider defendant’s arguments regarding
his motion for judgment of acquittal because they are dis-
positive as to a number of counts. Defendant’s first through
seventeenth assignments of error contend that the trial
court erred in declining to acquit him on Counts 1 through
16 and Count 18. Defendant contends that the state failed to
produce evidence sufficient to corroborate his confessions as
1
The jury acquitted defendant on Count 11, and, therefore, there is no con-
viction to reverse.
2
The trial court also erred in accepting a nonunanimous verdict on Count
18. However, the court merged that verdict with the jury’s verdict on Count 15,
for which the jury’s verdict was unanimous. As a result, there is no conviction on
Count 18 for us to reverse.
3
Defendant also argues that the trial court erred by failing to merge the
guilty verdicts on Counts 12 and 13, as well as the guilty verdicts on Counts
15 and 16. Because Counts 13 and 16 are reversed and remanded pursuant to
Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020), and a
different record may well be produced if there is a new trial, we do not address
defendant’s merger arguments.
114 State v. Johnson
to those counts, as required under ORS 136.425(2), because
the state’s evidence did not tend to establish that those
crimes had been committed. The state concedes that the
trial court erred in denying defendant’s motion for judgment
of acquittal on Counts 1 through 11. On Counts 12 through
16 and Count 18, however, the state argues that the court
correctly denied the motion because the child victim’s disclo-
sure sufficiently corroborated defendant’s confessions as to
those counts.
“When reviewing the denial of a motion for judg-
ment of acquittal, we view the evidence in the light most
favorable to the state and determine whether a rational fact
finder could have inferred that the state had proven all of
the essential elements of the charged crime beyond a reason-
able doubt.” State v. Nickles, 299 Or App 561, 562, 451 P3d
624 (2019). However, in determining whether the state has
met that burden, we may consider evidence of a defendant’s
confession only if the confession is supported by legally suffi-
cient corroborating evidence. Id. We state the relevant facts
with those standards in mind.
In April 2016, defendant was married to Johnson
and lived with her and Johnson’s three-year-old daughter, B.
On the evening of April 27, 2016, while defendant was at
work, B disclosed to Johnson that B had “had to put [her]
mouth on daddy’s pee-pee.” Johnson asked B whether she
was referring to defendant, and B said, “Yes.” Johnson
asked B when this had happened, and B responded, “Before
school.” Johnson asked B what she had done, to which B
replied, “So I finished it.” Finally, Johnson asked B how she
had felt about that, and B answered, “I didn’t like it.” B also
told Johnson, “Daddy said that mommy does it, so I have to
do it.”
After putting B to bed for the evening, Johnson
called defendant on his cell phone and confronted him
with what B had told her. When Johnson asked defendant
whether B’s statements were true, defendant replied, “Yes,”
and, “Can we talk about it?” The next day, defendant told
Johnson that it had “happened more than once” and that,
“the farthest it had [gone] was having [B] put her mouth
on his penis and a little of rubbing up * * * in between her
Cite as 311 Or App 111 (2021) 115
legs.” During their conversation, defendant told Johnson
that it had been going on since the beginning of that year
and expressed regret and remorse.
Johnson filed a report with the police and also
notified the pastor of the church that she and defendant
attended. Sometime thereafter, defendant sent a message
to the pastor and another church member that said, “Hey,
guys. I don’t know how you are feeling about me right now,
but I’m scared. I feel lost. I don’t know what to do. My life as
I know it, is over, but not just mine. I have ruined [Johnson]
and [B’s] lives as well. I am just hurting so bad right now
and I don’t know how I will forgive myself. I feel all alone.”
On April 29, defendant went to the police station
and gave a detailed confession to Detective Gandy. Defen-
dant confessed to having sexually assaulted B on sev-
eral occasions beginning in February of that year, during
which he had placed B’s hands on his penis and rubbed his
penis against her backside, between her legs, and against
her vagina. Defendant told Gandy that each incident had
occurred in the morning, while he was getting B ready for
school. Defendant explained that his behavior had escalated
one morning in April, when he had pulled out his penis and
asked B to put it in her mouth. Defendant said that B had
placed her lips on his penis for about 10 seconds before pull-
ing away. B told defendant that she did not like it and did
not want to do it. At that point, defendant told B, “it’s okay
’cause mommy does it,” and he put his penis in B’s mouth for
10 to 20 seconds. Defendant told Gandy that he then left B
in her bedroom and went to the bathroom alone.
Defendant next told Gandy about another incident
in April, during which he had again asked B to put his penis
in her mouth, and said that on that occasion she had ini-
tially done what he asked. When B then pulled defendant’s
penis out of her mouth and said, “I don’t like it, Daddy,”
defendant told her, “Okay. Just a little bit more and you don’t
have to do it again,” and put his penis back in her mouth. At
some point, B said, “I don’t want to anymore,” and defendant
replied, “Okay, baby. I just * * * have to finish and then we
can go to school.” Defendant told Gandy that, at that point,
he had taken B into the bathroom with him and “finished
116 State v. Johnson
himself off.” After masturbating, defendant “asked her if she
would lick” his penis. B said that she did not want to, and
defendant replied, “Okay baby. You don’t have to if you don’t
want to, but could you just do it just one time, just a little
bit?” B touched the tip of defendant’s penis with her tongue
and then pulled away.
As a result of B’s disclosures and defendant’s confes-
sions, defendant was ultimately charged by indictment with
18 counts of first-degree sexual abuse and first-degree sod-
omy. At defendant’s ensuing trial, the prosecution explained
in closing arguments that each of the 18 counts corresponded
to the acts described in defendant’s confession to Gandy.
Counts 1 through 11 corresponded to the earlier incidents in
which defendant confessed to having had B touch his penis
with her hand and having rubbed his penis on various parts
of her body. Based on defendant’s confession to that conduct,
he was charged with 11 counts of first-degree sexual abuse
alleged to have occurred from about February 1 to April 1.
However, on appeal, the state acknowledges that B’s disclo-
sure did not refer to any such contact; furthermore, the state
offers no other theory of corroboration as to those charges.
The state therefore concedes that defendant’s confession
is uncorroborated with respect to the offenses charged in
Counts 1 through 11 and that defendant is entitled to an
acquittal on those counts. We agree and accept the state’s
concession.
We turn to whether there was sufficient corrobo-
rating evidence with respect to Counts 12 through 16 and
Count 18. Counts 12 through 18 arose from the last two
incidents described above, which, according to defendant,
had occurred in April, and are alleged in the indictment as
having occurred on April 15 and April 27, respectively. The
first of those incidents (alleged to have occurred on or about
April 15) gave rise to charges of one count of first-degree
sodomy (Count 12) for defendant having put his penis in B’s
mouth the first time, a second count of first-degree sodomy
(Count 13) for having put his penis in her mouth a second
time, and one count of first-degree sexual abuse (Count 14)
for having caused B to have sexual contact with his penis.
The second incident (alleged to have occurred on or about
April 27), resulted in three counts of first-degree sodomy
Cite as 311 Or App 111 (2021) 117
(Counts 15 through 17), the first two for defendant having
placed his penis in B’s mouth and the third count for hav-
ing put his penis back into her mouth after masturbating,
as well as one count of first-degree sexual abuse (Count
18), again for having caused B to have sexual contact with
his penis.
At issue in this case is whether defendant’s confes-
sions regarding the two April incidents were sufficiently cor-
roborated to support defendant’s convictions resulting from
those incidents. ORS 136.425(2) provides, in part, that “a
confession alone is not sufficient to warrant the conviction
of the defendant without some other proof that the crime has
been committed.” (Emphasis added.) As the Supreme Court
has explained, that statute codifies the common-law “corpus
delicti rule.” State v. Chatelain, 347 Or 278, 283, 220 P3d
41 (2009). “The corpus delicti rule requires us to determine
whether, absent defendant’s confession, there was legally
sufficient corroborating evidence from which the jury could
‘draw an inference that tends to prove’ that (1) ‘the injury or
harm specified in the crime occurred’ and (2) that ‘this injury
or harm was caused by someone’s criminal activity.’ ” State
v. Moreno, 276 Or App 102, 108, 366 P3d 839, rev den, 359 Or
525, cert den, 137 S Ct 342 (2016) (quoting State v. Lerch, 296
Or 377, 393-94, 677 P2d 678 (1984)). The threshold for cor-
roboration is low; it does not require substantial evidence,
clear and convincing evidence, or proof beyond a reasonable
doubt. Moreno, 276 Or App 102. “The statute only requires
that the state introduce independent evidence that tends to
establish the corpus delicti.” Lerch, 296 Or at 394 (emphasis
added); see also State v. Hernandez, 256 Or App 363, 367-68,
300 P3d 261, rev den, 353 Or 868 (2013) (“To be sure, a jury
could conclude that the evidence was insufficient to convict
defendant of sexual abuse of S. Nevertheless, in order for
that issue to go to the jury, the state was only required to
submit enough evidence from which a rational trier of fact
could draw an inference that tends to show that the charged
crimes occurred.” (Emphasis in original.)).
Defendant acknowledges that an allegation by a
child victim that she has been sexually abused is “ ‘some
other evidence’ sufficient to corroborate the confession of
[a] defendant.” State v. Campbell, 299 Or 633, 647, 705 P2d
118 State v. Johnson
694 (1985) (a “complaint from a three-year-old that a person
‘licked her tee-tee’ is certainly ‘some other evidence’ ”); see
also State v. Shelton, 218 Or App 652, 180 P3d 155, rev den,
345 Or 318 (2008) (child victim’s disclosure that defendant
liked it when she grabbed his genital area and that the
defendant had touched her vagina, as well as testimony that
the victim had been engaging in unusual sexual behavior,
corroborated defendant’s confession to two counts of first-
degree sexual abuse). Defendant contends, however, that,
in his case, B’s disclosure to Johnson corroborated only a
single act of sodomy, specifically Count 17, and not “multiple
other acts or an unlimited number of other confessions.” 4
To support his argument, defendant emphasizes that B told
Johnson that, before school, she had “had to put [her] mouth
on daddy’s pee-pee.” Defendant reasons that, because that
disclosure occurred on April 27, the same day that the last
incident was alleged to have occurred, it most likely refers
only to a single act of sodomy that occurred on that specific
date, namely, Count 17. According to defendant, “[n]othing
about the victim’s statement could reasonably be interpreted
to infer that the victim was corroborating multiple acts.”
The state, on the other hand, contends that B’s dis-
closure that she had to put her mouth on defendant’s penis
corroborated the corpus delicti of all the acts of first-degree
sodomy and first-degree sexual abuse charged in Counts
12 through 18. Moreover, focusing on the details of B’s dis-
closure, the state contends that B’s disclosure necessarily
referred to more than one incident. That is, the state rea-
sons that B’s disclosure about defendant telling her that
“mommy does it” was in reference to the April 15 incident,
in which defendant confessed to telling B, “it’s okay ’cause
mommy does it.” Similarly, the state contends that B’s dis-
closure about the fact that she “finished it,” referenced the
4
Defendant also argues that his statements to Johnson and the text mes-
sages that he sent to members of his church acknowledging his guilt are them-
selves confessions and therefore cannot corroborate his confessions to Gandy.
The state, in response, maintains that we “need not determine whether the text
messages and statements are sufficient to corroborate defendant’s confession
because the child victim’s disclosure was sufficient.” Because the state advances
no argument that those other statements corroborate defendant’s confessions
regarding the April 16 and April 27 incidents, we assume—without necessarily
deciding—that they are insufficient for that purpose and only address whether
B’s disclosure sufficiently corroborates those confessions.
Cite as 311 Or App 111 (2021) 119
later April 27 incident, in which defendant confessed to tell-
ing B, “Okay, baby. I just * * * have to finish and then we can
go to school.”
We have no difficulty concluding—as defendant
concedes—that the state presented legally sufficient evi-
dence from which the jury could draw an inference that
tended to prove that at least one act of sodomy occurred. The
corpus delicti for a first-degree sodomy charge is that a per-
son engaged in “deviate sexual intercourse” with the alleged
victim or caused the alleged victim to engage in such acts.
State v. Delp, 218 Or App 17, 29, 178 P3d 259, rev den, 345 Or
317 (2008); ORS 163.405 (2015), amended by Or Laws 2017,
ch 318, § 5.5 “ ‘Deviate sexual intercourse’ means sexual con-
duct between persons consisting of contact between the sex
organs of one person and the mouth or anus of another.” ORS
163.305(1) (2015), amended by Or Laws 2017, ch 634, § 17.
The state presented evidence of the child victim’s disclosure
that she had had to put her mouth on defendant’s “pee-pee.”
Recognizing the sufficiency of the evidence to prove at least
one count of first-degree sodomy, defendant, as noted, does
not challenge Count 17, alleging that offense. The question
defendant’s appeal raises is whether B’s disclosure that she
had to put her mouth on defendant’s “pee-pee” was sufficient
to corroborate his confessions to four more counts of sod-
omy and two corresponding counts of sexual abuse alleged
to have occurred over the course of two separate incidents.
We conclude that it was.
In short, we are unpersuaded by defendant’s argu-
ment that nothing about B’s disclosure could reasonably
be interpreted as supporting an inference that she had
been subject to oral contact with defendant’s penis multi-
ple times. As noted, the threshold for corroboration is low.
All that is required is that the state present evidence that
permits a reasonable inference that each crime to which
5
Since defendant’s indictment, the first-degree sodomy statute has been
amended to say, in relevant part, that “[a] person who engages in oral or anal
sexual intercourse with another person or causes another to engage in oral
or anal sexual intercourse commits the crime of sodomy in the first degree
if: (b) The victim is under 12 years of age[.]” ORS 163.405(1)(b) (emphases added).
That change in the statutory definition of sodomy replacing the phrase “deviate
sexual intercourse” has no apparent bearing on our case law applying the sodomy
statute or the outcome of this case.
120 State v. Johnson
defendant confessed did, in fact, occur. State v. Fry, 180 Or
App 237, 246, 42 P3d 369 (2002). B’s statement to Johnson
was that she had “had to put [her] mouth on daddy’s pee-
pee” and that it had happened “before school.” While B’s dis-
closure may, in the abstract, be viewed as referring to only
a single act, when viewed in the light most favorable to the
state, B’s statement permits a reasonable inference that it
could refer to multiple instances. Cf. Fry, 180 Or App at 246(disclosure by child victim that defendant had touched her
genitalia with his “thinger” or his “pee-pee” and that it had
hurt was insufficient “other proof” to establish more than
one instance of penetration, when child had also said that
defendant had done so only once).
Here, B’s disclosure to Johnson did not limit the
number of times or occasions on which she had had to put her
mouth on defendant’s penis. That is, B did not tell Johnson
that it had happened once, as opposed to repeatedly, nor did
she indicate to Johnson that, by saying that it had happened
“before school,” she meant that it had only happened before
school on the specific day of her disclosure. Thus, although
we disagree with the state’s contention that B’s disclosure
on its own necessarily referred to multiple instances, we
conclude that her disclosure could be understood in that
manner. To be sure, a jury might reasonably find that evi-
dence insufficient to convict defendant of multiple counts.
However, “for that issue to go to the jury, the state was only
required to submit enough evidence from which a rational
trier of fact could draw an inference that tend[ed] to show
that the charged crimes [had] occurred.” Hernandez, 256 Or
App at 367-68 (emphasis in original).
The evidence of B’s disclosure met that standard.
That is particularly true given that parts of B’s disclosure
appear to correspond to two unique statements that defen-
dant admitted to having made while sexually abusing B and
that, according to defendant, he had made on two separate
days. Specifically, B told Johnson that, “Daddy said that
mommy does it, so I have to do it.” That part of B’s disclo-
sure could be viewed as referring to defendant’s statement,
“it’s okay ’cause mommy does it,” which defendant admit-
ted to having made to B during the first of the two sodomy
incidents in April. B also said to Johnson, “So I finished it.”
Cite as 311 Or App 111 (2021) 121
That statement, in turn, arguably relates to the statement
defendant admitted to having made during the second sod-
omy incident, namely, “Okay, baby. I just * * * have to finish
and then we can go to school.” That evidence was sufficient
to permit the jury to find that the offense of sodomy had
occurred on at least two occasions. Moreover, defendant
advances no argument suggesting that, if B’s statement is
sufficient for that purpose, it is nonetheless insufficient to
corroborate defendant’s confession to multiple acts of sodomy
on each of those occasions. Thus, we conclude that the trial
court did not err in denying defendant’s motion for judgment
of acquittal regarding each of the challenged sodomy counts,
Counts 12, 13, 15, and 16.
As for the two corresponding first-degree sexual
abuse charges alleged in Counts 14 and 18, the corpus
delicti for first-degree sexual abuse is that the alleged vic-
tim was subjected to sexual contact. Delp, 218 Or App at
29; ORS 163.427. Both of the sexual abuse counts in this
case were based on allegations that defendant had know-
ingly subjected B, who was under the age of 14, “to sexual
contact by causing [her] to touch defendant’s penis.” 6 Thus,
by engaging in sodomy by having B put her mouth on his
penis, defendant necessarily also engaged in conduct consti-
tuting sexual abuse. As a result, our conclusion that B’s dis-
closure sufficiently corroborated defendant’s confessions to
each sodomy count necessarily compels the conclusion that
her disclosure also sufficiently corroborated his confessions
to his corresponding acts of sexual abuse. Accordingly, the
trial court also did not err in denying defendant’s motion
for judgment of acquittal as to the sexual abuse charges,
Counts 14 and 18.
We turn next to defendant’s supplemental assign-
ments of error, in which he contends that the trial court
erred when it (1) instructed the jury that it could reach
nonunanimous verdicts, (2) submitted a jury verdict form
that allowed for nonunanimous verdicts, and (3) received
nonunanimous verdicts on Counts 3, 5, 6, 7, 8, 10, 13, 16, 17,
6
ORS 163.305(6) provides, “ ‘Sexual contact’ means any touching of the sex-
ual or other intimate parts of a person or causing such person to touch the sexual
or other intimate parts of the actor for the purpose of arousing or gratifying the
sexual desire of either party.”
122 State v. Johnson
and 18. At trial, defendant requested that the court instruct
the jury that it must reach unanimous verdicts, but the trial
court denied that request. The jury found defendant guilty
on all counts except for Count 11. Of those guilty verdicts,
the trial court accepted and entered nonunanimous ver-
dicts on Counts 3, 5, 6, 7, 8, 10, 13, 16, 17, and 18. As to the
counts on which the jury returned a unanimous verdict—
Counts 1, 2, 4, 9, 12, 14, and 15—defendant’s challenge
to the nonunanimous jury instruction and verdict form is
foreclosed by the Supreme Court’s recent decision in State
v. Flores Ramos, 367 Or 292, 334, 478 P3d 515 (2020) (“[T]he
trial court’s instruction to the jury that it could return a
nonunanimous verdict did not amount to a structural error
and was harmless beyond a reasonable doubt.”). As to defen-
dant’s challenge to the nonunanimous verdicts, the state
concedes error and agrees that those convictions must be
reversed in light of Ramos v. Louisiana, 590 US ___, 140 S
Ct 1390, 206 L Ed 2d 583 (2020). We agree, accept the con-
cession, and reverse and remand the convictions based on
nonunanimous verdicts that remain following our disposi-
tion regarding defendant’s motion for judgment of acquittal,
i.e., Counts 13, 16, and 17.
Convictions on Counts 1 through 10 reversed; con-
victions on Counts 13, 16, and 17 reversed and remanded;
remanded for resentencing; otherwise affirmed.