State v. Roberts , 334 Or. App. 162 ( 2024 )

162 July 31, 2024 No. 533
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
STEVEN LAMAR ROBERTS,
aka Stephen Lamar Roberts, aka Steven Roberts, aka
Stevie Roberts, aka Stevie Lamar Roberts,
Defendant-Appellant.
Multnomah County Circuit Court
130733183; A177247
Thomas M. Ryan, Judge.
Submitted May 31, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sara F. Werboff, Deputy Public Defender, Office
of Public Defense Services, filed the briefs for appellant.
Steven L. Roberts filed the supplemental brief pro se. Ernest
G. Lannet, Chief Defender, Criminal Appellate Section, and
Emily P. Seltzer, Deputy Public Defender, Office of Public
Defense Services, filed the supplemental brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
Before Joyce, Presiding Judge, Lagesen, Chief Judge, and
Armstrong, Senior Judge.
JOYCE, P. J.
Affirmed.
Nonprecedential Memo Op: 334 Or App 162 (2024) 163
JOYCE, P. J.
In this criminal case, before us for the third time,
defendant appeals from a judgment of conviction for first-
degree rape and first-degree sodomy. In his first assignment
of error, defendant argues that the prosecutor’s reference to
“grooming” during rebuttal closing argument denied him
a fair trial. In his second assignment of error, defendant
argues that the trial court lacked authority to impose a
consecutive sentence on the sodomy conviction. We conclude
that defendant’s argument that the prosecutor’s reference to
“grooming” was impermissible was not preserved and is not
plain error. We also conclude that the trial court properly
imposed consecutive sentences. In addition, we reject defen-
dant’s supplemental pro se assignment of error—as not pre-
served and not reviewable as plain error—without further
written discussion. We thus affirm.
The relevant facts on appeal are not in dispute,
and we provide only a brief summary. The state charged
defendant with five crimes based on a single course of con-
duct involving his adult daughter with whom he engaged in
forcible sexual contact. The victim reported the incident to
police. She was taken to the hospital, where she was exam-
ined and described what had happened. She reported that,
in the course of the sexual assault, defendant had slapped,
bitten, and choked her.
At his initial trial, a jury found defendant guilty of
first-degree rape, ORS 163.375(1)(a) (Count 1), first-degree
sodomy, ORS 163.405(1)(a) (Count 2), and incest, ORS
163.525 (Count 5).1
Defendant has appealed those convictions twice
before. In his first appeal, State v. Roberts, 288 Or App 145,
406 P3d 117 (2017), we vacated and remanded on an evi-
dentiary issue. After conducting a new evidentiary analysis,
the trial court re-entered the same judgment, and defendant
again appealed. On reconsideration of our initial judgment
affirming without opinion, we reversed and remanded the
first-degree rape conviction due to a nonunanimous verdict
1
The applicable versions of the listed statutes are the ones that were in effect
in 2012. All three statutes have since been amended, but because the amend-
ments do not affect our analysis, all references are to the current versions.
164 State v. Roberts
on that count, and we remanded the entire case for resen-
tencing. State v. Roberts, 304 Or App 845, 846, 468 P3d 1039
(2020).
On retrial of the first-degree rape charge, the jury
found defendant guilty. On that count, the court sentenced
defendant to 100 months’ imprisonment and 240 months’
post-prison supervision, minus time actually served. On the
first-degree sodomy conviction, the court imposed the same
sentence as the first-degree rape conviction and ordered
that sentence to be served consecutively. On the incest con-
viction, the court imposed a sentence of discharge.
Prosecutor’s reference to “grooming.” In defendant’s
first assignment of error, he argues that the trial court erred
by “permitt[ing] the state to argue during rebuttal closing
that defendant groomed the complainant.” The state asserts
that the claim of error is not preserved and that it does not
constitute plain error.
We agree that defendant’s claim of error is not pre-
served. Although defendant objected to “vouching” and “facts
not in evidence” earlier in the prosecutor’s closing argument
(statements that did not refer to grooming), defendant did not
object when the prosecutor referred to “grooming,” nor did he
argue, as he does on appeal, that that reference was scien-
tific evidence for which the state had not laid a foundation.
We further conclude that the prosecutor’s “groom-
ing” comment during rebuttal argument is not plain error.
See State v. Durant, 327 Or App 363, 364-65, 535 P3d 808
(2023) (“[I]n the specific context of a challenge to prosecu-
torial statements in closing argument to which the defen-
dant did not object[,] * * * appellate review is permitted, and
reversal may be warranted if it is beyond dispute that the
prosecutor’s comments were so prejudicial as to have denied
defendant a fair trial,” but “prosecutorial statements that
were improper but curable are not an appropriate subject
of plain-error review, because, in such circumstances, the
defendant was not denied a fair trial.” (Internal quotation
marks and citations omitted.)). Here, in context, the prose-
cutor’s single use of the word “grooming” did not amount to
an impermissible reference to scientific evidence that would
Nonprecedential Memo Op: 334 Or App 162 (2024) 165
have required the trial court to grant a mistrial. Rather,
the prosecutor made that statement during a permissible
argument based on evidence in the record that defendant
had threatened and abused the victim and had engaged
in sexual behavior with her from a young age, which had
effectively trained or conditioned her to “not put up a fight”
when he engaged in sexual contact with her. That reference
to “grooming” was thus not a reference that the jury would
have understood to be scientific evidence, and it did not deny
defendant a fair trial.
Consecutive sentences. In defendant’s second assign-
ment of error, he contends that the trial court erred by mak-
ing his sentence for first-degree sodomy consecutive to the
sentence for first-degree rape. The trial court did so after
concluding both that defendant’s commission of sodomy was
not merely incidental to the rape and that it caused the vic-
tim a qualitatively different harm. ORS 137.123(5)(a) and (b).
The state responds, among other arguments, that ORS
137.123(5) authorized the sentence. We review the trial
court’s predicate factual findings for imposing a consecutive
sentence for any supporting evidence, State v. Provancha,
293 Or App 169, 173, 428 P3d 916 (2018), rev den, 364 Or 407(2019), and affirm.
ORS 137.123(5) allows a court to impose consecu-
tive sentences if the court finds:
“(a) That the criminal offense for which a consecutive
sentence is contemplated was not merely an incidental vio-
lation of a separate statutory provision in the course of the
commission of a more serious crime but rather was an indi-
cation of defendant’s willingness to commit more than one
criminal offense; or
“(b) The criminal offense for which a consecutive sen-
tence is contemplated caused or created a risk of causing
greater or qualitatively different loss, injury or harm to the
victim or caused or created a risk of causing loss, injury or
harm to a different victim than was caused or threatened
by the other offense or offenses committed during a contin-
uous and uninterrupted course of conduct.”
Although defendant contends that the record is
insufficient to support the trial court’s determination that
166 State v. Roberts
the first-degree sodomy was not merely committed inciden-
tally in the course of committing first-degree rape but rather
reflected defendant’s willingness to commit more than one
crime, we disagree.2
As the court observed, both first-degree rape and
first-degree sodomy are equally serious crimes and thus
the sodomy was not merely an incidental violation com-
mitted in the course of the commission of a more serious
crime. And, as the court also explained, “the rape and the
sodomy are each very indicative of defendant’s willingness
to commit more than one crime. Each could be committed
without committing the other. They are separate acts.” The
evidence in the record supports those conclusions. Among
other evidence, the victim testified at trial that defendant’s
penis went inside her anus. Although the victim testified
that she believed that defendant did so by accident, the trial
court noted that that testimony was not “determinative or
controlling” in light of the other evidence that supported
consecutive sentences.3
Affirmed.
2
As charged here, first-degree sodomy by forcible compulsion requires proof
that defendant unlawfully and knowingly, by forcible compulsion, engaged in
anal sexual intercourse with the victim by causing his sex organs to come into
contact with the anus of the victim. Penetration is not an element of the offense.
State v. Luttrell, 93 Or App 772, 774, 764 P2d 554 (1988), rev den, 308 Or 79(1989).
3
We understand defendant’s argument to construe the victim’s testimony
in a particular way, but we disagree that, under our standard of review, we have
to view the record as defendant characterizes it. With the victim as a relatively
uncooperative witness, the prosecutor asked the victim, who had testified that
she engaged in consensual sex with defendant, “What happened when you were
having sexual intercourse with him?” After she sought clarification, the prosecu-
tor asked about each of the charged acts, including, “At any point, did his penis go
inside of your anus?” The victim replied, “Yes[.]” We understand defendant to be
construing the questions and testimony to mean that each of the specific charged
acts took place “when [the victim was] having sexual intercourse with” defen-
dant. We conclude, however, that a factfinder could understand the reference to
“when you were having sexual intercourse with him” to mean, on that occasion,
or around that time, and not that all of the acts occurred simultaneously with the
vaginal rape.