State v. Cox
Case # A150871
Full Text of Opinion: http://www.publications.ojd.state.or.us/docs/A150871.pdf
Defendant Cox was convicted for five counts of Sodomy in the First Degree and two counts of Sexual Abuse in the First Degree. Six of the counts related to his daughter, W, who he had repeatedly sodomized and sexually abuse for years. The seventh count was for a different victim, C. Before trial, Cox sought to sever the count alleging his abuse of C. The trial court denied his motion. Cox was tried and, after closing arguments moved for a mistrial based on inflammatory comments made by the prosecution. That motion was also denied, and Cox now appeals both denials.
In considering Cox’s appeal, the Court of Appeals explains the history that led up to the charges. Cox was found to have sexually abused and sodomized his daughter from the time she was five years old up until she was 12 years old. W never told anyone about the abuse until she was 22 years old. After revealing the abuse, a Sheriff had W call Cox, and the call was recorded. During that phone conversation, Cox neither denied nor admitted that he had sexually abused W.
Approximately two weeks after that call, Police learned that C, the daughter of W’s maternal grandmother, had accused Cox of sexually abusing her years earlier. That incident of abuse occurred when C was nine years old and Cox was staying with C and her mother. One night, Cox crawled into bed with C and started fondling her. C woke up, kneed Cox, and ran downstairs to tell her mother. The mother immediately kicked Cox out of the house. The charges that arose from these two incidents were tried together, and Cox was found guilty on all seven counts.
The Court of Appeals first concludes that the trial court did not abuse its discretion when it denied Cox’s motion to sever C’s one count from W’s six counts. The Court explains that the charges arose from different incidents that occurred at different times and places and involved different victims. As such, any potential prejudice could be mitigated through jury instructions and limited cross-examination. The cases therefore need not have been severed under ORS 132.560(3).
The Court of Appeals does, however, conclude that the trial court did err in denying Cox’s motion for mistrial. That motion was based on the prosecutor’s frequent references to Cox’s past drug use. Some of the more notable comments occurred during the State’s closing arguments, when the State referred to Cox as a drug dealer, a wife beater, and “kind of the exact guy you would expect to abuse his daughter.” The Court notes that earlier in the proceedings, the trial court had forbidden the prosecution from making the kind of statements that the State made in its closing argument. The Court then concludes that those comments likely resulted in unfair prejudice. More importantly, the jury was permitted to conclude that at least some of the character traits the State brought up, such as Cox’s past drug use, were related to the charged crimes and appropriate for consideration. Moreover, the trial court’s jury instructions were not sufficient to overcome that prejudice. The Court of Appeals therefore reverses and remands for a new trial.