State v. Clark

54 June 4, 2025 No. 487 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. JOHN PATRICK CLARK, JR., aka John John Clark, Defendant-Appellant. Deschutes County Circuit Court 20CR53702; A181414 Alison M. Emerson, Judge. Argued and submitted November 19, 2024. Stacy M. Du Clos, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Oregon Public Defense Commission. Jordan R. Silk, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General. Before Tookey, Presiding Judge, Kamins, Judge, and DeVore, Senior Judge. KAMINS, J. Reversed and remanded. Cite as 341 Or App 54 (2025) 55 KAMINS, J. Defendant appeals a judgment of conviction for second-degree rape and three counts of first-degree sexual abuse against his ex-girlfriend’s daughter, A. He raises six assignments of error, and we address only the first, because it is dispositive. In his first assignment of error, defendant argues that the prosecutor’s remarks to the jury at the close of the trial amounted to plain error, and that they were so improper that it deprived him of a fair trial. Following the analysis from State v. Chitwood, 370 Or 305, 518 P3d 903 (2022), we agree with defendant. We therefore reverse and remand. We recount the evidence and procedural history that relate to the issues on appeal. When A was in seventh grade, defendant was dating her mother, R. R and defen- dant decided that defendant would move into R’s home. Defendant’s probation and post-prison supervision officer met with R and defendant to set “rules” for the household that were conditions for defendant to live there. The rules prohibited defendant from being in the house without either R or R’s mother present, prohibited him from disciplining the children, prohibited inappropriate play, children being on defendant’s lap, extensive hugging, or sleeping in the same bed. The rules required everyone to be dressed appro- priately and to undress behind closed doors, and that bath- room doors remain locked when in use. Both defendant and the prosecution wanted the jury to have evidence of those household rules. Defendant wanted evidence of the rules to show that defendant was not allowed to be alone with the children. That served to explain his testimony that he abided by the rules, and that he was never alone with A, meaning that A’s accusations were false. The prosecution wanted evidence of defendant’s convictions for the purpose of evaluating defendant’s credi- bility. The trial court allowed testimony about the household rules, but excluded the rules document itself and evidence of the specific crimes of which defendant was convicted.1 1 Defendant does not assign error to the trial court’s tailoring of evidence. 56 State v. Clark At trial, A testified, as well as A’s mother, grand- mother, a forensic interviewer, and a nurse practitioner to whom A had disclosed sexual abuse by defendant. A testi- fied that defendant would tuck her in at night and touch her in progressively more intimate places, beginning with him touching her outer thigh and culminating with him touching the front of her vagina. A also testified that, once, when she was home alone, defendant raped her. She recounted, “He was just kind of on top of me, and it just happened pretty quickly. And then he just kind of left.” She was specific, describing “unconsensual [sic] sex, penis in the vagina,” adding, “It hurt.” A also testified about a subsequent forensic inter- view and medical examination she participated in after dis- closing the rape. On cross-examination, A admitted, among other things, that, when she had been asked “how her body felt during sex,” she did not say that it hurt. At trial, she testi- fied, “I can definitely remember that it hurt now.” Defendant testified that the events A described never happened. The state’s rebuttal argument is the basis for defen- dant’s first assignment of error. Defendant asserts that numerous prosecutorial statements were improper; we focus our analysis on three. In the first improper statement, the prosecutor referred to defendant multiple times as a “predator”: “[Defendant] is a predator. That’s what he is. “He preyed on one of the weakest members of our com- munity. What did he tell you? Shy. She’s withdrawn. She’s honestly the perfect victim. She is the person who is least likely to report.