State v. Pugh

No. 562 June 25, 2025 435 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. RUSTY ALLEN PUGH, Defendant-Appellant. Deschutes County Circuit Court 19CR55615; A178991 Alicia N. Sykora, Judge. Submitted October 15, 2024. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Daniel Bennett, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Robert A. Koch, Assistant Attorney General, filed the brief for respondent. Before Ortega, Presiding Judge, Hellman, Judge, and O’Connor, Judge.* O’CONNOR, J. Reversed and remanded. _______________ * O’Connor, Judge vice Mooney, Senior Judge. 436 State v. Pugh O’CONNOR, J. Defendant appeals a judgment of conviction for five counts of first-degree rape, ORS 163.375; nine counts of first-degree sexual abuse, ORS 163.427; one count of first- degree unlawful sexual penetration, ORS 163.411; and two counts of first-degree sodomy, ORS 163.405. He raises two assignments of error. Because it is dispositive, we write only to address defendant’s first assignment, in which he argues that the trial court erred when it failed to remove a juror for cause. Specifically, defendant contends that the trial court abused its discretion in overruling his motion to strike the juror after she disclosed during jury selection that her child- hood experience with sexual abuse could impact her ability to serve as a fair and impartial juror. We conclude that the trial court erred, because it gave too much weight to the juror’s responses to the trial court’s and the prosecutor’s attempts to rehabilitate her, instead of giving greater weight to her initial, unprompted statement of bias. State v. Villeda, 372 Or 108, 116, 546 P3d 268 (2024). We further conclude that the error was not harmless. Accordingly, we reverse and remand. The relevant facts are undisputed. Defendant was charged with numerous child sex abuse offenses after his daughter alleged that he had sexually abused her when she was between the ages of eight and 12. After defendant’s daughter reported the abuse, two other women, to whom defendant was a father figure, also alleged that defendant had sexually abused them when they were girls. During jury selection (also called voir dire), Juror 537 requested to speak privately with the trial court. She disclosed to the trial court and the parties that, when she was 10 or 11 years old, her dad “fondled [her] when he was drunk.” She stated that the abuse occurred “a couple of times” and explained that she had never told anyone about the abuse except her husband. The trial court asked whether the experience “might make it difficult for [her] to hear this case and be impartial to both sides,” given that “there are allegations about a father and his own daugh- ter, [and] potentially others around that age * * *[.]” Juror 537 responded, “I want to say no but it probably will impact me and my biases.” The trial court then asked whether jury Cite as 341 Or App 435 (2025) 437 instructions would reduce her bias, to which she responded that she was unsure: “THE COURT: So, the jury—there’ll be a jury instruc- tion that says, you know, you have to try not to be biased, you know, be aware and try [to] give everybody the benefit of the doubt, nobody’s going to be held beyond a reasonable doubt. Hearing those words from a judge is that going to change or reduce or even eliminate your bias? “[JUROR 537]: I just don’t know. I think I could be really fair, uh, and impartial, but I - -I wanted to be honest.” The trial court acknowledged that Juror 537 was “in tears and, obviously, very distressed” during the exchange. The state then asked Juror 537 whether she could be fair and impartial and base a decision on the evidence presented. Juror 537 responded that she would “do every- thing in [her] power to be fair and impartial” and explained that she “see[s] both sides.” The trial court explained that the “goal will be ultimately, given your experiences, * * * to be fair to the defendant in this case,” and asked whether the juror could “try[.]” She responded, “Be fair? I—I’m wired to be fair and impartial.” Defense counsel then asked Juror 537 a series of questions. Juror 537 confirmed that she understood the presumption of innocence. When asked whether she would “want to be protective of the accusers,” she explained that “it would depend on the evidence that was presented.” Defense counsel followed-up, “[I]f it came down to an allegatio