Sublimity man wins new trial for sex abuse conviction from 2015

A Sublimity man found guilty of molesting two children younger than 14 has to be retried under a ruling from the Oregon Court of Appeals.

John Lulay, 69, was sentenced to 18 years and nine months in prison after a jury convicted him on three counts of first-degree sex abuse in April 2015.

But the Court of Appeals ruled the Marion County trial judge was mistaken in excluding evidence from a past case where Lulay was acquitted of similar charges involving a minor after a three-day bench trial.

Lulay, a retired North Santiam School District teacher, said the information was "relevant to show witness bias and to support (his) theory that he took special precautions around children." 

Writing for the court, Appellate Judge Scott Shorr agreed, saying "the error was not harmless."

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Before the initial trial, Lulay's attorney made a motion to exclude evidence from a 2008 case where he was acquitted of two sex abuse charges.

Deputy District Attorney Nicole Theobald said she wouldn't reference the past trial unless the defense discussed it first. 

But then the earlier case was reportedly brought up by Lulay during jury selection after a potential juror "alluded to the fact that she was aware of defendant’s past." She was later recused.

The past trial was again mentioned by the defense before opening statements. At that point, Lulay's team wanted to include the case as evidence.

"I opened the door in jury selection, and I intend to continue to open the door," Lulay said.

When questioned about its relevancy, Lulay's attorney said many witnesses involved in the current case were aware of the past charges.

“(Lulay) was basically tarred and feathered with the allegation by people’s opinion despite the exoneration at trial," his attorney said.

After his acquittal, Lulay said he took special precautions around children, being extra mindful of his actions since he was "shell shocked because of what happened" and didn't want something similar to happen in the future.

Theobald said the state didn't anticipate discussing the past case because the defendant had asked to exclude that information because it would require a "completely different trial strategy than the one we were about to do."

The defense countered back, saying the DA's office was fully aware of the previous charges and had called a police officer involved in the 2008 case as a witness.

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Marion County Circuit Judge Dale Penn disagreed and said the material wasn't relevant to the new charges, calling it a "collateral matter" and confusing for the jury for them to be brought up.

"I cannot think of a reason that would justify bringing forward this prior case," Penn said. "We are not going to discuss or allow any mention of evidence concerning whatever occurred about a previous allegation."

However, the Court of Appeals ruled that if the 2008 trial had been admitted during the later trial it could have shown witness bias toward Lulay and resulted in a different outcome.

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The retrial was granted earlier this year and Lulay was transported Thursday to the Marion County Jail, where he remains without bail. His next court hearing is scheduled for Aug. 21.

Lulay was initially charged with one count of first-degree sex abuse in May 2014 after a girl under 14 reported he had touched her genitals a year earlier.

Later in 2014, a boy — also under 14 — came forward, alleging Lulay had molested him. The boy said he had been abused at least three times sometime between March and April of 2013.

The two cases were combined after Lulay was indicted on the second set of charges. Both victims were known to him.

Since first-degree sex abuse is a Measure 11 offense, Lulay was sentenced to a minimum of six years and three months in prison for each count.

Contact reporter Olivia Heersink at oheersink@statesmanjournal.com, 503-399-6657 or follow her on Twitter @heersinkolivia.