[DV_listserv] Another "Other Acts" case

Fri Aug 5 15:02:13 PDT 2016

Remember: Under Williams the Court has to do an OEC 403 balancing analysis. Technically, the Defendant has to request it, but it's best practice to have the court do the analysis regardless. In the case below, the Defendant "raised" the 403 issue in his written Motion in Limine, but did not reiterate it during trial. The court did not do a 403 analysis and admitted the other acts evidence. Here, the COA held the MIL was enough to preserve the 403 argument; it does not need to be raised during trial.

When arguing 404(4) motions please have the court do the appropriate 403 analysis. On the record.

(From DOJ's Appellate Division Legal Update):

EVIDENCE-OTHER ACTS: Trial court erred by failing to conduct OEC 403
balancing before admitting evidence of defendant's prior conduct toward the
victim; the error required a new trial.
State v. Holt, 279 Or App 663, __ P3d __ (2016) (Wasco) (AAG Doug Petrina).
Defendant was charged with two counts of third-degree sexual abuse. Before trial, he
filed a motion in limine to exclude evidence that he had previously kissed the victim,
snuggled with her, lain with her on the couch, talked to her on the phone, and asked her
for photographs. In his written motion, defendant noted that he was relying on OEC 403.
At the hearing, where the state argued the evidence was admissible to show defendant's
sexual predisposition to the victim, defendant did not expressly reiterate his request for
OEC 403 balancing. The trial court (Judge Janet Stauffer) denied defendant's motion and
admitted the evidence without conducting OEC 403 balancing. Defendant was
convicted.
Held: Reversed and remanded for a new trial (Duncan, P.J.). [1] Defendant
adequately preserved his argument for balancing under OEC 403 by raising the issue in
his written motion, even though he did not reiterate that argument at the hearing on his
motion. [2] The trial court erred in failing to conduct OEC 403 balancing, which violated
defendant's right to due process. [3] Because the error was not harmless beyond a
reasonable doubt, "we must reverse and remand for a new trial."
http://www.publications.ojd.state.or.us/docs/A154052.pdf

From: DV_listserv [mailto:dv_listserv-bounces at listsmart.osl.state.or.us] On Behalf Of Domestic Violence issues
Sent: Friday, July 08, 2016 2:00 PM
To: 'dv_listserv at listsmart.osl.state.or.us' (dv_listserv at listsmart.osl.state.or.us)
Subject: [DV_listserv] Other Acts Cases (and a lot of them)!

Good Afternoon,

There have been a number of "Other Acts" cases recently. I've listed four cases below and I've attached the most current version of the "Other Acts" case law list that I try to keep up to date.

Have a great weekend,

Erin

State of Oregon v. Joshua Turnidge: This is a death penalty case where this defendant and his co-defendant, his father, were convicted of multiple counts of aggravated murder and other felonies arising from their involvement in a bombing at a bank that killed two law enforcement officers and injured one other officer and a bank employee. In its case, the state offered evidence that many years prior to the instant offense the defendant had called in a bomb threat to a different bank in the same city. The court ultimately affirmed the admissions of the evidence under 404(3).
(Pages 427-445 provide a good discussion of "Other Acts" evidence.)

Some takeaways (from the Court's opinion):

State v. Williams answered one question: that propensity evidence CAN be admitted in a child sex abuse case under 404(4) if Due Process permits.

There are two unanswered questions from Williams:

1) The extent to which PBA evidence can be admitted SOLELY for propensity purposes in criminal cases OTHER than ones involving child sex abuse;

2) Whether in criminal cases in which evidence is admitted for propensity purposes, Due Process requires traditional 403 balancing OR requires a greater sharing of unfair prejudice (than 403 would require) in order to exclude otherwise probative evidence.

Turnidge did not resolve these questions because:

1) This case does not involve child sex abuse;

2) Turnidge does not present the question whether the contested evidence could have been admitted SOLELY for propensity purposes, in reliance on 404(4). "The state's theory of admission 'falls squarely within the nonexclusive list of non-propensity purposes for which PBA evidence historically has been admissible, which are largely codified in OEC 404(3)."

The state's theory of admission was to show, among other things, that defendant had a plan to commit at least some of the charged crimes, as demonstrated by an earlier trial run involving both calling in a threat to a bank teller and observing the police response to the threat.

The Court does a lengthy analysis of Leistiko, distinguishing that case from Turnidge based on the types of plans ("spurious" vs. "true") involved in each. Because the court determined that the admitted evidence was relevant to proving a "true plan," it concluded that it was properly admitted under 404(3). It also determined that the balancing under 403  was (necessary and) sufficient. And that because the State had not offered the evidence based on a "doctrine of chances" (intent or absence of mistake) theory, the trial court did not err in not providing the jury with a Leistiko limiting instruction.

http://www.publications.ojd.state.or.us/docs/S059155.pdf

Other "Other Acts" cases:

EVIDENCE-OTHER BAD ACTS: Other-acts evidence was inadmissible to prove defendant's intent, because the prior act and the charged act were not physically similar.
State v. Hudman, 279 Or App 180, __ P3d __ (2016) (Josephine) (AAG Dave Thompson).

NOTE: The state, in its appeal, did NOT ask the COA to consider State v. Williams and a 404(4) argument.

http://www.publications.ojd.state.or.us/docs/A152410.pdf

EVIDENCE-OTHER BAD ACTS: Other-acts evidence was inadmissible in theft case to prove intent on "doctrine of chances" theory, because the other act and the charged act were insufficiently similar. But the error was harmless.
State v. Davis, 279 Or App 223, __ P3d __ (2016) (Clackamas) (AAG Dave Thompson).
http://www.publications.ojd.state.or.us/docs/A154743.pdf

NOTE The state, on appeal, did not raise any "propensity" arguments which might implicate State v. Williams or 404(4).

EVIDENCE-OTHER BAD ACTS: Trial court committed reversible error under State v. Williams by admitting other-acts evidence without first conducting balancing under OEC 403, as required by the Due Process Clause.

State v. Altabef, 279 Or App 268, __ P3d __ (2016) (Marion) (AAG Rolf Moan).

http://www.publications.ojd.state.or.us/docs/A156547.pdf

Erin S. Greenawald
Sr. Assistant Attorney General | DA/LE Assistance| Criminal Justice Division
Oregon Department of Justice
2250 McGilchrist Street SE, Suite 100, Salem OR 97302
Main: 503.378.6347 | Desk: 503.934.2024 | Fax: 503.373.1937

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