[DV_listserv] Other Acts Cases (and a lot of them)!

[Domestic Violence issues]

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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