[DV_listserv] Other Acts Cases

[Domestic Violence issues]

Good Morning,

Yesterday, DOJ's Appellate Division sent out summaries for two "Other Acts" evidence cases that were decided in Oregon's Court of Appeals: State v. Baughman and State v. Mazziotti.

These two cases are the most recent in a growing number of cases that have been decided since State v. Williams (2015) changed the way we analyzed "Other Acts" evidence as it applies to defendants.

The cases don't change the current (Williams) analysis. That is, in terms of evidence of Defendant's "other acts," 404(4) controls. The court must do a 403 balancing analysis. Technically, the Defendant has to request 403 balancing, but it seems like best practice for the State to urge the court to always perform this balancing, and to put it on the record, regardless if Defendant requests it.  And, in order for the court to do the analysis correctly, the State needs to be clear about why it is offering the evidence.  In the notes on Baughman, the Appellate division urges prosecutors not to use the "shotgun" approach-that is, we need to try and be specific about why we are offering the evidence, don't just argue all potential, possible, maybe-viable reasons, for example. And, if we are arguing that the evidence is relevant to prove intent, we still have to go through the Johns analysis so that we (and the court) can properly include that analysis in its 403 reasoning. To this point, however, it should be noted that there are cases pending in the Court of Appeals where the State is arguing evidence offered to prove intent need not always meet the Johns factors. So, stay tuned!

Erin

State v. Baughman, 276 Or App 754, __ P3d __ (2016) (Clatsop) (AAG Patrick
Ebbett). Defendant sexually abused his girlfriend's daughter over a period of years,
when they lived in Clatsop and Umatilla counties. He was charged in Clatsop County
with multiple counts of sex crimes. Before the trial, the state moved to introduce
evidence of uncharged acts of abuse defendant committed against the victim in Umatilla
County, and similar acts of abuse he had committed against A, the daughter of his former
girlfriend. After conducting analyses under OEC 404(3) and OEC 403, the trial court
(Judge Cindee Matyas) admitted the evidence of defendant's abuse of A as relevant to
three "non-propensity theories"-to prove identity, to prove intent, and to bolster the
credibility of the victim. The court also admitted his uncharged acts of abuse against the
victim for the same reasons. The jury found defendant guilty on some charges and
acquitted him on others.
Held: Reversed and remanded (Sercombe, P.J.). [1] Under OEC 404(4) as
interpreted in State v. Williams, 357 Or 1 (2015), due process requires a trial court to
conduct OEC 403 balancing before admitting other-acts evidence. [2] In evaluating the
trial court's application of OEC 403, the purposes for which the court admitted the
evidence must be examined; here, the court was incorrect as to two of its three stated
"non-propensity" purposes for admitting the evidence. [4] As to identity, although the
acts were similar to the charged acts, they did not show that "defendant operated in a
novel or distinctive manner" that would identify him as the perpetrator. [5] As to
bolstering the victim's credibility, "the admission of prior misconduct evidence to bolster
the victim's credibility simply amounts to the admission of evidence for a propensity
purpose." [6] Given the similarity of the charged and uncharged acts, the evidence was
admissible to prove intent under the Johns factors. [7] Having erred on two of the three
grounds for admissibility, when the trial court applied OEC 403 balancing it "did not
correctly consider the quantum of probative value of the evidence." [8] Because "under
Williams, a failure to perform the requisite balancing test is violation of defendant's due
process rights under the United States Constitution, the court applies the federal
"harmless beyond a reasonable doubt" harmless error test. [9] The error was not
harmless beyond a reasonable doubt.
http://www.publications.ojd.state.or.us/docs/A152531.pdf

Note: The trial court in this case did not purport to admit the evidence under a
propensity theory of relevance, and thus did not consider that theory in conducting
OEC 403 balancing. Therefore, the Court of Appeals did not address whether the
evidence might have been admissible under a propensity theory, as suggested by the
Supreme Court in Williams.
Practice Tip: Often, prosecutors will argue for the admissibility of prior-acts
evidence under every possible non-propensity theory of relevance to see what will
"stick." This case demonstrates the need for caution in proposing multiple theories of
admissibility, because they affect the calculus in balancing probative value against the
potential for unfair prejudice-in other words, when it comes to theories of admissibility,
more is not always better. Be sure to check the case law concerning the various theories
before offering them to the court, and if you have questions about whether evidence
should be admitted under a particular theory, please give us a call.

EVIDENCE-PRIOR BAD ACTS: In light of Williams, the trial court erred by not
balancing under OEC 403 before admitting prior-crimes evidence, as defendant had
requested. The proper remedy is a remand for a new trial.
State v. Mazziotti, 276 Or App 773, __ P3d __ (2016) (Lane) (AAG Dave
Thompson). Defendant was in a traffic accident involving a motorcycle he was driving;
his passenger was injured in the accident. He was charged with failure to perform the
duties of a driver when property is damaged, failure to perform the duties of a driver to
injured persons, reckless endangerment, and reckless driving. At trial, the state offered
evidence of defendant's prior convictions for eluding and reckless driving, including the
facts underlying those convictions, under OEC 404(3). The state asserted that the
evidence was relevant to prove his "criminal intent" and his "awareness and disregard ...
the recklessness." Defendant objected to the evidence, arguing that it was not relevant
for any permissible purpose and that, even if it was relevant, its probative value was
outweighed by the danger of unfair prejudice. The trial court (Judge Josephine Mooney)
ruled that the evidence would "be allowed under the rule, because it sounds like [the
evidence goes] to knowledge with respect to" reckless endangerment and reckless
driving. Defendant was convicted.
Held: Reversed and remanded for a new trial (Sercombe, P.J.). [1] The trial court
made its evidentiary ruling before State v. Williams, 357 Or 1 (2015), which held that
OEC 404(4) supersedes OEC 404(3). [2] Under Williams, a trial court may admit
evidence of a criminal defendant's other crimes, wrongs, or acts if (1) it is relevant under
OEC 401, and if (2) as required by the Due Process Clause of the Fourteenth Amendment
to the United States, the trial court has determined that the risk of unfair prejudice posed
by the evidence does not outweigh its probative value under OEC 403. [3] Here, the trial
court failed to conduct OEC 403 balancing, which defendant had requested. The court
did not state on the record that it had conducted the 403 balancing, nor was it apparent
from the record that the court had considered the factors for such balancing set forth in
State v. Mayfield, 302 Or 631 (1987). In sum, the court could not "conclude, on this
record, that the trial court implicitly balanced the relevant factors and concluded that the
probative value of the prior acts evidence was not substantially outweighed by the danger
of unfair prejudice." Because the trial court admitted the prior-act evidence without first
conducting the requested OEC 403 balancing, that was error under Williams. [4] Because
the error was not harmless, defendant's convictions are reversed and the case is remanded
for a new trial.
http://www.publications.ojd.state.or.us/docs/A153713.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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