[DV_listserv] Lega Update---Other Acts Evidence

[Domestic Violence issues]

**This case was tried pre-Williams and the line of cases interpreting Williams. In this case, the trial court admitted Defendant's prior threats to kill the victim based on 404(3) Johns analysis. The COA determined that the proper basis for admissibility is under 404(3) hostile motive which requires a different analysis than doctrine of chances (Johns). The COA determined that the evidence offered does not pass that analysis because it is not "logically relevant." The court spends quite a bit of time discussing logical relevance (starts on page 171). However, there is no discussion of the nuances of a DV relationship, DV dynamics, or that, by definition, DV is a pattern of behavior-a review by the court of any of these topics could've/would've, I hope, satisfied the court that, indeed, that there actually WAS "a substantial connecting link between the prior threat and the charged assault." I would recommend that prosecutors take a look at the court's discussion. I have not yet heard whether Appellate will be seeking review of this decision.

>From Oregon DOJ Appellate Division:

EVIDENCE-RELEVANCE (OEC 401): In prosecution for domestic assault in which
defendant's defense was that he hit his wife accidentally, evidence of his long-ago
threat to kill her was not logically relevant and thus should not have been admitted.

State v. Wright, 283 Or App 160, __ P3d __ (2016) (Klamath) (AAG Dave
Thompson). Defendant struck and injured his wife during a domestic dispute, and he was
charged with fourth-degree assault. His defense was that he hit her accidentally. At trial,
the state offered evidence that a few years previously he had made a threat to the victim
that he would take her out into the woods and kill her. Defendant objected to the
evidence as irrelevant, but the court (Judge Dan Bunch) overruled that objection and
admitted the evidence, on the theory that it was relevant to show that defendant had
caused his wife's injuries intentionally, not accidentally. The jury found defendant
guilty.
Held: Reversed and remanded (Duncan, P.J.). The trial court erred by admitting
the evidence at issue, because the evidence of the prior threat was not logically relevant.
[1] In State v. Williams, 357 Or 1 (2015), the court held that, for evidence of a criminal
defendant's other acts, OEC 404(4) supersedes OEC 404(3) as the controlling rule. But
the Court of Appeals has held in several post-Williams cases that the types of relevant
evidence set out in OEC 404(3) remain viable theories for admission of prior acts
evidence. "Thus, in evaluating whether evidence of 'other crimes, wrongs or acts' is
admissible for nonpropensity purposes, we may draw on the 'settled principles' of
relevance embodied in OEC 404(3) and case law construing that provision." [2] The
trial court applied the relevance test set out in State v. Johns, 301 Or 535 (1986), in
admitting the prior-threat evidence. But the Johns test applies only when the prior-acts
evidence is offered on a doctrine-of-chances theory. Because the prior-threat evidence
was not offered under that theory, the court improperly applied the Johns test. [3]
Instead, the evidence-offered by the state to show that defendant had continuing hostile
feelings toward his wife (a hostile-motive theory), and thus to help prove that defendant
had intentionally injured his wife-was subject to the following test: (1) the evidence
must be logically relevant under OEC 401, and (2) under OEC 404(3), the evidence must
be probative of something other than disposition to do evil. [4] The prior-threat evidence
did not meet the first part of that test: it was not logically relevant because there wasn't a
substantial connecting link between the prior threat and the charged assault. "In short,
[the prior-threat evidence] does not contain evidence from which a non-speculative
inference could be drawn regarding whether the motive for the threat-hostility-was
likely to persist until, or recur on, the date of the charged crime and motivate the
commission of that crime." Therefore, under OEC 404(3), this other-act evidence was
inadmissible.
http://www.publications.ojd.state.or.us/docs/A153774.pdf
















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