[DV_listserv] PBA Case

[Domestic Violence issues]

>From DOJ's Appellate Update:


EVIDENCE-OTHER BAD ACTS: In case where defendant was charged with
assaulting his girlfriend, evidence that he had assaulted previous intimate partners
was not admissible under OEC 404(3) to prove "hostile motive" or to prove intent
under a doctrine-of-chances theory.

State v. Tena, 362 Or 514, __ P3d __ (2018) (Lane) (AAG Doug Petrina).
Defendant was charged with assaulting his live-in girlfriend when he became angry
because he suspected that she had been drinking. At trial, he denied assaulting her,
claiming that she had fallen and injured herself accidentally. The victim also recanted
her report to police, testifying at trial that she injured herself when she tripped and fell
during a purely verbal argument. To prove that the victim's injuries were not accidental,
the state sought to admit evidence that defendant had twice previously-7 and 14 years
earlier-assaulted other domestic partners after he became angry at them, the first during
an argument over child-care issues, and the second because his then-girlfriend hugged
another man. The state argued that the other-act evidence was admissible under OEC
404(3) for two non-propensity purposes: to establish that defendant had a hostile motive
toward the victim, and to establish his intent under a doctrine-of-chances theory. The
trial court (Judge R. Curtis Conover) admitted the evidence under those theories, and
defendant was convicted. On appeal, he argued that the evidence was not admissible for
the purposes for which the state offered it, and that it was inadmissible propensity
evidence. The Court of Appeals affirmed.
Held: Reversed and remanded (Landau, S.J.). The trial court erred in admitting
the prior-act evidence under OEC 404(3). Hostile Motive. [1] For other-act evidence
involving someone in the same "class" as the victim to be admissible under OEC 404(3)
under a "hostile motive" theory, the state must prove "more than the simple fact that the
other acts involved such individuals." It must prove that "the motive for committing the
other acts was that the other person persons were members of the class to which the
victim belongs." [2] Here, the evidence showed that the prior assaults were not
motivated by the fact that the other victims were defendant's intimate partners, so the
trial court erred in admitting the evidence under a hostile-motive theory. Doctrine of
Chances. [3] Admissibility under a doctrine-of-chances theory-which relies on "the
proposition that multiple instances of similar conduct are unlikely to occur
accidentally"-applies "only to explain whether or not that a defendant performed was
performed intentionally. It does not apply when there is a dispute about whether the
defendant performed the act at all." [4] Because defendant claimed that he did not assault
the victim, the other-act evidence was not admissible to prove intent under a doctrine-ofchances
theory. [5] The court did not consider the state's alternative OEC 404(4)
argument-that the evidence was admissible under a propensity theory-because state
did not advance that theory in the trial court and, had it done so. Because the case is
remanded to the trial court, the trial court can address that issue on remand and conduct
OEC 403 balancing.

http://cdm17027.contentdm.oclc.org/cdm/singleitem/collection/p17027coll3/id/5770/rec/1
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NOTE (from me):

So, clearly this is not a good case for prosecutors or victims. Some things to consider that I'm still trying to work out:

Could introducing expert witness testimony help us in the future to successfully admit 404(3) evidence? Experts could provide testimony on DV Dynamics, that DV is rooted in the perpetrator's need for power and control; explaining the tactics perpetrators employ to gain/maintain that power and control; that perpetrators use the tactics that work for them continuously but not in the same way all the time; etc.

In its discussion, the Court actually notes that the Defendant's motives included "disagreement about child-care issues, the victim's desire to work, and jealousy." Obviously, the motives identified by the Court are, in fact, (as you all know) some of the most common tactics perpetrators use to gain/maintain power and control over the victim: using the children against the victim in every way possible, limiting the victim's ability to work (financial abuse), and accusations of infidelity (jealousy).  The Court's identification of those motives, if truly understood in the context of what a DV relationship LOOKS and FEELS like, actually proves the State's point---separate and together, they are Defendant's motive (and justification) for abusing his partners.

The other question is around whether we should be arguing 404(4) in addition to 404(3). We'd previously advised prosecutors to not use that argument in anything but child sex abuse cases, but perhaps the landscape is changing. Stay tuned! I'm working with the Appellate division and hope to provide clearer advice in the near-future.

--Erin


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 | Cell: 503.932.7482


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