Oregon Character Evidence: Criminal Motive (8 of 10)
When non-propensity evidence is being offered for a purpose other than intent, such as motive, its relevance should be analyzed with the three-step process under established in State v. Hampton, 317 Or 251 (1993):
(1) The evidence must be independently relevant for a noncharacter purpose [such as, in this case, proof of motive]; (2) [T]he proponent of the evidence must offer sufficient proof that the uncharged misconduct was committed and that defendant committed it; and (3) [T]he probative value of the uncharged misconduct evidence must not be substantially outweighed by the dangers or considerations set forth in OEC 403 [danger of unfair prejudice, confusing the jury, cumulative evidence, etc.].
State v. Bracken, 174 Or App 294 (2001) confirms that the Hampton analysis is correct when the prosecution seeks to offer motive evidence, or more specifically, prior bad act evidence of motive not offered for intent or intertwined with intent. In Bracken, the defendant was charged with murder. As the defendant claimed he killed the victim in self-defense, the question at issue in the case was not whether the defendant committed the actus reus of the crime, but why he committed the crime (to kill without justification or to defend with justification).
At trial, the State moved to admit evidence of a drug operation seized from the defendant’s house, arguing that such evidence would be used to rebut defendant’s self-defense claim. The trial court denied the admission of the evidence, finding that the evidence could not pass the 5-part Johns test for relevance. On appeal, the Court of Appeals found that the trial court should have analyzed the relevance of the evidence under the Hampton test without the additional Johns factors because the evidence was being offered to rebut the defendant’s self-defense claim, not to establish that the defendant intended to kill the victim. Id. at 303. In other words, when the evidence is being offered to prove motive, and that motive is not intertwined with intent, its relevance should be analyzed by the Hampton test, not Johns.
Further, Bracken is distinguishable from the instant case because the prior bad act in Bracken caused the current charged crime/act. The defendant claimed self-defense but the State’s theory was that the defendant “shot the victim in the course of protecting against the discovery of a marijuana growing operation inside his residence, or in the alternative, that defendant was angry because the victim already had discovered the growing operation.” Id. at 296. This concept is best described as “cause and effect.” In essence, the discovery of the marijuana grow or the protection of that grow caused the defendant to commit murder.
Propensity evidence disguised as motive.
The first-part of the Hampton test is establishing that the evidence is independently relevant for a non-character purpose. It has to be motive alone. Additionally, simply calling it evidence of “motive” does not make it non-propensity evidence. The State must be able to articulate how the evidence is evidence of motive, not just simply state that it is motive evidence. This reasoning will always include an intermediate inference that allows the proponent of the evidence, the State, to arrive at the conclusion that the evidence is non-propensity evidence. The State will not be able to do so, as the evidence is actually propensity evidence.
The other acts evidence proffered by the State is purportedly being used to suggest the existence of a motive without shedding any light on why an Oregon criminal defense client should be so motivated. That break in the inferential chain demonstrates that the evidence is not truly motive evidence at all, but rather, propensity evidence. Propensity evidence is most relevant and proper regarding the same victim. For instance, where a defendant has assaulted a murder victim several times in the past, evidence of prior bad acts might be admissible in order to show that defendant “hated” the victim. However, when the charged conduct (murder) becomes too far removed from the uncharged conduct (the prior assaults), such evidence loses any independent relevance value and is most likely propensity evidence.
Generally, motive is logically relevant for a particular victim because proving motive almost always helps explain the unexplainable. Motive proves that an act by this defendant occurred where the act alone seems to lack explanation; such indications of motive are part and parcel of the crime itself. Mueller & Kirkpatrick, Federal Evidence (4th Ed.), § 4:32 (p.785).
When prior bad acts only “suggest attitude or way of thinking, and do not themselves supply motive for the charged offense,” the “probative value as proof identifying the defendant as the perpetrator is not as strong.” Id. at 791. This will be further analyzed below regarding OEC 403 balancing. Every reader, movie watcher, author, and screenwriter knows that “proof of motive may simply mislead by spotlighting and isolating a particular person from a larger and unknown array of possible culprits.” Id. The same can be said for mental causes of a particular reason to commit an act. When all the evidence suggests that the motivation was based on incidents and facts from the scene, or a common act involving the victim, prior unrelated information involving the other people is less relevant and may not logically and truly make the existence of a material fact more likely. In other words, how does a similar past motive show that the prior act and the charged act are related?
Generally, motive evidence is used to prove identity – to prove who did it – rather than why it was done, which is clearly not propensity evidence. Identity is the most relevant and logical purpose of motive evidence. For instance, when there is a large universe of possible suspects and only one person has a motive, i.e., personal animosity towards that particular victim, then motive is relevant for identity.
Most other examples of motive, which are not direct cause-and-effect evidence to show “why” something happened, are examples of propensity evidence. However, the more time that lapses between the prior bad act and the charged offense can have the effect of decreasing the likelihood that the motive evidence is being used to prove identity or why the alleged act was committed. In a case where the charged defendant is the only suspect, there is no need to exclude him from other potential suspects. Thus, motive evidence is irrelevant (or, alternatively, minimally relevant under OEC 403 balancing).
Prior bad acts linked by time and place to crime are not propensity evidence.
Motive evidence is almost always relevant and proper if it is closely related to the charged crime in time and place and is literally part of the charged crime, or at least circumstantial proof tending to prove the crime by an intermediate inference. For instance, in a murder at a tavern, proof that the decedent spilled a drink on the defendant would be evidence of motive and would be inextricably linked in time and place to the alleged crime. This sort of link in time and place would most likely exclude it from prior bad act analysis under FRE 404(b). See generallyU.S. v. Jacobs, 44 F3d 1219, 1225 (3d Cir 1995) (in felon-in-possession charge, admitting proof that defendant was engaged in a drug transaction when he drew his revolver shows motive for carrying firearm.).
Prior bad acts far more distant from charged offense invoke OEC 404 and the burden is generally high for admissibility: Cause and effect.
Most Oregon cases allow motive to show “this because of that,” or a cause-and-effect relationship between the two incidents. In essence, the person committed the charged crime because of some other prior bad act.
Below are examples of when prior bad acts can be relevant and admissible as common motives, as they are generally part of the same criminal episode:
1. Aiding in another criminal undertaking;
2. Covering up or concealing another crime. State v. Erwin, 193 Or App 41, 44-55 (2004) (that the defendant and boyfriend behaved secretively was admissible to show motive for the defendant to evade capture); Bracken at 304; State v. Westby, 117 Or App 14, 17 (1992) (killed victim and stole his truck and money to leave Oregon to avoid prosecution of another pending UUV; pending UUV admissible for motive);
3. Financial gain/greed (getting out from under pressing economic difficulties);
4. Drug-seeking (acting out the consequences of drug addiction, which can include theft to obtain money for drugs, homicide, possessing firearms, and many other acts that are motivated by the desire to and need to obtain drugs). SeeS. v. Cunningham, 103 F3d 553, 556-557 (7th Cir 1996) (a trial for nurse tampering with Demerol syringes, proving she was an addict gave her a motive);
5. Personal animosity (which is really motive and intent intertwined, requiring the Johns test). State v. Davis, 156 Or App 117, 126 (1998) (prior recent acts of violence by the defendant toward the decedent were relevant on issue of motive, but require Johns analysis because hostile motive is probative of the defendant’s intent to kill her).
It is the latter, personal animosity, which is more far removed from the examples in the prior four because the evidence does not show true cause and effect. The evidence does not show why there is personal animosity, and is therefore very close to propensity evidence, as it is missing the causation inference. In these cases, evidence may not actually explain or elicit the motive unless it is intertwined with intent, but instead simply shows that it exists and was operational in the defendant at the time in question, so that the charged crime can be understood as another expression of the feelings revealed, or purported to reveal, in the prior bad act. This is most commonly admitted when the personal animosity is against the same particular victim, because the risk of it really being propensity evidence is significantly reduced. The examples across the State and federal courts are frequent and can be summarized in the following categories:
1. Anger at victim that was continuous and proven by prior bad acts. (This is the most common in Oregon cases and is more thoroughly analyzed below.)
2. Desire for revenge. SeeS. v. Goehring, 585 F2d 371, 372 (8th Cir 1978). (In a trial for mailing threatening letters where victims were a police officer and his family, admitting proof that he issued speeding tickets to defendant bore on motive where identity was in question.)
3. To silence a witness. SeeS. v. Benton, 637 F2d 1052, 1056-1057 (5th Cir 1981). (In trial of one prison inmate killing another, admitting evidence that the defendant was involved in drug-related homicides in another state suggested motive that the defendant feared victim might implicate him in other homicides.)
In an Oregon murder case, motive and intent are distinctly different in important ways. The specific intent to take a life, which is an element in a murder charge, is far narrower an idea than an overarching motive that might generate such intent. Mueller & Kirkpatrick at §4:32 (p.789). When the prior bad acts do not involve the same victim, are not related by time or place, or are not significantly similar, they are often propensity evidence disguised as motive. In the end, other acts that bring such risk should not be admitted to prove motive where the connection to elements of the case, such as intent, is too attenuated, and where such elements are abundantly established by other evidence, including proof of the act and circumstances surrounding the act itself.
Motive vs. Intent Flow Chart
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