Oregon Character Evidence: Intentional Crimes (6 of 10)
Are the prior bad acts are too dissimilar or do not involve the same actus reus?
Williams does not make State v. Johns, 301 Or 535 (1986) inapplicable or “bad law.” Rather, Johns can and should be incorporated into Williams to assist with an essential requirement under Williams: the determination of relevancy vs. propensity. Under Williams, the first step of the prior bad act analysis is establishing how the evidence is relevant under OEC 401. When evidence is offered as intent evidence, it needs to pass through the Johns test to determine if it qualifies as evidence of intent. The Johns test is a logical, analytical framework for determining if the evidence truly has an inference chain that supports intent, or if it is simply propensity evidence disguised as intent. This step satisfies the second prong of Williams, which is to determine the purpose for which the evidence is being offered. From there, we go back to the Williams test to determine if the evidence is admissible after an OEC 403 balancing. In other words, Johns is the second prong of the Williams test for prior bad act evidence that is being offered to prove intent. Otherwise, there is no guidance on how to determine intent versus propensity. There is nothing about Williams that affects the reasoning in Johns.
The analysis of intent evidence begins with OEC 401 and how Johns defines it. The Johns test is simply a way of getting to whether something is propensity or truly relevant to intent via the doctrine of chances. Are the reasons that the State offers in justification for their elected evidence actually relevant for the purposes that the State describes? Has the State described the inferences necessary to get from the prior bad act to intent of the charged crime or is it conclusory? Do the prior acts have any tendency to make the existence of the fact that defendant intended to commit the crime any more probable than without the evidence?
The Johns court fashioned a test for determining whether proffered evidence of prior crimes, wrongs or acts is admissible on the issue of intent under OEC 404(3). This test is still applicable to evidence offered under OEC 404(4) in order to determine how it is that the evidence qualifies as evidence of intent. The court specified that the first inquiry should be to determine the relevancy of the proffered evidence. The court held that the trial judge should make the following determinations (State v. Johns, 301 Or at 555-556):
1. Does the present charged act require proof of intent?
2. Did the prior act require intent?
3. Was the victim in the prior act the same victim or in the same class as the victim in the charged case?
4. Was the type of prior act the same or similar to the acts involved in the charged crime?
5. Were the physical elements of the prior act and present act similar?
6. If these criteria are met, is the probative value of the prior act evidence substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, undue delay or presentation of cumulative evidence? [This due process analysis is set forth below. SeeState v. Moore, 349 Or 371 (2010).]
Intent and the Doctrine of Chances: The actus reus must be the same.
When prior bad acts evidence is offered to prove intent, the courts have looked to the doctrine of chances in determining whether or not the prior acts are offered merely to show propensity or actions in conformity with character.
The courts have held that the doctrine of chances essentially establishes that “the more often [a] defendant performs the actus reus, the smaller is the likelihood that the defendant acted with an innocent state of mind.” State v. Johns, 301 Or at 552 (quoting Edward Imwinkelreid, Uncharged Misconduct Evidence sec 5:05, 10-11 (1984)). Let the State not forget what the facts in Johns were: the defendant claimed he entered a darkened room and his wife shot at him; he lunged at her to take away the gun and in the struggle it accidentally discharged and killed her. Johns at 537-538. In effect, the actus reus was admitted by him telling the police that he had control of the gun or attempted control of the gun. However, the State was stuck with how to prove that the shooting was intentional. Consequently, the State, in an attempt to prove an intentional and not accidental shooting, introduced undisputed evidence that the defendant had intentionally attempted to shoot his former (different) wife approximately six years earlier. Id. at 540-41. The court, in effect, concluded that multiple instances of similar actus reus (shooting at a wife) together prove the similar conduct is unlikely to occur accidentally. Id. at 554.
The 2012 Oregon Supreme Court decision of State v. Pitt, 352 Or 566 (2012), outlines in detail what is required for prior bad acts evidence to be relevant to show an individual acted intentionally. The Pitt court stated:
In State v. Leistiko, 352 Or 172, 202 P3d 857 (2012), this court held that other crimes evidence is relevant to prove that a defendant acted intentionally when the record establishes, in fact, that the defendant committed the charged act. See alsoState v. Gailey, 301 Or 563, 568, 725 P2d 328 (1986) (holding that evidence that the defendant possessed stolen property from a separate burglary was not admissible to prove that the defendant intended to burglarize the victim’s home when the defendant had not admitted the act — i.e., that he was in the victim’s home).
More specifically, when this court decided Johns, the court based its reasoning on the “doctrine of chances,” as distilled from the work of John Henry Wigmore and Edward J. Imwinkelreid. Under that doctrine, a jury may infer that multiple acts of repeated conduct make it unlikely that the person who performed those acts acted inadvertently. Johns, 301 Or at 552-55. As this court explained in Leistiko, application of the doctrine of chances assumes that the act has occurred ‘either because (as usually) it is conceded, or because the jury [is] instructed not to consider the evidence from this point of view until they find the act to have been done.’ 352 Or at 184 (quoting John Henry Wigmore, 2 Evidence sec 302, 245 (Chadbourn rev. 1979)).
When the act is so established by the defendant’s stipulation, or when the trial court instructs the jury that it first must find from the evidence that the alleged act occurred before it may consider the evidence of other crimes to determine intent, uncharged misconduct evidence that is sufficiently similar to the charged acts can be admitted to prove that the defendant acted with a culpable state of mind. Id at 184-85. In the absence of a stipulation by the defendant, unless the State first introduces evidence sufficient to allow the jury to find that the charged act occurred, a court cannot properly admit the uncharged misconduct evidence as relevant to prove intent.
Pitt, 352 Or at 579.
Essentially, the burden upon the State to show that the prior act and the current act are similar remains high. While the Pitt court appears to set forth a process whereby it might be inferred that as soon as the State puts on sufficient evidence for a jury to find that the charged act occurred, the prior uncharged misconduct evidence immediately becomes admissible, as long as the court provides a cautionary jury instruction. However, the court itself cautioned against such action, to-wit:
We do not intend to indicate that, when a defendant’s intent is at issue, evidence of prior uncharged misconduct always will be admissible provided that the court gives such an instruction. First, the uncharged conduct must be sufficiently similar to be relevant to prove intent.
Id. at n. 8.
The Leistiko court reasserts the need for sufficient similarity between prior acts and the currently charged act. The court noted that the basis of the “doctrine of chances” “depends upon the proposition that multiple instances of similar conduct are unlikely to occur accidentally.” State v. Leistiko, 352 Or 172, 182 (2012). It goes on to note that while Johns allowed a single prior incident of conduct to be admissible for the purposes of proving intent, that case was unique based upon its own circumstances. Id. at 183. The court refused to “draw an arbitrary line,” but rather, stated:
Depending upon the circumstances of the case, sometimes one prior similar act will be sufficiently relevant for admissibility and sometimes not. A simple, unremarkable single instance of prior conduct probably will not qualify, but a complex act requiring several steps, particularly premeditated, may well qualify.
The Leistiko court notes that in the Johns case, the trial court found five “mental state” similarities and six physical similarities, thus making both acts sufficiently similar to be relevant to the issue of the defendant’s intent. Id. The Leistiko court concludes, however, that “the prior act in this case is not the sort of single ‘complex act requiring several steps, particularly premeditated,’ that will suffice to establish intent under the doctrine of chances.” Id. at 186. In other words, for the doctrine of chances to be invoked and satisfied, the acts have to be of sufficient complexity and have multi-faceted similarities between the prior act and the charged act.
The acts in this case do not share such complex similarities. But at their core, they must share the same actus reus. For example, in Leistiko, the actus reus was the act of sexual intercourse, not the actions the defendant took to get the victim to the place where sex occurred, where on prior instances sex didn’t occur. However, once the actus reus is the same, the other actions leading up to the actus reus are analyzed for similarity.
A review of the case law shows that at the core of the incident, the actual actus reus must be the same and the rest of the circumstances similar, as shown in the following:
1. Multiple instances of violence with a gun while drunk was admissible to show attempted murder by defendant firing a gun at the owner of a tavern while drunk. State v. Harris, 81 Or App 574, 726 (1986).
2. Prior shooting at wife was admissible to show current shooting/murder of different wife. Johns.
3. Prior sex abuse of students was admissible to show current sex abuse of different students. State v. Stafford, 157 Or App 445, 459 (1998).
4. Prior kidnapping at gunpoint at a shopping mall to abuse sexually was admissible to show current attempted kidnapping at knifepoint at a shopping mall to cause injury (actus reus in both is the kidnapping via threat of violence). State v. Morgan, 80 Or App 747, 751 (1986).
In State v. Sheets, 160 Or App 326 (1999), the defendant was charged with rape, sodomy, and sexual abuse of a five-year-old girl. The defendant allegedly “tried to put his crotch into her crotch while bouncing her on his stomach.” Id. at 328. The prosecution sought to introduce evidence of a prior attempted sexual assault on an 11-year-old female, in which the defendant had attempted intercourse with her. The State argued that the prior incident was relevant to show that the defendant had touched the victim in the crime charged “with sexual intent.” Id. at 328.
In Sheets, the court explained that
[u]nder OEC 404(3), evidence of other crimes or wrongs is not admissible to prove that a defendant is the kind of person who commits the types of crimes with which he is charged. However, such evidence may be admissible to prove allegations that the defendant acted intentionally.
160 Or App 326 at 329. The court applied the Johns test in reference to the specific mental states alleged in the indictment. Id.
The Sheets court held that the prior incident was too dissimilar for it to be relevant as the defendant’s intent in bouncing the five-year-old, concluding that “[a]side from its tendency to show that the defendant is the sort of person who sexually assaults female children, the 1993 conduct is not probative of an intent to rape the victim or that he was acting with awareness that he was sodomizing or abusing her.” Id. at 331.
In sum, the term “intent,” as used in OEC 404 analysis refers not to the intent to commit certain kinds of crime, but rather, to the more narrow intent to perform the specific act or acts alleged in the indictment. Evidence of intent to commit certain kinds of crime is nothing more than propensity evidence, and is therefore inadmissible.
Similarly, in State v. Dibala, 161 Or App 99 (1999), the court held that the prior act the State sought to introduce into evidence was too dissimilar to be relevant. The defendant was charged with sexually assaulting two 12-yearold boys, arising out of an incident in which he had allowed them to take turns sitting on his lap to steer his truck. The boys claimed that defendant had an erection and moved his pelvis up and down so that it would rub against their buttocks. The prior misconduct was an incident in which the defendant had admitted to police that he had fondled the clothed genitals of two boys, ages eight and eleven.
The Dibala court concluded that “the physical elements of the two incidents are not so similar as to outweigh their differences.” Id. at 106. The court explained that the challenged evidence “was not probative as to defendant’s knowing conduct with respect to the alleged victims in this case, because it did not make it more or less probable that defendant knew that he was sexually abusing the children. As in Sheets, the primary tendency of the other bad acts evidence offered by the State in this case was ‘to show the defendant is the sort of person who sexually assaults children.’” Id. (quoting State v. Sheets, 160 Or App at 331). The court concluded that the evidence of the prior incident was not logically relevant to the charged offenses, thus rendering OEC 404(4) inapplicable. Dibala at 106-07; accordState v. Dunn, 160 Or App 422, 430 (1999).
Absence of Mistake/Accident OF THE DEFENDANT (not victim)
The State is wrong that absence of accident applies in most cases. The State or Oregon typically is conflating the accident by a victim with the claimed accident of a defendant. However, a close inspection of the case law shows that the defendant must have committed the actus reus, admit or concede the commission of the actus reus, and be claiming that it was all a big accident or big misunderstanding (see Brown, the check fraud case above). State v. Blaylock, 267 Or App 455 (2014), is typically cited for the proposition that “evidence of prior bad acts may be admissible to counter that argument by, for example showing the absence of mistake or accident, or that the defendant acted with intent.” Id. at 466. T
he Blaylock defendant’s prior strangulation of his wife was used to show that he did not accidentally strangle her on that night. What is important to note is that there was no claim by the defendant that the victim accidentally strangled herself. If that was the claim, the prior strangulation would not be admissible to show that it was not her own accidental strangulation but his, because the prior bad act would be used to show actus reus rather than mens rea, and would thus be propensity evidence. In other words, prior bad acts are only relevant to show that defendant did not accidentally commit the actus reus, not that the victim did not accidentally cause her own death.
In fact, Johns is also an absence of accident case. Mr. Johns claimed that he grabbed the gun and accidentally caused the gun to discharge.
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