Oregon Character Evidence: Knowledge as Criminal Element (7 of 10)
Knowledge or “awareness” of a fact or circumstance to prove an element of the charged crime.
Evidence of prior bad acts may be admissible to show “knowledge,” when knowledge of something proves an element in the charged prosecution. One notable example is in State v. Hardman, 196 Or App 522, 102 P3d 722, 725 (2004), where in a DUII manslaughter trial, as a matter of law, it was error to exclude as irrelevant evidence defendant’s prior alcohol-related accident, as it showed that he was aware of the risks of drunk driving. Generally, “the Johns test of relevancy applied to evidence when offered to prove [“under circumstances manifesting extreme indifference to the value of human life”] element of manslaughter. Id. at 725 (relying on State v. Johnstone, 172 Or App 559, 556-66 (2001)).
That begs the question of what “test,” if any, applies to proving knowledge of something. The “first prong of OEC 404(3) test requires that evidence be logically relevant under OEC 401 for a noncharacter purpose.” State v. Hardman, 196 Or App 522, 102 P3d 722 (2004) (citing State v. Grey, 175 Or App 235, 249, 28 P3d 1195 (2001). In the Hardman manslaughter case, the court held that the prior DUII “accident and the conditional release agreement permit an inference that defendant, at the time of the conduct in question in this case, had a heightened subjective awareness of the risks of drinking and driving. That inference, in turn, bears on whether defendant acted recklessly, under circumstances manifesting an extreme indifference to the value of human life. The evidence therefore was offered for a non-character purpose, and it logically made the fact to be proved more probable.” Id.
In essence, the Hardman relevancy analysis is as follows:
This analysis is significant to the case at bar; the prior act evidence in Hardman was only one intermediate inference away from the element it was intending to prove. The analysis is logical, simple, and unstrained in its journey from prior bad act to proof of the charged crime’s mental state, making it more likely relevant for non-character purposes and less likely that the jury would journey off the proper inference trail and find propensity.
Other “knowledge” prior bad acts cases hinge upon the relevance of the defendant’s awareness of some circumstance to prove an element of the charged crime. In State v. Carreiro, 185 Or App 19, 24-25 (2002), a marijuana possession/delivery case, subsequent bad act evidence was offered that defendant was found near an ounce of methamphetamine while possessing scales eleven months after the charged conduct. The court of appeals found that this evidence was not relevant to prove that he was aware that marijuana was present eleven months ago. The inference chain in that case was as follows:
Another example of the logical chain of relevance to prove knowledge is State v. Dupree, 164 Or App 413, 420, 992 P2d 472 (1999). In this prosecution for promoting prostitution at the defendant’s business, the State offered evidence that the defendant had told police during a previous investigation that it “was possible” that one of her employees was engaged in prostitution. Id. The court held that this was admissible to show that the defendant had notice (or knowledge) that her employees were engaging in prostitution.
The prosecutor argued that the statement tended to show that defendant did have notice that her escorts might be committing acts of prostitution. The Oregon court of appeals agreed that when the defendant “testified that she had no knowledge that her employees were engaged in prostitution” the evidence was proper to impeach her state of mind. Id. at 477. The court held that the defendant’s statement that the co-defendant’s involvement in prostitution was ‘possible’ reasonably permitted the inference that, in fact, defendant did know that at least one of her employees was engaged in prostitution. The evidence was not offered to show defendant’s character but, instead, was offered to show her state of mind. Id.
This simple inference chain for “knowledge” is as follows:
The second prong of the test is “that the past acts occurred and that defendant committed them.” State v. Hardman, 196 Or App 522, 102 P3d 722 (2004).
Knowledge acquired in prior bad act to show cause of the plan in the charged crime requires substantial similarity.
Generally, the similarity between the prior bad act and the current charge is not analyzed when looking at knowledge as it relates to an element of the charge. However, similarity is analyzed when knowledge is about a skill set that defendant learned in a prior bad act and then used or improved upon in committing a charged crime. This sounds a little like “plan” but the court of appeals analyzed it under the “knowledge” paradigm in State v. Allen, 301 Or 569 (1986). In Allen, the defendant was charged with conspiracy to commit arson by using an accomplice to burn down a house for insurance money. He specifically instructed his accomplice how to do it and not get burned by setting up a delayed ignition of gasoline (setting cups of gasoline on a stove and then turning on the burner). That would allow the accomplice time to leave the house unharmed. The State offered evidence of a prior arson where the defendant admitted to burning a house to get insurance money for the belongings inside.
The defendant employed a “similar method” in the prior arson as the charged arson: “defendant paid a friend to set the fire, gasoline was used to start the fire, and he falsely claimed insurance proceeds.” Id. at 572. The State argued that he “learned from the [prior] arson to refine his criminal technique. The force of the [prior] gasoline explosion…knocked defendant’s accomplice off the front porch of the house.” Id. The State argued that it was admissible to show the “contrast between the crude method of setting the [prior] fire, in which defendant’s friend was injured, and the somewhat more sophisticated and safe method of starting this fire, in which the ignition would be delayed until the oven element reached a high temperature, [which] showed defendant’s preparation and plan to commit the crime.” Id. at 577.
The court of appeals held that the “evidence of the prior arson was relevant to defendant’s knowledge of how to start an arson fire….” Id. The logical inference chain that got them there was relatively simple:
Given the court’s intermingling of plan and knowledge in the Allen case, it is important to determine what constitutes non-propensity evidence of a plan and what does it tend to prove. The test for “plan” comes from a 2006 Oregon Supreme Court case. In State v. Johnson, 340 Or 319 (2006), the court found that the analysis of “plan” fell somewhere between Johns and State v. Pinnell, 311 Or 98, 109-10 (1991). Johns, as set forth above, analyzes similarities between the prior act and charged act to determine if evidence is relevant for intent, finding that “a high degree of similarity is helpful but not essential.” Id. at 186. Pinnell, analyzes “if evidence of prior crimes is to be admitted to prove identity based on modus operandi, [then] the trial court must find a very high degree of similarity between the charged and uncharged crimes.” Id.
The Johnson court then applied this analysis to the defendant that was charged with rape before killing his victim. It held that it was proper for the State to introduce evidence of numerous past incidents where defendant drugged and sexually molested women while they were unconscious as evidence that the victim here was probably drugged, unconscious, and un-consenting. Ultimately, the court held that there was sufficient similarity between the prior acts and the circumstances of the charged crime to support a non-propensity inference.
The court’s reasoning is as follows (Id. at 186-187):
In our view, the analysis of the prior crime evidence in the present case falls somewhere in between Pinnell and Johns. There is no requirement that the evidence of the uncharged crime demonstrate a distinctive methodology or “signature” crime, as when such evidence is used to establish the identity of the perpetrator. However, it is essential that the uncharged crimes evidence involve a method of incapacitation (administration of an intoxicating substance) that would support the narrow inference that the State seeks to draw from it—that sexual contact between Fraser and defendant occurred while Fraser was incapacitated by morphine that defendant had administered. And, although there is no requirement that the uncharged crime closely replicate the crime that is charged (as there is when prior crime evidence is used to establish identity), any similarity in the circumstances increases the probative value of the prior crime evidence and enhances the argument for admissibility under OEC 404(3). Likewise, the timing of uncharged crimes vis-à-vis the charged crime and the number of instances that are shown may affect the question of admissibility. No categorical rule exists, but timing, repetition, and similarity of both the act and the surrounding circumstances all are important considerations.
Applying the foregoing points to the first category of witnesses, we conclude that the trial court permissibly concluded that the witnesses’ testimony was admissible for the non-character purpose of showing that Fraser did not consent and, in fact, was incapable of consenting to the sexual contact that she had with defendant. All but one of the witnesses testified that defendant had either offered them or slipped them a drug that caused them to pass out or become ill. One of the witnesses learned from a drug screen that the drug she had taken was an opiate— the same substance found in Fraser’s system. She testified that defendant later had acknowledged that he had slipped some morphine into her drink and had told her that the morphine was left over from a supply that hospice staff had provided to his father, who had suffered from cancer. Another witnesses testified that defendant also had acknowledged giving her morphine that he had gotten from “his dad.”
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That inference is strengthened by the multiplicity of similar incidents (suggesting a pattern), the fact that all the incidents occurred within the year preceding Fraser’s murder, and the fact that the victims of those uncharged crimes all were teenage girls who moved in the same circles as Fraser. In short, the testimony in the first of defendant’s guilt-phase categories is relevant to a significant noncharacter issue in the case and therefore passes muster under OEC 404(3).
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 We is aware that Hardman starts its analysis under OEC 404(3) regarding relevancy. However, given that relevancy is the same under either OEC 404(3) as OEC 404(4), this analysis should survive Williams.
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