Oregon Prior Bad Acts: Post-Williams Paradigm Shift (3 of 10)
Post-Williams Case Summary (through November 19, 2015).
As of November 19 2015, there have been seven cases that have cited Williams. Only one of the seven, Horner, has been cited by any other case (Brown and Logan respectively). They are summarized below.
State v. Ardizzone (May 2015) (solicitation of to commit murder).
State v. Ardizzoine, 270 Or App 666 (2015), is minimally significant to most Oregon criminal defense attorneys at the trial court level. Its greatest importance lies in its reference to the Johns test and its failure to find fault in the trial court’s application of Johns in the post-Williams world. In that case, Mr. Ardizzone was charged with solicitation to commit aggravated murder. Id. at 667. He had previously been convicted of solicitation to commit murder of the same victim. He claimed that the payment made to a prison snitch was for legal work performed and any mention of solicitation for murder was just made in jest. The State sought to offer evidence of his intent with a prior bad act to show that the statements were not made in jest. Rather than argue that the evidence was minimally relevant, the defense attorney conceded that the evidence was relevant to intent, but argued that it was unfairly prejudicial. Id. at n 4.
Due to the defendant’s failure to preserve error at trial and his appellate counsel’s failure to ask the appellate court to engage in a plain error analysis, the only issue decided was whether it was an abuse of discretion for the trial court to find that the other act evidence was not unfairly prejudicial. Ultimately, the appellate court held that it was not an abuse of discretion but provided no reasoning. However, it is important to note that no appellate court is ever being asked to determine whether or not something is unfairly prejudicial. They do not review the issue de novo. They simply determine if there is evidence in the record that could have supported the trial court’s findings regarding the balancing test. Considerable discretion is given to the trial judge when conducting the balancing test and that decision is virtually never second guessed.
Another important issue in Ardizzone is the court’s citation and explanation of the Johns test to determine if the other act is relevant to intent or simply propensity evidence. The Ardizzone court did not hold that Johns survives Williams, because it was not asked to do so. The court had the opportunity to disregard the Johns analysis but deferred the question on “how Williams has shifted [the analytical] paradigm.” Id. at n. 2 (emphasis added).
Green v. Franke (June 2015) (PCR for multiple child sex victims).
There are no relevant issues in Green v. Frank, 357 Or 201 (2015), that would be helpful to Oregon criminal defense lawyers. While this is the only post-Williams Oregon Supreme Court case to cite Williams, the court only references Williams in a footnote. Id. at 317, n. 11.
State v. Brown (July 2015) (cashing forged checks).
State v. Brown, 272 Or App 424 (2015), is important for its post-Williams reliance on Johns, its discussion of how to apply the balancing test, and how other acts evidence works when a defendant admits the actus reus of the charged crime, in this case cashing checks. The Brown defendant was charged with theft, forgery, and criminal possession of a forged instrument for cashing forged checks. Id. at 426. “The trial court admitted [evidence of his prior convictions] for the purpose of demonstrating that defendant had knowledge that the checks he cashed were forged.” Id. It was not offered for the purpose to show that he committed the actus reus by cashing the checks, which would be impermissible character/propensity evidence.
The defendant objected and requested a hearing under Johns to determine admissibility because, according to him, “the State had not established the similarity between defendant’s prior convictions and the charges at issue.” Id. at 426-427. The trial court weighed the evidence and found that due to the difficulty in proving knowledge, the probative value of the prior convictions was substantial.
Specifically, the court deemed a Johns hearing unnecessary because it was very probative given how difficult “proving knowledge, what’s going on in someone’s mind.” Id. at 427. Thus, the arresting officer confronting the defendant with how due to his prior arrests, “‘it’s unlikely that a person associated what [that criminal] experience in fraud and theft would not have known what was going on.’” Id. That testimony plus the certified copies of the prior convictions was therefore relevant to determine what was going in in the defendant’s mind when he physically cashed the checks. The trial court also gave a limiting instruction to not infer that the prior bad acts made it “‘more likely than not’ that defendant was guilty of the offenses at issue at trial…” Id. at 428.
Brown’s first relevant issue was the appropriateness of the admission of the prior convictions. The defendant argued that the court should have engaged in the four-step balancing process described in State v. Mayfield, 301 Or 631, 645 (1987). The State argued that some sort of new “due process” balancing test governed bad acts rather than the prior process stated in the case law. Brown at 430. The Brown court found that the evidence of the prior convictions “was relevant to show that defendant had not made a mistake or otherwise lacked knowledge of the status of the checks [being forged] at the time he attempted to cash them.” Id. at 432.
The Brown court then considered the probative value of the evidence and the risk of unfair prejudice. It cited Johns, 301 Or at 555, for the proposition that a trial court may consider “the proponent’s need,” “how likely it was that the defendant committed the ‘other act’ at issue, the relative strength or weakness of the evidence as a whole, and the similarity the other act and the offenses at issue.” Brown at 432. Consequently, given the Brown court’s reliance on it, Johns appears to still provide assistance to trial courts post-Williams.
The trial court in Brown looked at the probative value in terms of the need of the evidence in light of how difficult it is to prove knowledge and how it was necessary given that the mental state was an essential issue. The trial court also said the form of the evidence was highly reliable given that they were judgments, thus making the fact that “defendant had committed the other acts [as] uncontroverted.” Id. This is an important consideration in the Nichols elected acts, as none of them are prior convictions and thus are not “highly reliable.” This will weigh heavily in favor of exclusion under the OEC 403 balancing.
The Brown court then went on to analyze whether a limiting instruction would minimize the risk of prejudice, as his “prior convictions [were] potentially prejudicial to the extent that it demonstrated a pattern of similar offenses and presented a risk that jurors would conclude that defendant acted in accordance with his past acts.” Id. The Brown court held that the risk was “mitigated by the court’s limiting instruction…” Id. at 432-433. The Brown court did not find that as a matter of law, in this circumstance a jury instruction would mitigate the risk of unfair prejudice. It just found that it was not an abuse of discretion to make such a finding. In many cases, mitigating the risk of unfair prejudice with a jury instruction is highly unlikely.
The court also held that the 4-step Mayfield balancing test was not misapplied, or, more specifically, that the way the trial court engaged in the balancing test and its results were both not an abuse of discretion given the record. Id. at 433-434. In essence, although the trial court failed to specifically articulate the Mayfield test, the record showed that the test in substance was prescribed. Id.
The Brown court also concluded that failure to give the Leistiko instruction was not plain error. Leistiko held that it was plain error to fail to instruct a jury that it must first find the defendant had committed the actus reus before it can consider prior bad acts as evidence of a defendant’s mental state which was a central issue in the case. Id. at 434. However, in this case, there did not appear to be a dispute about whether or not the defendant had committed the actus reus, and without that dispute, failure to provide a Leistiko was not plain error. Brown at 434-5.
State v. Horner (July 2015) (vehicle theft/ID Theft).
In State v. Horner, 272 Or App 355 (2015), the defendant was charged with stealing a truck, fleeing from the police, and being in possession of stolen items that were found in the truck, including a pair of identification cards. The State offered “nine prior identity theft convictions to prove that the defendant had an intent ‘to deceive or to defraud’ in this case…” Id. at 357. The defendant did not ask for, nor did the trial court give, a Leistiko instruction, as Leistiko was not decided until after the trial. While the Horner court provided a recitation of the changes in the law due to Williams, the court avoided a concrete application of a post-Williams analysis when it concluded that the defendant had not sufficiently preserved the errors he asserted and the errors were not plain. Id. at 367-369.
State v. Logan (August 2015) (DV strangulation).
State v. Logan, 273 Or App 323 (2015) is another case with a failure to preserve error on a Leistiko jury instruction. The Logan defendant was accused of strangulation and DV assault. The State sought to introduce prior instances of violence against the same victim “for the purpose of establishing that defendant had the intent to commit strangulation and fourth-degree assault.” Id. at 324. Ultimately the court again found that the error was not preserved since “We did not ask for a jury instruction that the jury should first find whether the charged acts had occurred before consideration of the prior acts.” Id. at 326. Instead, the defendant opposed admission of the evidence based on a propensity objection. Then, when the court gave a limiting instruction, he did not object to it or offer one of his own. Like Horner, the Logan court also again found that it was not plain error, as there is a possible dispute between the State and defendant on whether Leistiko survives Williams (without discussion the merits of any dispute). Id. at 329.
State v. Brumbach (September 10, 2015) (grandpa child sex abuse).
State v. Brumbach, 273 Or App 552 (2015), is significant by holding that, in light of Williams, an OEC 403 balancing is the only way that a court can ensure that the admission of other acts evidence is not unfairly prejudicial and a violation of fundamental concepts of justice. Id. at 563 (quoting Williams at 18-19). Effectively, the Brumbach court found that its prior holdings in Dunn, Leach, Cavener, and Phillips regarding OEC 403 balancing were no longer sound on that point. Id. at 563-564; State v. Dunn, 160 Or App 422, 981 P2d 809 (1999), State v. Phillips, 217 Or App 93, 174 P3d 1032 (2007); State v. Cavaner, 206 Or App 131, 135 P3d 402 (2006); State v. Leach, 169 Or App 530, 9 P3d 755 (2000).
Brumbach is also significant in how it reminds trial courts and participants that appellate courts only review the record for abuse of discretion and do not determine if the trial court was correct in its OEC 403 balancing. This important reminder was highlighted when the Brumbach court pointed out that the trial court could exercise its discretion by deciding the evidence was unfairly prejudicial and inadmissible. Id. at 565.
State v. Haugen (September 30, 2015) (gang fight).
State v. Haugen, 274 Or App 127 (2015) is significant because it explains the process for performing an OEC 403 balancing test post-Williams. The defendant, a Vago outlaw motorcycle gang (OMG) 1%-er, and another guy beat up a snitch outside a bar. Id. at 128. The State introduced evidence about the OMG found on the internet to show what the tenants of membership were for this gang. Id. at 133. The court held that the evidence was relevant because beliefs of a group can be used to prove beliefs of a member. Id. at 153. However, it is the four-part, step-by-step analysis that is significant to the case at bar:
In the post-Williams analytical framework, the first step is to “address whether [the] evidence is relevant.” Id. at 151. The test for relevance is: “Does the item of evidence even slightly increase or decrease the probability of the existence of any material fact in issue? If the item in evidence affects the balancing of probabilities to any degree, it is logically relevant.” Id. (citing State v. Gailey, 301 Or 563, 567 (1986)). Also, materiality must be determined by examining whether the evidence “reasonably and fairly relate[s] to a fact or issue about the charged crime.” State v. Stone, 104 Or App 534, 540 (1990). If relevant, a court goes to step two. If not relevant, the act is inadmissible and admission is an error of law on appeal (not reviewed for abuse of discretion like the 403 balancing).
Step-2: Propensity Evidence
Next, a trial court must determine if it is a violation of OEC 404 due to it being offered to prove that the defendant acted in conformity with the character trait. State v. Haugen, 274 Or App at 153-154. In other words, is it character evidence because it is offered to show that on a specific occasion, the defendant’s behavior conformed to a set of beliefs that the defendant had? In the case of Haugen, the court specifically held that evidence of the defendant’s membership in a gang urges an inference that, because of his gang membership, defendant adopted the tenants of the gang. Thus, it was offered to convince the jury that his behavior on a specific occasion conformed to a set of beliefs or values that he held and is therefore evidence of defendant’s motive.
Step-3: Is it admissible character evidence?
In effect, Haugen court confirmed the new rule–as long the character evidence proves something for non-propensity purposes, such as motive, it is relevant and admissible, assuming the risk of unfair prejudice does not outweigh the probative value of the evidence. Id. at 156.
Step-4: Is it unfairly prejudicial under OEC 403?
The Haugen court adopts the pre-Williams case law in balancing. First, it defines “unfairly prejudicial” as evidence that has “an undue tendency to suggest a decision on an improper basis, commonly, although not always, an emotional one” and when “the preferences of the trier of fact are affected by reasons essentially unrelated to the persuasive power of the evidence to establish a fact of consequence.” Id. at 157 (citing State v. Lyons, 324 Or 256, 280 (1996)). In summary, the purpose of OEC 403 is to allow “a means of excluding distracting evidence from a trial.” Id. (citing State v. Sewell, 257 Or App 462, 469 (2013)).
The test for unfairly prejudicial evidence that was cited by Haugen is the Mayfield test as quoted by Sewell:
– “Analyze the quantum of probative value of the evidence and consider the weight of strength of the evidence.”
– “Determine how prejudicial the evidence is, to what extent the evidence may distract the jury from the central question [of] whether the defendant committed the charged crime.”
– “Balance the prosecution’s need for the evidence against the countervailing prejudicial danger of unfair prejudice.”
– “Admit all the proponent’s evidence or admit only part of the evidence.”
State v. Haugen, 274 Or App at 157. Next, the court set forth the test for cumulative evidence: “Evidence is cumulative when it demonstrates the same thing as other admitted evidence.” Id. (citing State v. Bradley, 253 Or App 277, 285, 290 P3d 827 (2012)).
Therefore, this Court must determine if the other acts evidence elected by the State distracts from the actual evidence of what happened on the date of the charged crime, and is therefore a sideshow, a legal sleight of hand, keeping attention away from the core facts of the case.
NEXT PAGE: Oregon Evidence Code 403 Balancing: Prior Bad Acts & Due Process (4 of 10)
 In Brumbach, the defendant was accused of sexually abusing his granddaughter who he was previously convicted of sexually abusing. The State offered the prior instances of sexual contact to prove that he was not only sexually attracted to her but had the intent to act upon that attraction. A large part of the opinion deals with whether or not error was preserved, which was preserved by the defendant asking for the court to balance.
 To the extent that Haugen may have found that the gang evidence is propensity evidence, We contends that this may be an erroneous decision, as the gang tenants are actually not propensity evidence. They are evidence of state of mind: since he is in the gang, he is more likely than not aware of what the gang stands for and thus more likely to share a similar belief. Therefore, he is more likely to be motivated by those tenants.
 It is important to note that no cases hold that X or Y bad acts are “not unfairly prejudicial.” Instead, the Court of Appeals is only finding whether or not there is any evidence in the record that could allow the trial court to make the finding of non-prejudice (and therefore not an abuse of discretion). The reason that most cases find that there is not an abuse of discretion for allowing the evidence in is because it is typically only the defendant appealing this abuse of discretion in balancing rulings post-trial (rather than an interlocutory appeal by the State). In summary, there is a lot of discretion for a trial court to find one way or the other regarding unfair prejudice.
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