State v. Davis, 381 P.3d 888

Defendant checked out 50 books (maximum per patron) from four Clackamas County libraries and failed to return them; police recovered one altered book sold to Powell’s and defendant admitted selling several others via Craigslist.
State charged four theft counts (aggregate value per library). Defendant admitted the act but claimed some sales were accidental, raising intent/mistake as the key dispute.
State sought to admit two prior thefts: (1) theft from Multnomah County Library (defendant pleaded guilty; books checked out and some sold the same day; bar codes altered), and (2) theft from a Friends of the Tigard Library book sale (defendant pleaded guilty to taking books without paying).
Trial court admitted both prior acts under OEC 404(3) as probative of absence of mistake and plan; defendant challenged only the Tigard book-sale evidence on appeal.
Court of Appeals held the Tigard evidence was erroneously admitted under OEC 404(3) because its physical elements were too dissimilar to charged conduct, but the error was harmless given the unchallenged Multnomah evidence.
Court also agreed that imposing $510 in court-appointed attorney fees without any record of ability to pay was plain error and reversed that portion of the judgment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of Tigard book-sale prior act under OEC 404(3) (doctrine of chances/absence of mistake)	Prior thefts (Multnomah and Tigard) show lack of mistake, plan, preparation, knowledge; probative value outweighs prejudice	Tigard theft involved taking without permission (different actus reus) and thus is not sufficiently similar to charged conduct to be probative of lack of mistake or plan	Error to admit Tigard evidence under OEC 404(3); physical elements too dissimilar to meet Johns test, but error was harmless given strong Multnomah evidence
Imposition of $510 court-appointed attorney fees without evidence of ability to pay	Fees appropriate	Trial court erred by imposing fees absent any record defendant could pay	Trial court plainly erred; appellate court exercised discretion to vacate the $510 fee award

State v. Johns, 301 Or. 535, 725 P.2d 312 (1986) (doctrine of chances; six-factor test for admitting prior acts to show absence of mistake)
State v. Pratt, 309 Or. 205, 785 P.2d 350 (1990) (compare similarities and differences in physical elements; significance of point-by-point correspondence)
State v. Leistiko, 352 Or. 172, 282 P.3d 857 (2012) (greater similarity required to admit other-act evidence as proof of plan)
State v. Williams, 357 Or. 1, 346 P.3d 455 (2015) (OEC 404(4) and limits on prior-bad-act evidence in child-sexual-abuse cases)
State v. Turnidge, 359 Or. 364, 374 P.3d 853 (2016) (clarifies Williams; confines analysis where prior-act evidence is offered for non-propensity purposes under OEC 404(3))
State v. Deloretto, 221 Or. App. 309, 189 P.3d 1243 (2008) (acts must bear close point-by-point correspondence to be probative of intent)
State v. Davis, 336 Or. 19, 77 P.3d 1111 (2003) (harmless-error framework for affirming convictions despite trial error)
Ailes v. Portland Meadows, Inc., 312 Or. 376, 823 P.2d 956 (1991) (appellate discretion to correct trial court errors)