State v. Fockler, 480 P.3d 960

Background

Defendant was charged with second-degree animal abuse (ORS 167.315) for throwing his dog to the ground; the state needed to prove recklessness (awareness and conscious disregard of a substantial, unjustifiable risk).
The state moved to admit a 2003 incident in which defendant allegedly threw a cat out of his apartment; neighbors called police and the officer’s report described bleeding and hindquarter difficulty; defendant was cited but never prosecuted.
The state sought the cat-incident evidence under OEC 404(3) as probative of defendant’s knowledge of the risks of throwing animals; it relied on State v. Williams and State v. Johnstone.
Defendant objected: asserted the incidents were dissimilar, the cat incident was remote and unconvicted, there was no evidence he knew the cat was injured, and the evidence was unfairly prejudicial under OEC 403.
The trial court admitted the evidence for the limited purpose of proving knowledge and found it survived OEC 403 balancing; the jury convicted defendant and he appealed.
The Court of Appeals affirmed: (1) the cat incident was admissible under OEC 404(3) to show subjective awareness of risk, (2) the defendant’s contention about lack of knowledge of the cat’s injury was unpreserved, and (3) the trial court adequately performed the OEC 403 balancing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility under OEC 404(3): Is the 2003 cat incident admissible to prove knowledge/recklessness?	The prior incident shows defendant was subjectively aware that throwing an animal can cause injury — relevant nonpropensity purpose (knowledge).	The incidents are too remote and dissimilar; no conviction; no evidence defendant knew the cat was injured so it cannot support an inference of learned risk.	Admissible: facts sufficiently similar to permit a reasonable inference of subjective awareness; weaker proof does not render evidence inadmissible. The claim about lack of knowledge of the cat’s injury was unpreserved.
OEC 403 balancing: Did probative value substantially get outweighed by unfair prejudice and did the court make an adequate record?	Probative value is high for proving recklessness and outweighs prejudicial impact.	Probative value is minimal; evidence is emotionally charged and likely to cause improper propensity inferences; court failed to make a sufficient 403 record.	No abuse of discretion: trial court heard arguments, recited OEC 403, considered objections, and its ruling—viewed with the parties’ arguments—shows adequate balancing under Anderson.
Preservation: Did defendant preserve argument that the state failed to show he knew the cat was injured?	State: defendant did not preserve that argument before the trial court and thus cannot raise it on appeal.	Defendant: contends there was no evidence he knew the cat was injured, so the 404(3) inference is unsupported.	Unpreserved: defendant never told the trial court he lacked knowledge of the cat’s injuries, so appellate review is barred on that point.

Key Cases Cited

State v. Williams, 357 Or 1 (2015) (framework for admitting other-acts evidence for nonpropensity purposes).
State v. Johnstone, 172 Or App 559 (2001) (prior diversion/DUII admissible to show subjective awareness of risk).
State v. Skillicorn, 367 Or 464 (2021) (proponent must identify the logical path linking other-acts evidence to the nonpropensity purpose).
State v. Baughman, 361 Or 386 (2017) (if other-acts evidence is relevant for nonpropensity purpose, then apply OEC 403 balancing).
State v. Anderson, 363 Or 392 (2018) (trial court need not recite detailed balancing; ruling plus parties’ arguments may suffice to demonstrate 403 balancing).
State v. Davis, 290 Or App 244 (2018) (standard of review for OEC 404(3) admissibility).
Peeples v. Lampert, 345 Or 209 (2008) (preservation rules require raising issues at trial to allow development of the record).
State v. Hardman, 196 Or App 522 (2004) (weaker evidence of notice does not automatically make other-acts evidence inadmissible).