311 P.3d 916
Or. Ct. App.2013Background
- Defendant convicted of one count of second-degree assault (DV), two counts of fourth-degree assault (DV), failure to perform duties of a driver, tampering with evidence, and disorderly conduct.
- Defendant moved in limine to exclude two prior DV incidents as impermissible character evidence under OEC 404(3).
- Prior incidents from 1996 and 2000 involved severe violence toward former girlfriend and fiancée; theories of relevance were that these acts showed intent or related traits.
- Trial court admitted the prior acts to show intent, identity, or absence of mistake or accident; case proceeded as a bench trial with witness testimony.
- On remand, Leistiko held prior misconduct is admissible to prove intent only when actus reus is admitted or jury instructed that evidence applies only after actus proven; thus the prior acts were inadmissible for intent here.
- State conceded some theories were unavailable after Leistiko; Pitt bars raising new admissibility theories on appeal when not argued at trial; court ultimately found error not harmless and reversed/remanded on counts 1, 3, 4, 7, 8, 9.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prior misconduct was admissible under OEC 404(3) after Leistiko | State argued prior acts showed intent/motive | Leistiko limits use of prior acts for intent | Not admissible for intent under Leistiko. |
| Whether the State could rely on alternative admissibility theories (motive/plan) | Alternative theories supported admissibility | Pitt prevents new theories on appeal | Unavailable as basis for admission. |
| Whether erroneous admission was harmless | Evidence related to central issue of guilt | Evidentiary error may be harmless | Not harmless; reversal warranted. |
Key Cases Cited
- State v. Leistiko, 352 Or 172 (Or. 2012) (limits use of prior misconduct to prove intent unless actus reus admitted or jury instructed)
- State v. Johns, 301 Or 535 (Or. 1986) (established Johns factors for admissibility of prior acts under 404(3))
- State v. Pitt, 352 Or 566 (Or. 2012) (cannot raise new admissibility theories on appeal when not argued at trial)
- Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634 (Or. 2001) (limits on affirming on alternative grounds)