State v. Hudman, 279 Or. App. 180

Deputies investigated visible marijuana near a house; defendant’s wife said the land was used for medical marijuana and invited deputies inside.
Deputies found ~65+ pounds of marijuana in the home; defendant produced paperwork showing several authorized growers/patients and said he stored marijuana for cardholders.
State charged defendant with unlawful manufacture, delivery, and possession; trial theory: legal operation was a cover for a larger illegal enterprise.
Defendant’s defense: he recently moved back in, believed the operation was lawful, and relayed others’ statements about amounts; he later obtained a medical-marijuana card (post-search).
On rebuttal, witness Katzenbach would testify (and did, outside jury) that about a year later defendant told her he intended to sell seized marijuana in California, and that he stole and sold marijuana she grew on the property.
Trial court admitted Katzenbach’s testimony (the theft/sale portions) under OEC 404(3) as evidence of intent and plan; jury convicted defendant of delivery and possession. On appeal, defendant challenged admission of Katzenbach’s theft/sale testimony; court reversed convictions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility under OEC 404(3): whether testimony that defendant later stole and sold Katzenbach’s marijuana was admissible to prove intent/plan for charged offenses	State: testimony shows a pattern/spurious plan — using lawful marijuana activity to disguise trafficking; relevant to intent/plan	Defendant: testimony is impermissible propensity evidence, not sufficiently similar; prejudicial under OEC 403	Reversed — testimony not sufficiently physically similar to charged acts; inadmissible to show intent or plan under Johns and Leistiko
Need for limiting instruction under Leistiko	State: admission proper; no controlling error about instruction	Defendant: Leistiko requires jury limiting instruction when other-act evidence admitted to show intent/plan	Court need not decide because evidence was inadmissible; error in admission required reversal
Relevance of defendant obtaining a medical-marijuana card after the search	State: probative to credibility/intent	Defendant: not relevant; post-seizure card irrelevant to state of mind at time of search	Court declined to reach this assignment after reversing on other-act error
Prejudice under OEC 403 from admitting Katzenbach’s theft/sale testimony	State: probative value outweighs prejudice	Defendant: unfairly suggests propensity to break marijuana laws	Court: could not conclude the error was harmless; admission likely affected verdict — convictions reversed

State v. Johns, 301 Or 535 (sets five-factor test for admissibility of other-act evidence to prove intent)
State v. Leistiko, 352 Or 172 (plan evidence requires greater similarity than intent evidence; inadmissible other-act evidence cannot be salvaged as plan evidence)
State v. Williams, 357 Or 1 (OEC 404(4) supersedes 404(3) in criminal cases — noted but not applied here)
State v. Pratt, 309 Or 205 (Johns factors applied; negative answer to Johns questions bars intent admissibility)
State v. Turnidge, 359 Or 364 (distinction between true-plan and spurious-plan evidence)
State v. Davis, 279 Or App 223 (appellate application of OEC 404(3) when 404(4) not argued by state)