483 P.3d 1167
Or. Ct. App.2021Background
- Defendant was convicted of first‑degree kidnapping, attempted first‑degree sodomy, first‑degree sexual abuse, and fourth‑degree assault based on an attack on a woman (S) who was ambushed, assaulted, blindfolded, groped, and escaped; DNA from a mask and fingernail swabs matched defendant.
- The State sought to introduce defendant’s two prior sexual‑assault convictions (1989 rape after ambush; 2003 attack while masked and wearing a stocking cap) as other‑acts evidence.
- The trial court admitted the prior convictions under OEC 404(3) as non‑propensity evidence to prove defendant’s sexual intent, applying the Johns factors and performing an OEC 403 balancing; the court excluded identity as a purpose.
- At trial the State presented the prior victims’ testimony, defendant’s writings expressing sexual kidnapping desires, photographs, DNA, and S’s testimony; the jury convicted on all counts.
- On appeal, after the Oregon Supreme Court decided State v. Skillicorn, the Court of Appeals held that the trial court’s admission of the prior convictions under OEC 404(3) rested on propensity reasoning disallowed by Skillicorn.
- The court concluded the error was not harmless (the other‑acts evidence was highly prejudicial and bolstered the victim’s credibility) and reversed and remanded the convictions.
Issues
| Issue | State's Argument | Levasseur's Argument | Held |
|---|---|---|---|
| Admissibility of prior convictions under OEC 404(3) | Prior acts were relevant to intent (and identity), showing similar circumstances that make sexual purpose likely | Prior convictions were only admissible to show propensity and were unfairly prejudicial | Reversed: trial court erred—admission relied on propensity reasoning barred under Skillicorn |
| Application of doctrine of chances / Johns factors | Johns analysis supported relevance and probative value; OEC 403 balancing allowed admission | Johns (and doctrine of chances) cannot be used to admit propensity evidence under OEC 404(3) | Skillicorn overruled Johns to the extent it allowed propensity inference; doctrine of chances cannot rescue the evidence under OEC 404(3) |
| Harmless‑error on convictions | Physical and forensic evidence (DNA, belongings, defendant’s writings) made the error harmless | Prior‑acts testimony was highly prejudicial and bolstered S’s credibility on central issues | Not harmless: admission likely affected verdicts on all counts given the severe prejudice of propensity‑based evidence |
| Motion for judgment of acquittal on kidnapping (sufficiency) | Evidence of movement to a secluded clearing, force, and interference supported kidnapping under asportation theory | Argued insufficient evidence of kidnapping | Denial affirmed: admissible evidence could support kidnapping under asportation theory |
Key Cases Cited
- State v. Skillicorn, 367 Or 464 (2021) (OEC 404(3) bars other‑acts evidence that depends on propensity reasoning; Johns doctrine of chances disapproved to that extent)
- State v. Johns, 301 Or 535 (1986) (previously used doctrine of chances analysis for other‑acts evidence; later overruled in part by Skillicorn)
- State v. Baughman, 361 Or 386 (2017) (articulates the two‑step framework: relevance under OEC 404(3) then OEC 403 balancing)
- State v. Davis, 336 Or 19 (2003) (standard for harmless evidentiary error: little likelihood the error affected the verdict)
- State v. Wirkkala, 290 Or App 263 (2018) (assess quality of erroneously admitted evidence versus properly admitted evidence when reviewing harmlessness)