410 P.3d 283
Or. Ct. App.2017Background
- Defendant was tried on multiple charges; the state sought to admit evidence of his prior violent acts against two women (S and K) to prove intent/hostile motive.
- Trial court admitted testimony from S and K about incidents that resulted in convictions and instructed the jury on the evidence uniformly; the jury convicted on six counts and acquitted on attempted second-degree assault.
- Defendant appealed, arguing the prior-act evidence was inadmissible propensity evidence, not sufficiently similar for the doctrine of chances (Johns test), not admissible as hostile-motive evidence because the prior acts involved different victims, and that the court failed to do OEC 403 balancing.
- The state defended admission under both the doctrine of chances and the hostile-motive theory; parties litigated hostile motive below.
- The appellate court reviewed admissibility under OEC 404(3) (motive/hostile motive), concluded the evidence was admissible to show defendant’s hostile motive toward domestic partners, and affirmed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of prior acts under OEC 404(3) | Evidence of prior assaults on S and K is admissible to show intent/hostile motive toward victim | Prior acts only show propensity; not admissible because victims differ and incidents not sufficiently similar under Johns | Admissible as hostile-motive evidence; supports inference defendant tends to act violently toward domestic partners; affirmed |
| Application of Johns similarity analysis | Johns/doctrine-of-chances supports admission (alternative theory) | Johns similarity required and not satisfied for S and K incidents | Court treated hostile-motive as independent basis; Johns analysis not required for hostile-motive intent evidence; assumed without deciding any error under doctrine of chances |
| Requirement of Leistiko procedural prerequisites | Leistiko applies only to doctrine-of-chances intent proof; alternative hostile-motive basis obviates Leistiko problem | Leistiko prerequisites were not followed for intent evidence | Leistiko prerequisites not required when evidence admitted for hostile motive; no error |
| OEC 403 balancing | State did not concede a need for additional balancing on admitted convicted-incident evidence | Trial court failed to conduct OEC 403 balancing before admitting prior-act evidence | Defendant failed to preserve 403 argument for admitted evidence; no plain error; circuit court did not plainly err |
Key Cases Cited
- State v. Moen, 309 Or. 47 (explains hostile-motive admissibility and links hostile relationship to mens rea)
- State v. Johns, 301 Or. 551 (doctrine of chances reasoning for prior-act evidence)
- State v. Yong, 206 Or. App. 531 (admits prior assaults on different victims to show tendency to assault domestic partners for hostile motive)
- State v. Turnidge, 359 Or. 364 (clarifies Leistiko prerequisites apply only to doctrine-of-chances intent theory)
- State v. Tena, 281 Or. App. 57 (intent-by-motive evidence not subject to Johns similarity analysis)
- State v. Wright, 283 Or. App. 168 (standard of review and hostile-motive as subspecies of motive)
- State v. Clarke, 279 Or. App. 373 (hostile-motive evidence sheds light on mens rea)
- State v. Hampton, 317 Or. 251 (definition and relevance of motive)
- State v. Leistiko, 352 Or. 172 (procedural prerequisites for admitting prior-act evidence under doctrine-of-chances discussed)