384 P.3d 521
Or. Ct. App.2016Background
- Defendant was convicted of fourth-degree domestic assault for allegedly punching and strangling his domestic partner (K) during a bedroom dispute; charge of strangulation dismissed at close of state’s evidence.
- State sought to admit evidence of two prior assaults (1997 and 2004) against other domestic partners, alleging similarity (punching, strangulation, grabbing by hair) and hostile motive.
- Trial court deferred ruling until after state proved actus reus, then admitted the prior-act evidence on two independent non‑propensity grounds: (1) Johns/doctrine-of-chances (intent/absence of accident) and (2) Moen (hostile motive); court said it would give a limiting instruction and gave a modified Leistiko-style instruction.
- Defendant argued on appeal that (a) the Johns test was required and the prior acts were insufficiently similar, (b) the court plainly erred by failing to give a proper Leistiko instruction requiring the jury first to find the charged act, and (c) post-Williams, the court should have performed OEC 403 balancing before admitting the evidence.
- The appellate court held that Turnidge abrogates Moen’s application of the Johns test where prior-act evidence is offered to prove motive (a non-doctrine-of-chances theory); because the evidence was admissible under Moen (motive) the court need not decide the Johns challenge and no Leistiko instruction was required. The court also declined to find plain error for failure to perform OEC 403 balancing because no proper motion for balancing was made.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of prior‑acts evidence | Prior acts admissible to show intent/absence of accident under Johns and hostile motive under Moen | Prior acts were impermissible character/propensity evidence; Johns factors not met (too dissimilar; broad victim class) | Evidence admissible under Moen (hostile motive); Turnidge clarified Johns applies only to doctrine‑of‑chances claims, so trial court did not err in declining to apply Johns for motive theory |
| Requirement of Leistiko limiting instruction | State submitted a Leistiko-style instruction; trial court gave a modified instruction | Defendant: trial court plainly erred by not instructing jury to consider prior acts only after finding actus reus | No plain error: Leistiko instruction required only when doctrine‑of‑chances theory governs; because motive theory was independent, no Leistiko instruction was required |
| OEC 403 balancing after Williams | (Supplemental) Williams requires OEC 403 balancing for admission of other‑acts evidence in some contexts; defendant argues balancing required and would have excluded evidence | State: balancing required only on proper motion; no request made here | No plain error: failure to perform OEC 403 balancing not obvious because Turnidge indicates balancing is required on a proper motion; defendant did not move for balancing, so cannot show plain error |
| Need to apply Johns test when admitting motive evidence | — | Defendant: Moen required Johns analysis for motive evidence; trial court erred by not applying Johns | Court: Turnidge overruled that aspect of Moen; Johns applies only to doctrine‑of‑chances intent claims, not to motive evidence offered to prove intent |
Key Cases Cited
- State v. Johns, 725 P.2d 312 (Or. 1986) (formulated doctrine‑of‑chances test and six‑factor Johns inquiry for intent/absence of mistake)
- State v. Moen, 786 P.2d 111 (Or. 1990) (prior hostile acts relevant to prove hostile motive and intent; applied Johns factors)
- State v. Turnidge, 374 P.3d 853 (Or. 2016) (clarified Johns is limited to doctrine‑of‑chances theory; motive/plan evidence need not meet Johns)
- State v. Leistiko, 282 P.3d 857 (Or. 2012) (Leistiko instruction required when doctrine‑of‑chances intent evidence is admitted unless defendant concedes act)
- State v. Pitt, 293 P.3d 1002 (Or. 2012) (Leistiko/Pitt framework: actus reus must be established or stipulated before jury may consider prior‑act evidence offered for intent)
- State v. Williams, 346 P.3d 455 (Or. 2015) (OEC 404(4) supersedes 404(3) in criminal cases; due‑process concerns require OEC 403 balancing in certain prior‑acts contexts, notably child sexual abuse)