422 P.3d 282
Or. Ct. App.2018Background
- Defendant was convicted on multiple counts including attempted promoting prostitution (Counts 1 and 10) and attempted compelling prostitution (Count 11) after an incident in which the victim A was assaulted and shot and later reported being forced to post prostitution ads.
- Police recovered two cellphones from defendant; detective Cui found ~16 online prostitution advertisements linked to numbers in defendant's contacts and photos similar to ones on defendant's phone.
- The State offered printed online advertisements (Backpage/Craigslist) as other-acts evidence under OEC 404(3) to show defendant's plan or a "general prostitution enterprise." The trial court admitted them and also found OEC 403 balancing acceptable.
- Defendant objected that the ads were hearsay and violated his confrontation rights, and that they were inadmissible propensity evidence (OEC 404(3)) and unduly prejudicial (OEC 403).
- The Court of Appeals held the ads were not hearsay (they were "verbal acts"—offers to engage in prostitution) and thus did not violate OEC 802 or the confrontation clause, but reversed as to Counts 1, 10, and 11 because the trial court erred admitting the ads under OEC 404(3) to prove a nonpropensity plan, and that error was not harmless for the prostitution counts; other convictions were affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Hearsay / Confrontation | Ads are admissible because they show offers (acts), not out-of-court assertions to prove truth | Ads are hearsay and admission violates OEC 802 and Article I, §11 because declarants didn't testify | Held: Ads are not hearsay—they are verbal acts (offers to engage in prostitution) — no OEC 802 or confrontation violation |
| Admissibility under OEC 404(3) (plan) | Ads show defendant's plan/common scheme to promote prostitution and link him to enterprise | Ads are not sufficiently connected to defendant; they are propensity evidence or irrelevant to a true/spurious plan | Held: Trial court erred—ads were not admissible as nonpropensity "plan" evidence (no true-plan proof; no high degree of similarity for spurious-plan) |
| OEC 403 (prejudice vs probative value) | Probative value outweighs prejudice because ads show intent/enterprise | Prejudicial and unfairly suggest defendant's criminal character | Held: Trial court applied OEC 403 but error under OEC 404(3) is dispositive for the prostitution counts (court did not need to resolve OEC 403 error for those counts) |
| Harmless error for convictions | Even if erroneous, admission might be harmless given other evidence | Ads affected the jury on prostitution counts given contested testimony; not harmless for those counts | Held: Error harmless for assault, menacing, harassment, coercion, weapons, felon-possession convictions; not harmless for attempted promoting and attempted compelling prostitution — those convictions reversed and remanded |
Key Cases Cited
- State v. Turnidge, 359 Or. 364, 374 P.3d 853 (Or. 2016) (distinguishes true-plan vs spurious-plan other-acts analysis under OEC 404(3))
- State v. Causey, 265 Or. App. 151, 333 P.3d 345 (Or. App. 2014) (text messages were hearsay because their content had to be true to be relevant)
- State v. Harris, 242 Or. App. 438, 256 P.3d 156 (Or. App. 2011) (posting an offer for sex for money constitutes prostitution under ORS 167.007)
- Hickey v. Settlemier, 318 Or. 196, 864 P.2d 372 (Or. 1993) (statements that are verbal acts are not hearsay)
- State v. Ruggles, 214 Or. App. 612, 167 P.3d 471 (Or. App. 2007) (confrontation analysis tied to hearsay status)
- State v. Jones, 285 Or. App. 680, 398 P.3d 376 (Or. App. 2017) (high degree of similarity required for spurious-plan admissibility)
- State v. Davis, 336 Or. 19, 77 P.3d 1111 (Or. 2003) (harmless-error framework for erroneous admission of evidence)
- State v. Baughman, 361 Or. 386, 393 P.3d 1132 (Or. 2017) (OEC 404(4) supersedes first sentence of OEC 404(3); distinguishes treatment of propensity vs nonpropensity other-acts)