Dеfendant appeals a judgment convicting him of solicitation to commit aggravated murder. The trial court admitted “other acts” evidence, over his objection, about his earlier conviction for soliciting the murder of the same victim. In defendant’s first three assignments of error, he contends that the other acts evidence was inadmissible to prove his intent to solicit the commission of aggravated murder because he never stipulated to the charged conduct and the trial court failed to instruct the jury that it should not consider the evidence unless it first determined that the charged conduct had occurred. Alternatively, he argues that, even if the evidence was admissible under state evidentiary principles, the admission of the other acts evidence deprived him of a fair trial, violating the Due Process Clause of the Fourteenth Amendment to the United States Constitution. We conclude that defendant’s first argument is not prеserved, and we do not engage in “plain error” review because defendant does not request it. We reject defendant’s second argument because the trial court did not abuse its discretion when it concluded that the probative value of the evidence was not outweighed by the potential fоr unfair prejudice. In his fourth through sixth assignments of error, defendant challenges Oregon’s use of nonunanimous jury verdicts. We reject those assignments without further discussion. State v. Bowen,
A jury found defendant guilty, so we recite the facts in the light most favorable to the state. State v. Johnson,
After his conviction, defendant was incarcerated at Two Rivers Correctional Institution (TRCI), and was placed in a cell with Barnes. At TRCI, defendant discussed thе victim and her lawsuit against him with Barnes on many occasions. He also showed Barnes financial account statements that purported to show money in an account held jointly by defendant and the victim. Barnes feigned interest in arranging for the victim’s murder in exchange for $1,000, and defendant provided him with a list of possiblе addresses where the victim might be found.
An Oregon State Police detective questioned defendant, who explained that he was paying Barnes for legal work at the prison and that he had not arranged to kill the victim. He claimed that any statements аbout killing the victim were made in jest, and that Barnes was trying to set him up.
Before trial, the state filed a motion in limine seeking a ruling as to the admissibility of evidence of defendant’s prior acts. The state argued that evidence of defendant’s 2009 conviction for soliciting the murder of the victim was relevant to show defendant’s intent to solicit the murder of the same victim in this сase. In particular, the state sought to offer (1) the interrogation of defendant in which he discusses facts surrounding his prior convictions, (2) testimony from a detective regarding his investigation in the prior case, and (3) documentation of defendant’s prior convictions. The state contended that under OEC 404(3) and State v. Johns,
At the hearing, defendant conceded that the evidence wаs relevant to prove intent, stating that “I think it probably is credible and it’s relevant, but I think the [crux] of the situation is that it’s just so potentially extremely prejudicial, that to present that to the jury is stepping over the line and the defendant would not have a fair jury.”
The trial court examined each “Johns factor” and ruled that the other acts evidence
At trial, defendant generally renewed his objection to the other acts evidence and asked the court to instruct the jury not to consider that evidence to prove defendant’s propensity to commit the charged crimе. The court gave that limiting instruction to the jury during the trial, and again before the jury began deliberations. The jury convicted defendant of solicitation to commit aggravated murder.
On appeal, defendant challenges the admissibility of the other acts evidence. He advances two arguments as to why the cоurt erred. First, he argues that, under State v. Leistiko,
We begin with defendant’s first argument, which relies on Leistiko and Pitt. Both cases dealt with the admission of other acts evidence to prove intent, and both were decided аfter defendant’s trial in this case.
In Leistiko, the defendant had been charged with raping three victims. To prove that each of the three had not consented to defendant’s sexual advances, the state offered evidence that defendant had forcibly compelled a fourth woman to engage in sexuаl intercourse with him.
On appeal, defendant contends that neither condition was met in this case; that is, defendant never stipulated to the charged conduct and the trial court failed to give the jury a “conditional relevance” instruction. Accordingly, defendant asserts that admission of the othеr acts evidence was erroneous, and the error was prejudicial. The state
We agree that defendant failed to preserve the issue that he now raises on appeal. To preserve a claim of error, the party must provide the trial court with an explanation of his objection that is specific enough to afford the court an opportunity to analyze any alleged error. State v. Wyatt,
We note that we have reviewed challenges brought under Leistiko as “plain error.” See, e.g., State v. Jones,
That leaves defendant’s second argument—that the admission of the other acts evidence violated his due process rights. The state contends that defendant also failed to preserve that issue because the only mention of a “fair trial” was in the cоntext of the trial court’s evaluation of the Johns factors. We agree with the state that, to the extent that defendant is making a due process argument that goes beyond his objection at trial that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice, that issue is unрreserved.
To the extent that defendant is reprising the argument that he made to the trial court, we review the trial court’s ultimate determination as to whether the evidence was unfairly prejudicial for an abuse of discretion. State v. Shaw,
Affirmed.
Notes
Defendant filed a supplemental pro se brief raising a challenge to the trial cоurt’s denial of his request to appoint substitute counsel. We reject that challenge without published discussion.
OEC 404(3) provides:
“Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible fоr other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
In Johns, the Supreme Court identified factors that a court should consider in determining whether evidence of prior misconduct is probative of a defendant’s state of mind as opposed to doing nothing more than establishing a defendant’s propensity for engaging in criminal conduct:
“(1) Does the present charged act require proof of intent?
“(2) Did the prior act require intent?
“(3) Was the victim in the prior act the same victim or in the same class as the victim in the present case?
“(4) Was the type of prior act the same or similar to the acts involvеd in the charged crime?
“(5) Were the physical elements of the prior act and the present act similar?
“(6) If these criteria are met, is the probative value of the prior act evidence substantially outweighed by the danger of unfair prejudice, confusion of issues or misleading the jury, undue delay or presentation of cumulative evidence?”
Subsequently, we held that the legislature’s enactment of OEC 404(4) in 1997 “precludes OEC 403 balancing of probative value against, among other things, danger of undue prejudice” except as required by the state or federal constitutions. State v. Arnold,
In State v. Williams,
A discussion of Pitt is unnecessary to our analysis.
As noted, defendant conceded at trial that the evidence was relevant to prove intent, and did not advance any argument as to the “minimal” relevance of the evidence. He focused solely on prejudice.