Defendant appeals a judgment of conviction for murder, ORS 163.115, for intentionally beating the victim to death with a baseball bat. Defendant contends that the trial court erroneously admitted prior act evidence that (1) defendant threatened the victim with a baseball bat between seven and 10 days before the murder and (2) that, about a month before the crime, defendant sat on the front porch of his home for several hours ruminating about whether to kill his ex-girlfriend, while holding a baseball bat.
Defendant and the victim were roommates; they argued frequently, and the greatest source of animosity between them was the victim’s relationship with defendant’s ex-girlfriend, Sisson. After defendant and Sisson broke up, Sisson became close friends with the victim and often came over to their apartment to spend time with the victim. The victim ignored defendant’s requests to not allow visits by Sisson. As a result, defendant became angry with Sisson and the victim and felt disrespected by their association. The victim told defendant that he had been intimate with Sisson.
Defendant’s hostility to Sisson and the victim grew. Defendant would sometimes say that he missed Sisson. At other times, he stated that he would rather she were dead and that he wanted to kill her. Defendant wrote in his journals in graphic detail about killing her.
For about two or three weeks before the murder, defendant repeatedly stated that he wanted to kill the victim, and he talked about beating the victim with a baseball bat “nonstop.” During that time, defendant also expressed a general desire to kill a person with a baseball bat. Defendant speculated that, if someone wronged him, hitting that person in the head with a bat would make him feel better. Defendant further said that he would love to hit someone in the head to hear the sound of a head “splitting open from a baseball bat.” Defendant also asked a friend to paint a mural of “blood spatter” on his bedroom door so he could “lay on his bed” and see “what it would look like after he had bashed somebody with a baseball bat.” Defendant kept two baseball bats in his apartment, and he nearly always had at least one nearby.
On the night of the murder, defendant’s neighbor, Welch, heard shouting coming from thе downstairs apartment. The person shouting said, “mother-fucker,” “white ass mother-fucker,” “back-stabber,” “you took everything I have,” and “you took my girl.” Welch also heard “thrashing and strikes” and the shouter saying, “yeah, yeah” with intensity in between the sound of the strikes. Welch called the police to report the disturbance. Police officers responded, but left without entering defendant’s apartment. After the police left, Welch decided to investigate because the fight had “sounded pretty rough.” He entered defendant’s apartment and discovered the victim lying on the ground with a large wound on the back of his head and blood splattered on the wall. Welch again called the police. The victim died on the way to the hospital. The cause of death was “multiple blunt force blows to the head.”
Defendant was implicated in the crime by both physical and circumstantial evidence. The baseball bat was discovered in the bushes along a route that defendant habitually walked. Shortly after the crime, a person matching defendant’s description was recorded on a security camera on that route near the location where the bat was discovered. The victim’s blood was on the bat and the jacket, pants, and shoes that defendant was wearing on the night of the murder. Defendant had a bruise on his left leg, which was consistent with swinging a blunt object with his right hand. Although Welch did not initially identify defendant as the person he heard shouting, at trial he testified that he was about 85 to 90 percent sure that the voice that he heard was defendant’s. Finally, while detained before trial, defendant confessed to three other inmates in the Deschutes County jail.
Prior to trial, the court determined that evidence of two prior acts by defendant was admissible. Defendant assigns error to those determinations. First, in a pretrial hearing on the state’s motion in limine, the state offered testimony from Hodgkins, defendant and the victim’s onetime roommate, and Richmond, an acquaintance of defendant, that defendant threatened the victim with a baseball bat seven to 10 days before the victim was killed. According to those witnesses, one night, while defendant, the victim, Hodgkins, and Richmond were using drugs in defendant’s apartment, defendant suddenly began “wielding” a baseball bat at the victim. The victim retreated to his bedrоom and pleaded with defendant to allow him to leave the apartment. Defendant asked
In its motion in limine, the state argued that the evidence was admissible to show defendant’s “intent and lack of mistake,” “motive and plan,” and its “effect on the victim” under OEC 404(3)
Defendant responded that the prior acts evidence was not admissible under Johns because Johns allows that evidence only when a defendant admits to committing the actus reus of the crime but denies a culpable mental state. Defendant asserted that he did not strike the victim with the bat. Defendant further disputed whether the evidence was relevant to show motive, because neither Richmond nor Hodgkins testified about the “basis for the argument” that led to defendant threatening the victim with the bat and, therefore, the state could not connect that evidence with any “particular motive” for the crime. Defendant also argued that the trial court could not admit the evidence without first determining that its probative value was not outweighed by the danger of unfair prejudice under OEC 403.
The trial court ruled that the evidence was admissible, and explained its reasoning:
“So the Court has had an opportunity to review the case law with regard to the events that ocсurred with regard to [the victim] and the threats that were made by the Defendant to [the victim] and theswinging of the baseball bat. And from the Court’s perspective, under all the case law, those acts do come in and they * * * can be introduced against [defendant] for purposes in the trial.
“The acts are relevant proof both of intent, and this act requires proof of intent. It involved the same victim and they are similar in nature as the, what the State is alleging occurred.”
The trial court explained that the evidence was also admissible under OEC 404(4) and concluded that it was not required to “do a balancing in terms of the prejudice, the fairness issue to the Defendant unless it’s required constitutionally.” However, the court also concluded that, “even if I were to do a balancing [under OEC 403], it would not be unduly prejudicial to the Defendant for this evidence to come in. It is relevant and it does come in, and even under a balancing test, it would not be unduly prejudicial.”
As evidence of a second prior act, the state elicited deposition testimony from one of defendant’s ex-girlfriends, Blair. Blair testified that defendant was very angry with Sisson while they were together and that, about a month before the murder, he had sat on his porch for two or three hours discussing whether to kill Sisson. While holding the baseball bat, defendant wondered whether it was worth going to prison to kill Sisson. Blair further testified that defendant thought that the victim was “messing around” with Sisson and that he had referred to the victim as a “backstabber.” During the deposition, defendant objected to thе testimony about defendant sitting on the porch and contemplating whether to kill Sisson on the grounds of “403, improper character evidence and relevance.”
At the pretrial hearing, defendant reiterated his objections to the evidence on the ground that it was irrelevant and that it was improper propensity evidence. However, defendant did not reiterate his objection to the evidence under OEC 403 or request that the court balance the probative value of the evidence against its prejudicial effect. The state responded that the evidence was relevant because “the relationship between the victim and * * * Sisson * * * angered [defendant]” and led to the murder. The court ruled that the evidence was аdmissible, explaining:
“The fact of the matter is Ms. Sisson is integrally, as [the prosecutor] stated, is she’s an integral part of the process. It’s the State’s theory that, that he killed [the victim] as a result of the contact he was having with Ms. Sisson. And so whether there is animosity towards Ms. Sisson all goes to the whole issue of motive and whether he, what his intent was and whether he had ill will towards Ms. Sisson and [the victim].
“And then also related to that comes the issue of the bat which comes up in her testimony as well, which again relates to the alleged crime here the State’s contending that [defendant] acted upon. So it goes towards the intent, it goes, it shows proof of intent both with regard to Ms. Sisson and with regard to the current crime.
“There, the two parties are interrelated, Ms. Sisson and [the victim] arе inter, interrelated with each other. And we don’t know what his intent was in terms of — you know, other than he was talking about it and holding the bat, but we don’t know whether he had, his intent was to use the bat.”
Defendant was subsequently tried to a jury and found guilty of murder. Evidence of those two prior acts was admitted at trial. On appeal, defendant challenges the admission of the prior acts evidence under OEC 404(3). Defendant relies on State v. Leistiko,
In a supplemental brief, defendant contends that Williams does not alter the analysis with regard to the relevance of the prior acts evidence in this case or the need for limiting instructions under Leistiko. However, defendant asserts that, under Williams, the trial court was required to perform OEC 403 balancing before admitting the prior acts evidenсe and that it therefore erred in failing to do so.
For its part, the state agrees that Williams does not change any analysis of the relevance of the prior acts, but asserts that Williams does not require OEC 403 balancing. Instead, according to the state, reversal is compelled only if the admission of the evidence rendered defendant’s trial fundamentally unfair, and that determination is made after a more limited form of “due process” balancing. Moreover, the state argues that defendant failed to preserve his OEC 403 arguments, and — with respect to the evidence that defendant threatened the victim with a baseball bat — the trial court actually engaged in balancing under OEC 403.
Before we resolve defendant’s assignments of error, we begin by addressing the effect of Williams on this case with respеct to any analysis of the relevance of the evidence and the need to balance any probative value of that evidence against any prejudicial effect of its admission under OEC 403 or the Due Process Clause. We agree that Williams does not radically alter our evaluation of the relevance of the challenged evidence. Although Williams held that OEC 404(4) “supersedes” OEC 404(3), the types of relevant evidence set out in OEC 404(3) (“motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident”) remain viable theories for the admission of prior acts evidence. See State v. Turnidge (S059155),
We now turn to defendant’s first assignment of error.
On the merits, defendant concedes on appeal that his prior threats to the victim were relevant under Moen,
As explained in Turnidge, a Leistiko instruction is required only when evidence of prior acts is admitted to show a defendant’s intent in a case where the relevance of that evidence depends on the application of the doctrine of chances. See Turnidge,
Subsequently, in Leistiko, the court examined the admissibility of prior acts evidеnce offered to prove intent where the defendant did not concede committing the actus reus of the crime.
On appeal, the state asserted that the evidence was properly admitted under a doctrine of chances theory, arguing that “the similarity between the uncharged offense and each of the charged offenses was sufficient fоr the fourth woman’s testimony to be relevant to prove defendant’s intent with regard” to the charged offenses. Id. at 182. The Supreme Court rejected that argument, explaining that
“the doctrine of chances rests on the proposition that the defendant either concedes the act that requires proof of a mental state or the trial court instructs the jury not to consider the uncharged misconduct evidence offered to prove intent unless and until the jury finds the act that requiresproof of intent to have been done and is proceeding to determine intent.”
Id. at 185. Thus, evidence offered under a doctrine of chances theory is only “conditionally relevant.” Id. at 186. That is so because evidence that the defendant has repeatedly done some act does not become relevant to show that he or she committed the charged act with the requisite culpable mental state until the charged act has been proved. Id. Because the defendant in Leistiko did not concede the act and the trial court did not provide the required limiting instruction, the evidence posed “an unacceptable risk that the uncharged misconduct evidence [would be] admitted to prove the act, not the defendant’s mental state.” Id. at 186; see also State v. Pitt,
Here, in contrast, the evidence was not offered to show, based on the doctrine of chances, that defendant acted intentionally or voluntarily because he acted intentionally in the same way in the past. Rather, the evidence was relevant to show defendant’s hostile motive toward the victim. As the court explained in Moen, “a defendant’s prior hostile acts toward a homicide victim or toward a class of persons to which the victim belongs” is relevant “to the issue of a hostile motive, which in turn is probative of intent.”
Thus, the evidence that defendant threatened the victim with a baseball bat seven to 10 days before the victim was bludgeoned to death with a baseball bat was relevant to defendant’s hostile motive toward the victim: It tended to show that defendant’s animosity toward the victim was so strong that he was moved to engage in violence against him. Its relevance did not depend on the doctrine of chances: It did “not depend on any inference that the defendant had committed similar past acts with sufficient frequency that it becomes increasingly unlikely — with each new act committed — that he committed the act” without a culpable mental state. Turnidge,
Here, even though the trial court ruled that balancing was not required, the court nevertheless concluded that the evidence would still be admissible under OEC 403. Although its discussion was brief, the record reveals that the trial court engaged in a conscious process of balancing the costs and benefits of the evidence. The court made findings on the probative value of the evidencе: The court found that the prior act evidence was similar to the crime, noting that the “nature” of the conduct was similar and the victim was the same. See Turnidge,
The court’s findings and conclusions are amply supported by the record. The evidence was highly probative; there was a high degree оf similarity between the threats to the victim and the crime, and it was also close in time to the murder. As such, the prior act “foreshadow [ed] [the] commission” of the charged crime. Kaylor,
Turning to defendant’s second assignment of error, defendant contends that the trial court erred in admitting the evidence that defendant sat on the porch and ruminated about killing Sisson. Defendant first asserts that the evidence was improperly admitted because it was not relevant to prove his motive or intent. Defеndant argues that the evidence was not relevant because his conduct in holding the bat while sitting on the porch was not sufficiently similar to the eventual murder, and he did not mention the victim while weighing the costs and benefits of killing Sisson. The state responds that the evidence was relevant to show his motive and was properly admitted for that purpose.
We conclude that the state is correct. To start, defendant’s argument that the evidence was not sufficiently similar to the charged incident is unavailing. Where prior act evidence is offered to prove motive, it “need not have the same physical elements as the crime charged.” State v. Garrett,
The fact that defendant did not mention the victim while ruminating about killing Sisson does not mean that the evidence was not relevant to defendant’s motive. For evidence of motive, the state must establish “some sort of logical connection” between the evidence and the crime, but “to establish relevancy, the state need not affirmatively prove ‘why’ the [challenged evidence] made it more likely that [the defendant] committed the crime[].” Turnidge,
Thus, the evidence that defendant ruminated about killing Sisson on the porch is not irrelevant simply because the jury would have had to infer its connection to the charged crime by viewing the evidence in the context of the rest of the state’s case. Alongside the state’s other evidence — including defendant’s anger at the victim for bringing Sisson to their apartment and the victim’s statement to defendant that he had been intimate with Sisson — a jury could infer that defendant spent his time contemplating whether to kill Sisson because he was angry about the end of their relationship and, further, that he would have been moved by that same anger to kill the victim due to his jealousy of the victim’s relationship with Sisson. Accordingly, the evidence helped to explain why defendant killed the victim, and, therefore, the trial court did not err in concluding that the evidence was relevant to defendant’s motive.
Defendant next argues that, even if the evidence was relevant, the trial court nevertheless erred in failing to provide a Leistiko instruction. The state responds that defendant’s argument is unpreserved. We agree with the state. In contrast to defendant’s first assignment, here, defendant did not argue below that the evidence was irrelevant
Dеfendant further contends that the trial court plainly erred in admitting the evidence without a Leistiko instruction. We easily reject that contention. To qualify as plain error, an error must satisfy three factors: (1) it must be one of law; (2) it must be apparent, meaning that “the point must be obvious” and “not reasonably in dispute”; and (3) it must appear on the record, meaning that “the reviewing court must not need to go outside the record to identify the error or choose between competing inferences, and the facts constituting the error must be irrefutable.” Ailes v. Portland Meadows, Inc.,
Defendant’s plain error challenge fails on the- second factor; any error in this case was not obvious for the reasons discussed earlier. The state’s theory of relevance for the porch evidеnce was not that the repetition of some act made it unlikely that defendant struck the victim with the baseball bat without a culpable mental state. Instead, it was that the evidence tended to show why defendant would have killed the victim. Thus, the “doctrine of chances” did not apply, and no limiting instruction would have been required under Leistiko. See Turnidge,
Finally, defendant argues that the trial court erred in failing to perform OEC 403 balancing with respect to the porch evidence. However, defendant did not preserve that argument for appeal. During Blair’s deposition, defendant objected to Blair’s testimony that defendant sat on his porch and disсussed whether to kill Sisson based, in part, on OEC 403. However, defendant did not request OEC 403 balancing before the trial court, either when the court considered the parties’ deposition objections during a pretrial hearing, or when the state played Blair’s videotaped deposition to the jury. Accordingly, because defendant did not seek a ruling from the trial court and the trial court did not make such a ruling, the issue is not preserved. Cf. State v. McMullin,
Defendant does not request that we review the trial court’s failure to perform OEC 403 balancing for plain error, and we therefore decline to undertake that analysis. Cf. State v. Ardizzone,
Affirmed.
Notes
Under OEC 404(3),
“[e]vidence 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 for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
OEC 404(4) provides:
“In criminal actions, evidence of other crimes, wrongs or acts by the defendant is admissible if relevant except as otherwise provided by:
“(a) ORS 40.180, 40.185, 40.190, 40.195, 40.200, 40.205, 40.210 and, to the extent required by the United States Constitution or the Oregon Constitution, ORS 40.160;
“(b) The rules of evidence relating to privilege and hearsay;
“(c) The Oregon Constitution; and
“(d) The United States Constitution.”
The Johns court set out a six-factor test to determine if evidence of prior acts is relevant to show that a defendant acted with a culpable mens rea under a “doctrine of chances” theory:
“(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 involved 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?”
OEC 403 provides that, “[ajlthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence.”
We review the trial court’s rulings on the relevance of evidence for errors of law. State v. Titus,
Although evidence of hostile motive is also relevant to prove “intent,” as the Turnidge court makes clear, there is a distinction between the meaning of intent in a hostile motive case and the meaning of the term in a doctrine of chances case. The doctrine of chances applies to evidence offered to prove “intent” in the sense of “the absence of accident, inadvertence or [causality].” Turnidge,
We note that the trial court concluded that the challenged evidence was relevant to defendant’s “intent” after applying the Johns test. The court in Moen also applied the Johns test before admitting the evidence of the defendant’s threat to his victims in that case. Moen,
The Mayfield court set out the following test:
“In making this decision under OEC 403, the judge should engage in four steps. First, the trial judge should assess the proponent’s need for the uncharged misconduct evidence. In other words, the judge should analyze the quantum of probative value of the evidence and consider the weight or strength of the evidence. In the second step the trial judge must determine how prejudicial the evidence is, to what extent the evidence may distract the jury from the central question whether the defendant committed the charged crime. The third step is the judicial process of balancing the prosecution’s need for the evidence against the countervailing prejudicial danger of unfair prejudice, and the fourth step is for the judge to make his or her ruling to admit all the proponent’s evidence, to exclude all the proponent’s evidence or to admit only part of the evidence.”
Even were we to understand defendant’s claim of error as an implicit request for plain error review, see State v. Zavala,