We agree with defendant that the trial court erred by admitting the notes. As explained below, the two notes were not admissible as noncharacter evidence of "motive," as that term is used in OEC 404(3). Rather, the logical relevance of the notes depends on a character-based inference, i.e. , that defendant has a propensity to commit acts of sexual violence against female strangers. On appeal, the state argues that, even so understood, the evidence was admissible propensity evidence under OEC 404(4) and State v. Williams ,
We review a trial court's determination that evidence is relevant for legal error,
On December 27, 2012, the victim, M, went for a run near her home. She wore a jacket and jogging pants, and she listened to music while she ran. As she was running down the sidewalk, defendant tackled her from behind, and she blacked out. She could feel defendant "dragging" her, and when she became fully alert, she was face down in a shallow ditch near the sidewalk. The ditch was next to an area with tall grass, brush, and trees. M was able to flip her body over, and she began to fight defendant, who stood over her and held one of her hands down. Using her other hand, M tried to hit defendant and then shoved two of her fingers into his mouth. At that point, defendant stood up and ran away. As a result of the attack, M suffered abrasions, cuts, and an injury to her shoulder.
Defendant was indicted on one count of first-degree kidnapping, ORS 163.235 ; one count of attempted first-degree sexual abuse, ORS 163.427 and ORS 161.405 ; and one count of fourth-degree assault, ORS 163.160. With respect to the attempted sexual-abuse count, the state alleged that defendant "did unlawfully and intentionally attempt to subject [M] to sexual contact by means of forcible compulsion."
M testified at trial that she could not identify her attacker. Defendant's theory of defense was that police had arrested the wrong person. Defendant also argued that, regardless of who attacked M, there was no evidence of any intent to subject M to sexual contact.
The state presented no direct evidence of actual or attempted sexual contact. The state's theory was that the victim had fought defendant off before he could make his sexual purpose unmistakable. As circumstantial evidence of defendant's intent during the assault, the state offered two notes that defendant had left on cars in two different Target
At defendant's trial, the state offered the notes to prove that defendant's motive in attacking M was to subject her to forcible sexual contact. The state made clear that it was offering the notes "solely" to prove defendant's "intent," explaining its need for the evidence as follows:
"The DNA evidence is very powerful and there's some corroboration that backs it up, so identity is going to be strong. But * * * defendant's intent in terms of sexually assaulting [M], although some may think it's obvious, there really isn't any hard evidence of that. * * * [M] fought [defendant] so ferociously and so courageously that [defendant] didn't have a chance to get his hand actually on her breasts or genitalia or buttocks in a way that would allow us to definitively by his actions determine that he-and he didn't-likewise, he didn't utter any words to her. He didn't say anything that would clearly allow me to argue that this was a sexual assault or an attempted sexual assault."
Defendant argued that the notes were irrelevant. See OEC 401 (defining relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence").
The trial court admitted the notes under OEC 404(3) for what it called the "noncharacter purpose" of explaining "what conscious purpose or what motive, if any, that [defendant] had in engaging in a kidnаpping and assault"-in other words, "to distinguish whether or not the goal was sexual assault or simply a physical assault." The court reasoned that there was a "great need for the evidence because there was no relationship between defendant and the victim," and there was "really no other way for [the jury] to understand in the context of these facts how or why the occurrence might have happened."
At the close of the state's evidence, defendant moved for a judgment of acquittal on the attempted sexual abuse charge. Defendant argued that, up until the court allowed the notes into evidence, the state had not "present[ed] one piece of circumstantial or direct evidence as to the intent of the person who committed this crime," and that there was "absolutely nothing in the record * * * to suggest that" the motive was sexual abuse. With regard to the notes in particular, defendant argued that the "fact that [defendant] is a heterosexual that likes sex cannot be used or even associated with trying to discern the motive [for the attack]."
The trial court denied defendant's motion. The court reasoned that a reasonable juror could conclude that defendant's purpose was to commit a sexual assault "because of the very particular circumstances in which the attack occurred," including the evidence that defendant had attempted to move M to a "place of secretion off the side of the road," and the lack of any evidence that M was wearing a
On appeal, defendant largely reprises the arguments that he made below.
We begin with defendant's first assignment of error, in which he challenges the trial court's admission of the notes for the noncharacter purpose of proving motive under OEC 404(3). Defendant contends that the notes are not probative of motive under OEC 404(3) because his mere expression of a desire for "rough anal sex" with the two recipients of the notes, without evidence of actual or attempted physical contact with those two women, "cannot reasonably support any permissible inference regarding defendant's specific intent during the later physical attack." The state, for its part, argues that the notes "gave rise to a reasonable inference that defendant was generally interested in having rough, nonconsensual sex with women he did not know" and that that inference "logically would make it more likely that he intended to have sexual contact with [M] (a female stranger) when he tackled her-an act that otherwise had no obvious purpose."
OEC 404(3) provides that "[e]vidence of other crimes, wrongs or acts" may be relevant for noncharacter "purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Evidence of uncharged misconduct is admissible for a noncharacter purpose when "the chain of logical relevance connecting the evidence to the 'other' fact or facts does not ultimately rely on an inference relating to the defendant's character or propensities." State v. Johnson ,
Our case law defines "character" as a person's "tendency to act in a certain way in all the varying situations of life." State v. Marshall ,
"Evidence is relevant to prove motive if it tends to show why the defendant committed the charged crime." State v. Edwards ,
Courts must be cautious in admitting evidence that is ostensibly for the purpose of showing "motive," but that may, in reality, depend for its relevance on an inference about the defendant's character. See Hampton ,
When the asserted connection between the charged offense and the other-acts evidence would be merely conjectural without resort to character-based inferences, such evidence is not admissible as noncharacter motive evidence. For example, in Garrett , the defendant was charged with murder, and the state sought to admit evidence that, 17 months after the murder, the defendant had assaulted a different woman as part of a plan to rob her of drugs that he believed she was keeping in her home.
As we explained in Wright , " Flett and Garrett demonstrate that the mere possibility that the same motive that caused the earlier crime or act also caused the charged crime is not enough to make evidence of the prior act relevant."
By contrast, when some aspect of the charged offense confirms that there is a logical connection between the other-acts evidence and the charged offense, and that connection does not depend on a character-based inference, the other-acts evidence may be admissible as noncharacter motive evidence.
According to the state, it is reasonable to infer from the notes that defendant "was generally interested in having rough, nonconsensual sex with women he did not know," and
We need not address whether the state's argument might be viable under other circumstances. The problem with the state's argument on the facts of this case is that the state offered the notes to prove that defendant was guilty of attempted sexual abuse. To prove that a defendant is guilty of an attempt crime, the state must prove that the person "intentionally engage[d] in conduct which constitutes a substantial step toward commission of the crime." ORS 161.405(1). In this case, the state was required to prove that defendant specifically intended to subject M to sexual contact by means of forcible compulsion and that he had taken a substantial step toward doing so. Thus, the state sought to admit the notes to prove not only that defendant thought in a particular way during the charged offense, but that he was going to act in a particular way. In other words, proof of the requisite mental state for attempted sexual abuse was inextricably bound up with рroof of the acts that defendant intended to and was willing to commit. Thus, regardless of whether the state's argument would have some persuasive force under other circumstances, it does not undermine our conclusion that the notes were not relevant as noncharacter evidence of defendant's motive for the attack.
As noted above, the state seems to acknowledge that its theory of relevance for the notes depends on a character-based inference-i.e. , that we can infer from the notes that defendant is a person with a peculiar sexual interest (a
The state's reliance on Williams is unavailing, however, because the state did not advance a character theory of relevance before the trial court, nor did the trial court admit the notes on that basis. Instead, the trial court made clear that it was admitting the notes for a "non-character" purpose. On appeal, the state does not appear to argue that its сharacter-based theory of relevance meets the requirements for application of the " 'right for the wrong reason' " principle. See Outdoor Media Dimensions Inc. v. State of Oregon ,
Finally, the state does not argue that any error by the trial court in admitting the evidence of the notes was
Although we conclude that the trial court committed reversible error by admitting the notes as noncharacter evidence of defendant's motive, we must next address defendant's second assignment of error, which challenges the trial court's denial of his MJOA. We must do so because, if defendant were to prevail on that assignment, he would be entitled to outright reversal of the judgment as to the attempted sexual abuse count. See State v. Schodrow ,
In order to sustain a conviction for attempted first-degree sexual abuse as charged in the indictment, the state was required to prove beyond a reasonable doubt that defendant "intentionally engage[d] in conduct which constitutes a substantial step toward" subjecting M to "sexual contact" by means of forcible compulsion. ORS 161.405 (attempt); ORS 163.427(1)(a)(B) (first-degree sexual abuse); see also ORS 163.305(6) (defining the phrase "sexual contact" is defined to mean "any touching of the sexual or other intimate parts of a person or causing such person to touch the sexual or other intimate parts of the actor for the purpose of arousing or gratifying the sexual desire of either party"). With regard to defendant's mental state, the state was required to prove that defendant "act[ed] with [the] conscious objective" to forcibly touch M's sexual or intimate parts (or force M to touch his sexual or intimate parts) for the purpose of sexual gratification. See ORS 161.085(7) ( " 'Intentionally' or 'with intent,' when used with respect to a result or to conduct described by a statute defining an offense, means that a person acts with a conscious objective to cause the result or to engage in the conduct so described."). Thus, we must decide, from the evidence and logical inferences drawn therefrom, whether any rational juror could conclude beyond a reasonable doubt that defendant possessed the requisite mental state.
In reviewing a trial court's denial of a defendant's motion for a judgment of acquittal, we consider both "the disputed and undisputed facts in the light most favorable to the state, as well as inferences of innocenсe that flow from the undisputed evidence."
In determining whether a rational factfinder could find beyond a reasonable doubt that dеfendant intended to inflict a sexual assault on M, our decision in State v. O'Hara ,
On appeаl, the defendant argued that the evidence was not sufficient to prove that he intended to forcibly subject
"The facts in this case would support jury findings that defendant had been lying in wait, in a location where only women would be, had tried to knock out or otherwise disable the victim, had tried to trap her in a bathroom stall and had threatened her to submit to him or face negative consequences ('you'd better'). Also, defendant had not waited for a victim who was carrying a purse and had not fled when this victim fought back. The jury could infer from those facts that defendant intended to commit a crime against the victim's person, as opposed to her property. The jury also could have inferred from defendant's verbalizations and actions-especially his аttempts to force the victim to the floor-that defendant's goal was not simply to assault the victim, i.e. , the jury could infer that he intended to commit a [sexual assault]."
In this case, the most pertinent evidence bearing on defendant's mental state includes the following: (1) M was wearing running clothing, and she was not wearing a watch or jewelry or other visible items of obvious value; (2) defendant tackled M with enough force to cause her to lose consciousness; (3) defendant dragged M from the sidewalk into a shallow ditch toward a brushy
From that evidence, a rational juror could find beyond a reasonable doubt that defendant intended to subject M to sexual contact when he attacked her. From the fact that defendant tackled M with such a degree of force that she blacked out, a jury could infer that defendant intended to incapacitate her. From the fact that he dragged her from the sidewalk into a shallow ditch and toward a brushy area, a jury could logically infer that defendant intended to move M, who was incapacitated, to a location where he was less likely to be viewed by passersby. From that inference, a jury could further infer that defendant did so because he wanted more
Reversed and remanded.
Notes
Defendant argued that, in order to determine whether the notes were relevant, the trial court must apply the six-steр analysis set forth in State v. Johns ,
From the evidence that M was listening to music while she ran, we infer that she was carrying some device for that purpose, although the record otherwise permits no inference about whether that device was visible to others.
The cases cited by the state are meaningfully distinguishable. In State v. Wilhelm ,
In a memorandum of additional authorities, the state also asserts that our decision in Clarke "held that other-act evidence was properly admitted under OEC 404(4) to prove the defendant's mental state." In that case, we held that the trial court did not err in admitting other-acts evidence to prove defendant's motive-a traditional, noncharacter purpose for admitting other-acts evidence. See
As noted above, when considering the denial of a defеndant's motion for a judgment of acquittal, we generally consider the rational inferences that flow from all of the evidence admitted, including evidence that was improperly admitted. See State v. Verdine ,
Our disposition as to defendant's first assignment of error obviates the need for us to address defendant's third assignment of error, which is a challenge to the lawfulness of his sentence.