Lead Opinion
A jury found that defendant, a high school teacher, rubbed his arm against the breasts of one of his students without her consent and for the purpose of gratifying his sexual desire. The trial court entered a judgment of conviction for sexual abuse in the third degree. ORS 163.415.
Factual details will emerge in our discussion of defendant’s assignments of error. In brief: The victim, K, was a student and teacher’s aide in defendant’s high school history class. In April 2005, she reported to a school guidance counselor that, when she went to defendant’s class after missing a day of school, he “put his left arm across my breasts and grabbed my right shoulder and jokingly said, ‘Never miss my class again.’ ” K reported that defendant had previously
Defendant’s primary theory at trial was that the incident did not occur. On cross-examination of K, he attempted to show that another student, D, had teased K by saying that defendant flirted with her, and that the teasing might have led her to make a false accusation. Defendant also introduced evidence that the police report of the incident, based on K’s statements, specified that it had occurred in the hallway rather than the classroom. Both the defense and the prosecution called students from defendant’s class to testify as to whether they had seen defendant touch K. Several students testified that they never saw such conduct; others testified that they did. The jury, as noted, ultimately returned a verdict finding defendant guilty of sexual abuse in the third degree.
I. ADMISSION OF EVIDENCE OF UNCHARGED CONDUCT
We begin with defendant’s third assignment of error, because it is dispositive. Before trial, the state filed a motion to admit evidence that defendant had exhibited inappropriate behavior toward female students in the past. Defendant argued that the incidents were uncharged misconduct and were not relevant to any fact in issue; his defense in this case was not that the inappropriate behavior was accidental or that he had touched K without any sexual intent, but that no touching occurred. See State v. Baughman,
Throughout the trial, defendant attempted to create doubt about whether he had touched the victim’s breasts. During his closing argument, however, defense counsel implied that even if the touching had occurred, it was an “innocent event [ ]” and that the victim may have interpreted it as sexual because teenagers think about “sexual kind of things a lot.” In response, the court allowed the state to reopen its case and present testimony from three female former students who alleged that defendant had inappropriately touched them as well.
In his third assignment of error, defendant argues that the trial court erred by allowing the three students to testify about the earlier uncharged incidents. According to defendant, admitting the evidence ran afoul of the prohibition in OEC 404(3):
“Evidence of other crimes, wrongs or acts is not admissible as evidence 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.”
The state responds that the evidence was admissible to prove that, contrary to the assertion in his closing argument, defendant acted with the requisite intention, that is, when he touched K’s breasts, he did so “for the purpose of arousing or gratifying the sexual desire of either party.” ORS 163.305(6).
In State v. Johns,
“(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?”
Id. at 555-56. The inquiry is cumulative: if the answer to any of the first five inquiries is negative, then the evidence is not relevant and the court need not proceed to the balancing in the sixth inquiry, presumably because irrelevant evidence is of no probative value. State v. Pratt,
The disputed testimony described several incidents. One of the witnesses, L, testified that defendant was her basketball coach when she was in high school in the 1980s. She described an incident when defendant hugged her, picked her up, and spun her around while singing, “I’ve been waiting for a girl like you.” On different occasions, while she was stretching in the gym, he whispered, “I like the way you smell this time of the month,” and, while she was doing hamstring curls, he told her, “I like the way your hips move when you do that.” Another student, H, testified that defendant had placed his hands on her shoulders and rubbed them while she was in his class. She explained that the incident occurred when she was upset due to an unrelated incident, and he was trying to comfort her. The last student to testify, M, said that defendant had placed his hand on her lower back to escort her out of the classroom and into the hallway.
We conclude that the three incidents involving physical contact are irrelevant under the second Johns inquiry, “Did the prior act require intent?”
However, for the same reason that the testimony should not have been admitted, admitting it does not require reversal. Evidentiary error is not presumed to be prejudicial, OEC 103(1), and reversal is required only if the error “substantially affect[ed] the rights of a party.” ORS 19.415(2). “Perhaps the best approximation of our inquiry is that we view evidentiary error as reversible error * * * when, based on our assessment of the whole record, we believe that there was a substantial possibility that the error affected the result of the trial.” Brown v. Boise-Cascade Corp.,
The remaining incidents of uncharged misconduct— defendant’s inappropriate and offensive remarks to L — are also irrelevant to the question of intent. Although they do, at least arguably, show sexual motivation, they are not sufficiently similar to the charged misconduct to pass the fourth and fifth Johns inquiry: the acts are not of a “type” that is similar to the “type” of act charged, and they do not have similar “physical elements.”
Although similarity between uncharged and charged misconduct must be gauged on a case-by-case basis, Pratt,
“1) Both victims were transported from Washington into Oregon
“2) Both victims were sexually assaulted; and,
“3) During the course of each crime someone was bound and gagged with duct tape and paper towels.”
Id. at 213. Nonetheless, the court concluded that the two crimes were dissimilar for purposes of a Johns analysis:
“A comparison of the two crimes in this case demonstrates that the similarities between the physical elements of the two crimes do not outweigh the differences: [In the earlier crime,] Lewis was publicly abducted at gunpoint by defendant, who had an accomplice. [In the charged crime,] Love’s murder involved no abduction, no gun, and no accomplice. Lewis was raped at a motel during a significant interruption of a trip. Love, if she was raped at all, was raped in a truck or by the side of a road. Lewis was raped, but not otherwise seriously injured. Love was brutally stabbed, asphyxiated, and run over. Even one of the similarities is questionable. In the Lewis abduction the witnesses were bound and gagged, not the victim herself as in the Love murder. Aside from its tendency to show that defendant is the sort of man who commits rape, the Lewis abduction and rape is not probative of defendant’s intent to rape Carrie Love.”
Id. at 214 (footnote omitted).
Pratt, then — the first Supreme Court case to apply the Johns analysis — establishes a stringent test for similarity. A review of subsequent cases involving the issue in this case, that is, whether uncharged misconduct evincing an intent to gratify sexual desire is relevant to prove sexual intent in the charged misconduct, confirms this stringency.
We also conclude that admitting them was prejudicial, that is, that there is a substantial possibility — not probability — that it affected the outcome of the trial. Brown,
II. DENIAL OF DEFENDANT’S MOTION FOR A NEW TRIAL
Defendant’s first two assignments of error involve assertions that he was wrongly denied information that would have allowed him to undermine K’s credibility by presenting evidence to the jury that, in 2002, she had made a false allegation of rape. In the interest of judicial efficiency, we address those aspects of the assignments of error that are likely to arise on remand.
In his first assignment, defendant argues that the trial court should have allowed his motion for a new trial because, under Brady v. Maryland,
The factual background relevant to this assignment of error is as follows. Before the trial began, a defense investigator interviewed many of K’s classmates. Some of them told the investigator that they did not believe that K was a truthful person and that she had once made a false accusation of sexual assault against a former classmate. The students reported that a Marion County Deputy Sheriff named “Matt” had interviewed them regarding the 2002 allegation. Based on that information, defense counsel sent a letter to the district attorney’s office requesting any information about the 2002 incident. The district attorney responded with a letter stating, “I have checked with both OASIS and the Marion County Sheriffs Office records division for these reports. I was unable to locate any such reports by [K] involving a previous sexual assault or rape allegation.”
Defense counsel also subpoenaed medical records from the local hospital where, he believed, K had received treatment after the alleged rape. He requested that the trial court inspect the documents in camera and provide him with any evidence relating to an emergency room visit by K “in approximately August of2003.” The trial court conducted
Thus, defense counsel discovered no evidence to corroborate the reports that K had made a false allegation of rape. As a result, defense counsel did not call the students who accused K of being untrustworthy, nor did he cross-examine K about such an incident. Instead, he presented the defense theory described above — that, because of influence from another student, K made a false allegation against defendant.
After the verdict, but before sentencing, the defense learned that, in 2002, the sheriffs office had, in fact, investigated a claim by K that she had been sexually assaulted by another student. The Marion County District Attorney’s office had reviewed the case and, not finding sufficient evidence to go forward, declined to prosecute the student. According to the information gathered by the sheriffs office, K and the alleged rapist, S, both attended a party in August 2002, during which K and he went to his car. K later stated that, while in the car, S raped her. S disputed that account, claiming that he and K attempted to have consensual intercourse, but that he stopped because she objected that it hurt her. In any event, after the encounter, K was bleeding severely.
When the trial court learned of the 2002 investigation, it reviewed the information from the hospital for that year; the original review, following defense counsel’s instruction, had focused on 2003. The 2002 hospital records revealed that, on the evening of the alleged sexual assault, K was taken to the emergency room, where she received multiple stitches to repair a vaginal tear. The contents of the medical records are not in the appellate record, but the evidence that is in the record indicates that several of the hospital employees were required under ORS 419B.005(3)(a) and ORS 419B.010 to report sexual abuse of minors, and none of them reported that K had been raped. Additionally, K told her mother that she had had sexual intercourse — not that she had been raped. Testimony by K’s friends was mixed; some supported the rape theory and others suggested that she had engaged in consensual sex.
Based on the newly discovered information, defendant moved for a new trial. He contended that, because the evidence of the prior allegation was not disclosed to him, he had to change his trial strategy; with evidence to corroborate the statements of the students who believed that K was not a truthful person, he would have called them as witnesses and elicited testimony to that effect. Further, defendant argued that he would have cross-examined K about the prior allegation of sexual assault. Defendant also argued that, if he had had the information that had been gathered by the sheriffs office, he would have requested in camera inspection of the hospital records for 2002, the correct date, and would have obtained the medical records from K’s emergency room visit the night of the party, and those records would have confirmed that K had made a false allegation.
Defendant reprises those arguments on appeal, contending that the prosecution’s failure to disclose its investigation of K’s 2002 allegation, along with the consequent failure to obtain the correct hospital records, impaired his ability to impeach the state’s most important witness, thereby depriving him of due process and entitling him to a new trial. The state responds that, under the governing rules of evidence, defendant would not have been allowed to use the allegedly exculpatory evidence for either purpose, so failing to disclose it to him in a timely manner caused no prejudice.
We review the trial court’s denial of defendant’s motion for a new trial for abuse of discretion. State v. Smith,
The legal standards underlying our inquiry are well-settled, and many of the facts are undisputed. In Brady,
As the state correctly notes, suppressed evidence that would not have been admissible at trial is, in most instances and for that reason, immaterial — its existence could not have had any effect on the outcome. Therefore, the prosecution’s failure to produce such evidence is, again in most instances, harmless, and the court’s subsequent denial of a motion for a new trial based on an alleged Brady violation regarding such evidence is not error. See Wood v. Bartholomew,
“Specific instances of the conduct of a witness, for the purpose of attacking or supporting the credibility of the witness * * * may not be proved by extrinsic evidence. Further, such specific instances of conduct may not, even if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness.”
Thus, the state argues, because all of the suppressed evidence was inadmissible, it could not have altered the outcome in defendant’s favor, and the trial court therefore did not err in denying defendant’s motion for a new trial.
Defendant advances two arguments against the state’s reasoning. First, he maintains that, under State v. LeClair,
We begin with defendant’s argument that, under LeClair, the court was required to permit him to cross-examine K about her prior allegation. In LeClair, we held that,
“regardless of the prohibitions of OEC 608, the Confrontation Clause of Article I, section 11, requires that the court permit a defendant to cross-examine the complaining witness in front of the jury concerning other accusations she has made if 1) she has recanted them; 2) the defendant demonstrates to the court that those accusations were false; or 3) there is some evidence that the victim has made prior accusations that were false, unless the probative value of the evidence which the defendant seeks to elicit on the cross-examination (including the probability that false accusations were in fact made) is substantially outweighed by the risk of prejudice, confusion, embarrassment or delay.”
“I don’t find that the allegation that [S] raped [the victim] is demonstrably false. There is, at best, some evidence in either direction, which might explain why the state decided they couldn’t prove it beyond a reasonable doubt. But there’s certainly some evidence that is supportive of that allegation, and it’s just not, in my view, demonstrably false.”
We review the trial court’s conclusion under the second LeClair category for any evidence. Arellano,
Defendant also argues that, even if facts here do not put the case in the second LeClair category, they qualify it for the third (that is, there is “some evidence” that K made a prior false allegation); he could therefore have cross-examined her about that incident because “the probative value of the evidence which the defendant seeks to elicit on the cross-examination (including the probability that false accusations were in fact made)” is not “substantially outweighed by the risk of prejudice, confusion, embarrassment or delay.” LeClair,
We review the court’s conclusion under the third LeClair category for abuse of discretion. Arellano,
“[0]n the one hand you have, at best, some evidence that maybe a false allegation was made in some context in which there’s no evidence that [the victim] really gets any benefit from making this allegation. And on the other hand, you have a whole side trial into a separate incident where you’re probably never going to have any conclusive evidence one way or another, and where you’re going to significantly delay the proceedings and cause [the victim] to go through just a mortifying experience.”
Although we might reach a different conclusion, we cannot say that the court abused its
Defendant’s second argument in support of his contention that withholding evidence of a prior false allegation caused prejudice is based, as noted above, on the theory that, had defendant known about the allegation, he would have had more confidence in certain witnesses’ potential testimony as to K’s reputation for truthfulness, and would have adduced that testimony at trial instead of deciding not to do so. In making this argument, defendant acknowledges that he could not have examined those witnesses about the false allegation itself; that line of questioning would have been inadmissible under OEC 608(2), and, because it did not involve cross-examination of an adverse witness, the LeClair exception would not apply.
In light of our standard of review — did the trial court abuse its discretion in rejecting defendant’s argument that examining three character witnesses would, to a reasonable probability, have changed the outcome of the trial? — we conclude that the court did not err. Defendant’s theory rests on at least two assertions: First, if he had known the facts about the allegation contained in the prosecution and hospital records, he would have made a tactical decision to put K’s character for truthfulness in question; and second, the taint on her character for truthfulness that he could have created by virtue of the three witnesses’ testimony would probably have been sufficient to change the outcome of the trial. We find that defendant’s argument depends on highly speculative propositions, and, for that reason, we cannot conclude that the trial court abused its discretion in rejecting it.
In sum: The prosecution did not produce evidence that would have indicated that, in 2002, the state investigated a report by K that she had been raped. The evidence would have disclosed that the district attorney decided against prosecuting the alleged rapist. The withheld evidence also would have led to the discovery of hospital records disclosing that, the night of the alleged rape, K was treated at a local hospital for a vaginal tear, and that none of the medical personnel who were involved reported a rape, which they were required to do if they believed one had occurred. Nonetheless, we conclude that the evidence would not have been admissible for use in cross-examining K, nor in impeaching her credibility. At most, the defense could have used the evidence in calculating whether to adduce evidence from other witnesses as to K’s general reputation for truthfulness. The trial court concluded that, used in that manner, the evidence did not create a reasonable probability that the result of the trial would have been different. That conclusion was not an abuse of discretion. We therefore reject defendant’s first and second assignments of error.
Reversed and remanded.
APPENDIX
JOHNS CASES INVOLVING THE ADMISSIBILITY OF UNCHARGED, ALLEGEDLY SEXUAL ACTS
We have deemed the evidence admissible in the following cases:
State v. Wert,
“The sexual-abuse charge required proof that defendant intended sexual arousal or gratification when he touched the victim, and the incident involving [her friend] also required intent of sexual gratification; both the victim and Ella were in the same class of victims, i.e., neighbor children interested in defendant’s airplane; the incidents of physical abuse were similar in where and how they occurred and in defendant’s fondling the lower bodies of the girls.”
Id. at 584-85.
State v. Stafford,
State v. Cockrell,
“Each touching occurred while the victims were involved in nonsexual activities. The surrounding physical circumstances of the incidents are also similar. There were no alcohol, drugs, violence, coercion or the use of weapons involved in any of the incidents. The types of touching involved are similar — in each case, defendant used his handto touch the sexual or intimate parts of the victims. Finally, there is the similarity in each of defendant’s responses after being confronted about his conduct.”
Id. at 449.
We have deemed evidence inadmissible in the following cases:
State v. Rinkin,
“Each of defendant’s conversations with ‘A’ occurred in public, in the presence of other people. During those contacts, defendant talked to ‘A’ about ‘skipping’ school and ‘doing things that his parents would not let him do.’ On one occasion, when defendant learned that ‘A’ was interested in karate, he offered ‘A’ free lessons in his apartment, telling A’ that he was welcome to come any time, so long as he came alone. On another occasion, defendant asked A’ whether he had ever seen a Playboy magazine. When A’ replied, ‘No,’ defendant offered him a Playboy if he would come to defendant’s apartment.”
Id. at 357. The evidence of prior uncharged conduct that the state argued was sufficiently similar was a series of letters that the defendant wrote to another boy, confessing a sexual encounter that was initiated after the defendant promised to show that boy a Playboy magazine. We held that the acts were not sufficiently similar. Id. at 369-70.
State v. Sheets,
State v. Dibala,
“the physical elements of the two incidents are not so similar as to outweigh their differences. In the 1986 incident, defendant did not place the children on his lap nor did he rub an erection against them. The 1986 incidents took place in bedrooms; the current incident, in a truck. In the 1986 incident, defendant touched the victims’ clothed genitals with his hands; in 1996, he is alleged to have touched the boys’ clothed buttocks with a clothed erection and his pelvis. There was no evidence whether or not the defendant had an erection during the 1986 incidents.”
Id. at 106.
State v. Irons,
“Here, at the least, evidence of defendant’s prior statements to [the complainant] did not meet Johns’s fourth (similarity of type of act) and fifth (similarity of physical elements) requirements. Asking a 10-year-old girl questions about her sexual development in the presence of her mother or friends is not the same or similar type of act as the intimate physical contact, constituting sexual abuse in the first degree, that is charged here. Moreover, although defendant allegedly commented on [the complainant’s] sexual development while engaging in the charged crimes, the differences in ‘physical elements’ are manifest: The prior incidents involved comments and questions to [her], without any physical touching, in the presence of others.”
Id. at 535.
State v. Bunting,
Notes
ORS 163.415 provides:
“(1) A person commits the crime of sexual abuse in the third degree if the person subjects another person to sexual contact and:
“(a) The victim does not consent to the sexual contact; or “(b) The victim is incapable of consent by reason of being under 18 years of age.”
“Sexual contact” is defined as “any touching of the sexual or other intimate parts of a person * * * for the purpose of arousing or gratifying the sexual desire of either party.” ORS 163.305(6).
The cases, along with brief summaries, are collected in the Appendix to this opinion,
Defendant’s argument relies on the Due Process Clause of the Fourteenth Amendment to the United States Constitution as applied in Brady,
Our disposition of defendant’s first three assignments of error obviates the need to address his assignment of error to the trial court’s denial of his motion for a mistrial, based on the last sentences of the prosecutor’s closing argument: “I’m asking you to vindicate [K]. I’m asking you to hold the defendant accountable. Thank you very much.” We presume that, because the state has an interest in avoiding potentially reversible error, the issue will not arise on remand.
Concurrence Opinion
concurring.
I agree with the majority that two of defendant’s comments to L — “I like the way you smell this time of month” and “I like the way your hips move when you do that” — were too dissimilar to the charged incident to be admissible as evidence of defendant’s intent when he engaged in the charged act. No coiinterpart to those overtly inappropriate comments about a student’s body was present in the charged incident. Accordingly, those comments were not admissible. Because the error in admitting those comments was prejudicial, I agree that we must reverse and remand.
I disagree, however, with the majority’s analysis of the evidence concerning defendant’s touching L, H, and M and defendant’s statements that directly related to those incidents. I would hold that that evidence was admissible because a jury could infer from that pattern of similar conduct that defendant engaged in the conduct at issue with the intent to gratify his sexual desires.
The evidence here was offered to show that defendant’s intent in touching the victim was not innocuous, as he asserted. As the Supreme Court has observed, “[i]ntent or state of mind is often the most difficult element of a crime to prove because many crimes are unwitnessed and even if a witness is present, the witness can only surmise the actor’s state of mind.” State v. Johns,
The evidence at issue was part of a pattern of conduct in which defendant touched female students in a way that pushed the boundaries of acceptable physical contact between a teacher and a student and that made the
The doctrine of chances involves an inductive reasoning process based on probability; each time that a possibly accidental event is repeated, it becomes more likely that the defendant acted with intent. Johns,
The Johns court emphasized the particularized nature of the inquiry regarding admissibility:
“These decisions must be made case-by-case * * *. The more prior similar acts, the stronger the probative value; the fewer, the less the probative value. The same is true of the similarity of the prior acts and of the time element. The prior acts need not be identical. The greater the degree of similarity of the prior acts, the greater the relevancy; the less similarity, the less probative value. As to the time element, the closer in time of the prior act to the act charged, the greater the probative value; the more remote, the less probative value. No categorical rule controls inclusion or exclusion.”
Following its discussion of the doctrine of chances and the fact-specific nature of the inquiry, the Johns court stated:
“To sum up, in evaluating prior crime evidence on the issue of intent or absence of mistake, the trial judge should make these determinations:
“(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?”
Id. at 555-56. In comparing the physical elements of the prior acts and the charged act, both the similarities and the dissimilarities must be fully considered. State v. Pratt,
With those principles in mind, I would conclude that the evidence concerning defendant’s hugging and singing to L, rubbing H’s shoulders and talking with her about that incident, and touching M’s lower back are admissible. The evidence satisfies the five pertinent factors in the Johns test.
First, there is no dispute that the charged act required intent. Second, the prior acts of touching and related comments were intentional, not accidental.
Third, the victim in this case, one of defendant’s female students, was in the same “class” (meaning category or type) as the girls whom defendant touched in the prior acts, who also were students in defendant’s classes or on a school team coached by defendant.
Fourth, the types of acts are similar. The physical contacts (hugging L, rubbing H’s shoulders, and touching M’s lower back) are similar to the charged act in which defendant touched the victim’s breasts. Each incident involved a touching, with defendant’s hand or arm, of a student in a way that could be viewed as innocuous but that pushed the boundaries of appropriate touching. During or as a direct consequence of most of those acts of touching, defendant made comments to the students that made light of the incidents. As he hugged L, he sang a song to her. After he rubbed H’s shoulders and she complained to a counselor, defendant asked her if she was uncomfortable, stated that he had been trying to cheer her up, and suggested that she “fix” any rumors about him. When he touched the victim, he jokingly said to her, “You better never miss my class again.” In each case, the nature of the comments and the connection to the touching are similar.
Fifth, the physical elements of the prior acts of touching and the present act were similar. Each act occurred at school, during school hours or scheduled school activities. Each involved defendant’s use of his hand or arm to touch a clothed female student on the upper portion of her body.
The evidence thus satisfies the Johns test. Returning to the big picture, then, the key question is this: Does the evidence that defendant touched L, H, and M make it more likely that, when he touched the victim, he did so with sexual intent? Without reference to defendant’s character, the jury could find from the evidence that defendant engaged in a pattern of touching female students in a way that made the students uncomfortable and that defendant, by calibrating the offensiveness of the touching and making minimizing
Of course, a reasonable jury might decline to draw the suggested inference, deciding instead that defendant had no sexual intent in any of the incidents. The fact that the evidence might be interpreted more than one way, however, generally does not preclude its admissibility. See State v. Hampton,
The sixth Johns factor is not pertinent here, because of OEC 404(4), which 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.”
In Johns, the court was addressing the admissibility of “prior crime evidence”- — -that is, the prior act at issue there was an incident that resulted in the defendant’s conviction of “common assault.”