STATE OF OREGON, Petitioner on Review, v. BRETT NICHOLAS MAZZIOTTI, Respondent on Review.
CC 201218698; CA A153713; SC S064085
IN THE SUPREME COURT OF THE STATE OF OREGON
April 27, 2017
361 Or 370
No. 22. Argued and submitted November 14,
On appeal from the Court of Appeals.*
Doug M. Petrina, Assistant Attorney General, Salem, argued the cause and filed the brief for petitioner on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Kristin A. Carveth, Deputy Public Defender, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ernest G. Lannet, Chief Defender, Office of Public Defense Services and Mary M. Reese, Deputy Public Defender.
Before Balmer, Chief Justice, and Kistler, Walters, Landau, Brewer, and Nakamoto, Justices, and Baldwin, Senior Justice, Justice pro tempore.**
WALTERS, J.
The decision of the Court of Appeals is affirmed. The judgment of the trial court is reversed, and the case is remanded to the trial court for further proceedings, consistently with this opinion.
Case Summary: Today, the Oregon Supreme Court, following State v. Baughman, 361 Or 386, 399 P3d 114 (2017), explained that the legislature intended that trial courts, in determining whether to admit evidence under
The Court affirmed the decision of the Court of Appeals, reversed the judgment of the circuit court, and remanded the case to the trial court for a determination of the relevant purposes of other acts evidence that the state proffers under
WALTERS, J.
In this case, a prosecution for failure to perform the duties of a driver, reckless endangerment, and reckless driving, the trial court admitted other acts evidence over defendant‘s objection and, the state concedes, without conducting
Defendant was charged with crimes arising from a 2012 traffic accident that occurred after defendant, who was driving a motorcycle, had been speeding. When a car turned in front of defendant, he was unable to avoid a collision, and his passenger was thrown from the motorcycle and sustained injuries. After the accident, defendant moved his passenger to the side of the road, moved the motorcycle from the roadway, and then accepted a ride from the scene from a passerby. Ultimately, defendant was charged with failure to perform the duties of a driver, reckless endangerment, and reckless driving.
Before trial, the state moved to admit evidence of two prior police encounters that defendant had had with police officers and the criminal convictions that resulted from those encounters. The first encounter had resulted in convictions for reckless driving and attempting to elude. A police officer testified that, when defendant failed to stop at a stop sign, the officer had initiated a traffic stop and defendant had driven away with the police in pursuit. Defendant had increased his speed to roughly 55 miles per hour, led the police into a residential neighborhood, and made two immediate turns at a high rate of speed. During the second encounter, defendant had driven through a stop sign at a high rate of speed and lost control of his vehicle, nearly hitting a police vehicle. Defendant again was convicted of reckless driving.
Before the trial court, the state argued that that other acts evidence was relevant for nonpropensity purposes, viz., to prove “motive and knowledge” and to show defendant‘s “criminal intent and in this case the awareness and disregard, and the recklessness.” Defendant argued that the evidence should be excluded because it was not
On appeal to the Court of Appeals, defendant assigned error to the trial court‘s admission of the other acts evidence. Id. at 777. Defendant initially challenged the admission of that evidence as improper character evidence under
The state sought, and we granted, review. The state argues that we should reverse the decision of the Court of Appeals and affirm the judgment of the trial court because the trial court was not required to conduct “traditional”
Our decision today in State v. Baughman, 361 Or 386, 399 P3d 114 (2017), answers the state‘s first argument. In Baughman, we held that, in a criminal case, when a defendant objects to other acts evidence that is relevant only to prove the defendant‘s character under
In this case, the state proffered evidence of defendant‘s previous police encounters and driving-related convictions for a nonpropensity purpose, that is, to establish an element of two of the charged crimes—reckless endangerment and reckless driving. The state argued that the challenged evidence tended to prove that defendant had a subjective awareness of the risks of driving at excessive speeds and in an unsafe manner but chose to disregard those risks, establishing that defendant drove with a reckless state of mind. Defendant countered that he had done everything that he could to avoid the accident and that he had left the scene only to get immediate medical help. Defendant objected to the proffered evidence as
The trial court did not expressly determine the purposes for which it considered the evidence, and it did not conduct
The state does not contend that that error was harmless; it acknowledges that the record does not demonstrate “that the admission of the other acts evidence did not contribute to the verdict.” Instead, the state argues, as it did in Baughman, that we should not remand this case for retrial; we should remand to allow the trial court to correct its “procedural error,” by conducting
The distinction that defendant makes between evidence offered to prove a defendant‘s propensity to commit sexual abuse and evidence offered to prove other criminal acts is an important one. However, in this case, the evidence that defendant challenges is not offered solely to prove defendant‘s propensity to commit the charged acts. The evidence that defendant had, on two prior occasions, driven at high rates of speed under dangerous circumstances was evidence of defendant‘s subjective awareness of the risks that such conduct posed and was relevant to an element of two of the charged crimes. Defendant may be correct that some of the other acts evidence proffered by the state—for instance, his conviction for attempting to elude—was relevant only to his character. However, the fact that other evidence proffered by the state undoubtedly was relevant for a nonpropensity purpose means that the evidence as a whole cannot be considered solely character evidence subject to categorical exclusion. Consequently, we need not decide, at this juncture, whether evidence admitted in a criminal case, other than a prosecution for child sexual abuse, solely to prove a defendant‘s propensity to commit the charged acts, necessarily would violate due process.
Turning back to the state‘s contention that a limited remand is the appropriate remedy in this case, we again find our response in Baughman determinative. 361 Or at 410-11. As we did there, we leave the decision about the appropriate proceedings on remand to the trial court. We recognize that, on remand, the trial court may exclude at least some of the other acts evidence that it previously admitted and that, as a consequence, retrial may be necessary. See id. at 403 (noting that other acts evidence that goes only to character generally will have little or no cognizable probative value and will present increased danger of unfair prejudice and significant due process concerns). However, that decision and others are for the trial court in the first instance. Consistently with Baughman, we remand to the trial court for a determination of the relevant purposes of other acts evidence that the state proffers under
The decision of the Court of Appeals is affirmed. The judgment of the trial court is reversed, and the case is remanded to the