STATE OF OREGON, Respondent on Review, v. DOUGLAS LEROY PITT, Petitioner on Review.
CC 011381; CA A137399; SC S058996
Supreme Court of Oregon
October 18, 2012
293 P.3d 1002 | 352 Or. 566
Argued and submitted May 4, 2011, decision of Court of Appeals reversed; judgment of circuit court reversed, and case remanded to circuit court for further proceedings October 18, 2012
Mary H. Williams, Solicitor General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were John R. Kroger, Attorney General, and Shannon T. Reel, Assistant Attorney General.
DURHAM, J.
** Landau, J., did not participate in the consideration or decision of this case.
A jury convicted defendant of two counts of first-degree unlawful sexual penetration,
Defendant was charged in Clatsop County Circuit Court with sexually abusing A, the four-year-old daughter of defendant‘s girlfriend, Snider. In the summer of 2001, defendant moved into a Lane County residence with Snider and A. Snider‘s sister, Finney, and Finney‘s four-year-old daughter, R, also lived at that residence. In September, defendant, Snider, and A moved to Clatsop County. Shortly after the move, Snider noticed a change in A‘s behavior. A began having nightmares, wetting the bed, and resisting being left alone. In December, A pointed to her genital area and told Snider that defendant “touches me there.” A referred to defendant as “Doug.” Snider then took A to the police station, where officers arranged to have A evaluated at the Lighthouse, a child abuse assessment center.
At the Lighthouse, Dr. Stefanelli conducted an interview and physical examination of A. During the examination, A disclosed that defendant had touched her genital area more than once. Stefanelli also found physical evidence consistent with sexual abuse. Based on a June 1999 medical examination of A that showed no physical
The Lighthouse staff subsequently referred A to Dr. Berdine, a clinical psychologist, for further evaluation. When Berdine met with A a few days later, A stated that defendant had touched her genital area when she lived in Clatsop County. A also disclosed that defendant had touched her genital area when she lived in Lane County, and that she had seen defendant touch R‘s genitals there too.
A and R were later interviewed at the Lane County Child Advocacy Center by the center‘s director, Broderick. Both interviews were conducted separately and were videotaped. During Broderick‘s interview with A, A stated that defendant had touched her genital area and that she had observed defendant touch R in a similar manner. When R was interviewed, she too disclosed that defendant had touched her genital area, and that she had observed defendant touch A as well.
Defendant was charged by indictment with two counts of first-degree unlawful sexual penetration and two counts of first-degree sexual abuse, based on conduct involving A that occurred in Clatsop County. Defendant‘s case was initially tried in 2002 and defendant was convicted of all charges. Defendant appealed his convictions, and the Court of Appeals reversed and remanded the matter for retrial. See State v. Pitt, 209 Or App 270, 147 P3d 940 (2006), adh‘d, to on recons, 212 Or App 523, 159 P3d 329 (2007) (reversal based on a violation of defendant‘s constitutional right to confront witnesses against him). This case concerns the proceedings on retrial.
On remand and before trial, defendant moved to exclude all evidence of prior uncharged misconduct involving A and R that took place in Lane County. At a hearing on defendant‘s motion, defendant contended that that evidence was inadmissible character evidence under
In a letter opinion denying defendant‘s motion, the trial court applied the analysis set out in State v. Johns, 301 Or 535, 725 P2d 312 (1986).3 Under that analysis, the court found that: (1) the charges required the state to prove that defendant had acted with intent; (2) the Lane County incidents would have required intent as well; (3) A was the same victim and R was in the same class of victims; (4) defendant faced similar charges in Lane County for his conduct there; (5) the physical elements of the conduct were the same or very similar; and (6) the evidence was probative of defendant‘s knowledge but could confuse the jury. Examining those factors in whole, the trial court determined that the evidence was relevant “in determining one of the necessary elements of each count, the mental state.” The trial court further reasoned that, because defendant had indicated during the hearing on his motion that he may
In accordance with that ruling, the state offered evidence at trial relating to defendant‘s charged conduct as well as his prior uncharged conduct. In particular, A testified that defendant had touched her genital area in Clatsop County (charged conduct) and that defendant had touched her and R in Lane County (uncharged conduct). R also testified that she thought, but was not certain, that defendant had touched her genital area in Lane County (uncharged conduct). Stefanelli further testified about the physical evidence that she had discovered in her examination of A, as well as her diagnosis that A had been sexually abused.
On cross-examination of the witnesses, defendant elicited testimony that young children are highly suggestible; that A and R lived in a chaotic environment during the time of the alleged abuse; that both defendant and R‘s father were named Doug and therefore the reference to “Doug” was potentially ambiguous; and that A‘s father David was accused of sexually abusing A in 1999 and had had ongoing contact with A since that time. Stefanelli also stated on cross-examination that she could not identify a particular individual as A‘s abuser based on the physical evidence present. Defendant did not otherwise raise an
After closing arguments, the trial court instructed the jury to consider the evidence of defendant‘s prior uncharged conduct “for two limited purposes“:
“first, as to whether defendant acted with knowledge as to the alleged criminal conduct in this case, or second, as to the identity of the person who committed the allegations in this case, i.e., whether the defendant or someone else
committed the alleged criminal conduct. Specifically you are not to draw the inference that the evidence of the other conduct makes defendant guilty of the charges in this case.”
The jury found defendant guilty of all charges.
Defendant appealed and assigned error to the trial court‘s order denying his motion in limine. Defendant reprised his pretrial arguments that the uncharged misconduct evidence was inadmissible.4
The Court of Appeals affirmed the trial court‘s decision to deny defendant‘s motion in limine, but it did so on narrower grounds than those relied on by the trial court. The Court of Appeals reasoned that the uncharged misconduct evidence was relevant and admissible under
“The credibility of the victim‘s identification of defendant *** was plainly a contested issue.
“The uncharged misconduct evidence was relevant to bolster the victim‘s credibility on that issue. A jury could conclude that [A] would be less likely to misidentify her abuser if she had been abused by the same person on other occasions and had seen the same person abuse [R] as well. Likewise, evidence that R had reported being abused by
defendant bolstered the credibility of [A‘s] identification of defendant.”
Id. at 663-64 (internal citations omitted.). The court concluded that “[t]he relevance of that evidence does not rely on an impermissible inference about defendant‘s character,” and it affirmed the trial court‘s ruling denying defendant‘s motion in limine. Id. at 664.
At the outset, we recognize that the form of the challenged ruling—here, an order denying a motion in limine—constrains our analysis of this case. A motion in limine is a motion made by a party, commonly prior to trial, seeking an order, as relevant here, to exclude certain evidence from the trial. See Black‘s Law Dictionary 1038 (8th ed 2004) (stating definition). It is not uncommon for a party to file a motion in limine to keep damaging evidence, particularly evidence of a criminal defendant‘s prior bad acts, from the eyes and ears of the jury. As this court previously has explained, a motion in limine is preferred because, “[i]f counsel must wait to make an objection and receive a ruling in front of the jury, the client could be prejudiced even though the ruling was in the client‘s favor.” State v. Foster, 296 Or 174, 183, 674 P2d 587 (1983). Stated differently, “[a]n objection to evidence, with a motion to tell the jury to disregard it, is a poor alternative. The old cliché, ‘you can‘t unring a bell,’ still applies.” Id. at 182.
Yet relying on a motion in limine to limit evidence before trial presents its own obstacles. A challenge during trial to an offer of evidence provides greater context for the trial judge to assess issues concerning the admissibility of the proffered evidence in light of what has occurred in the course of the trial. In contrast, a trial judge ruling on a motion in limine must rely on the parties’ representations and arguments about what they expect the evidence, including the challenged evidence, will demonstrate during trial. Those representations and arguments can be hypothetical and abstract. Moreover, as trial progresses, new circumstances may arise that directly or indirectly alter the admissibility or evidentiary value of certain pieces of evidence. A trial judge has discretion either to deny or to postpone ruling on a pretrial motion until more information
In this case, defendant challenges the trial court‘s pretrial order denying his motion in limine and does not assign error to the admission of the prior bad act evidence during trial proceedings. As noted, defendant made no objections at trial to the introduction of the evidence of defendant‘s prior bad acts. Defendant‘s motion in limine preserved the issue that he now raises for appellate review. This court previously has recognized that a defendant properly may assign as error the denial of a pretrial motion in limine to exclude arguably irrelevant or prejudicial evidence. State v. Madison, 290 Or 573, 575-76, 624 P2d 599 (1981). In Foster, this court determined that, notwithstanding a lack of later relitigation during trial of the same issue, an objection to evidence in a motion in limine preserves the issue of admissibility, noting that the moving party made “a sufficient offer of proof of what would happen in the trial to permit the court to rule intelligently on the proprietary of the offered evidence,” and “the judge gave a final ruling.” 296 Or at 183-84; see also State v. Cole, 323 Or 30, 35, 912 P2d 907 (1996) (concluding that the lack of later relitigation of an issue decided prior to trial, “even where a statute permits relitigation on a discretionary basis, does not render any claim of error associated with the ruling unpreserved“).
Finally, we note that defendant‘s reliance on the trial court‘s pretrial ruling for his assignment of error does affect
We turn to defendant‘s evidentiary arguments on review.
Nonetheless,
In examining evidence to be admitted under the categories or exceptions to
As noted, the trial court reasoned that defendant‘s uncharged Lane County misconduct was relevant to prove intent, absence of mistake or accident, and identity, and the Court of Appeals affirmed based on identity alone. Turning to the Court of Appeals opinion first, we agree with that court‘s conclusion that the evidence was not properly admitted under the traditional identity exception recognized by this court. That exception permits the admission of evidence proving that a defendant operated in a novel or distinctive manner that identifies that defendant as the perpetrator. See State v. Johnson, 313 Or 189, 196, 832 P2d 443 (1992) (prior bad acts offered to prove identity by modus operandi requires “a very high degree of similarity between the charged and uncharged crimes” as well as a distinctive methodology “so as to earmark the acts as the handiwork of the accused“); Johns, 301 Or at 551 (“[T]o prove identity the prior acts must be a ‘signature’ crime.“). Mere repetition of crimes of a similar class, such as repeated assaults or robberies, without more, is not sufficient. Pinnell, 311 Or at 109-10. Rather, there must be some unique and repeated feature that makes the act stand out. Id. The acts at issue here fail to meet that requirement.
However, as noted, the Court of Appeals went beyond the stated modus operandi exception to recognize that evidence can be admitted to prove identity if it is relevant to bolster a witness‘s identification. More specifically, the court found that A‘s ability to recognize and identify defendant as the party who had abused her on this occasion could be supported by evidence that, on a past occasion, (1) defendant had abused A; (2) A had seen defendant abuse R; and (3) defendant had abused R. The Court of Appeals erred in applying that rationale. In our view, bolstering A‘s identification of defendant with defendant‘s prior uncharged conduct against A and R constituted an impermissible propensity purpose under these circumstances, because the reasoning relies on an impermissible character inference about defendant. See Charles Alan Wright & Kenneth W. Graham, Jr., 22 Federal Practice and Procedure: Evidence § 5246, 515 (1978) (use of prior bad acts evidence to bolster witness‘s identification is not a legitimate use of other crimes evidence under
Taking the evidence of defendant‘s uncharged misconduct against A first, the Court of Appeals reasoned that evidence that defendant sexually abused A on a prior occasion tends to show that A‘s identification of defendant as her abuser on the occasion charged was accurate. Although that reasoning may be properly applied in some circumstances, in this case, defendant and A had continuous, ongoing contact with one another. Thus, given A‘s familiarity with defendant, the force of the “bolstering” evidence rests primarily on an inference that, on the occasion charged, defendant acted consistently with his character to sexually abuse A. That
Because we conclude that evidence of defendant‘s prior bad acts against A and R was not properly admitted to prove identity, we must examine whether the evidence was properly admitted to prove intent and absence of mistake or accident.6 On that issue, defendant argues—as he did in his argument in support of his pretrial motion—that his uncharged Lane County conduct was irrelevant for those purposes because his defense was that the charged acts never occurred and, if the acts did occur, he did not commit the acts. In defendant‘s view, had he admitted committing the underlying charged acts, but then claimed that he had acted, for instance, by mistake or inadvertence, then intent would be directly at issue during trial and the prior misconduct evidence would be admissible to establish intent. By not admitting the charged act, defendant claims that the first question for the jury in this case was whether he committed the sexual act charged. Until the record established that fact, defendant argues, the prior misconduct evidence offered to prove that he acted intentionally was irrelevant, except under the impermissible theory that the charged acts had occurred because defendant had a propensity to commit such acts. Stated differently, defendant asserts that the relevance of evidence of intent thus depends upon a prior finding of fact or a stipulation that establishes that defendant committed the charged act.
When the trial court ruled on defendant‘s motion in limine, it applied the doctrine of chances, as construed in Johns, and determined that the uncharged acts were sufficiently similar to the charged acts to be relevant to prove intent. However, at the time of the ruling, the trial had not occurred and, consequently, the record contained no evidence sufficient to support a finding that the charged acts had occurred. Defendant had not stipulated that he had touched A‘s genital area in Clatsop County. Before trial, and in the absence of a stipulation by defendant that he had touched A‘s genital area in Clatsop County, evidence of defendant‘s uncharged misconduct involving A and R in Lane County was only conditionally relevant. That is, the uncharged misconduct evidence might have become relevant if certain conditions had occurred concerning the trial court record. First, in the absence of defendant‘s stipulation, the state would have to introduce evidence at trial sufficient to permit the factfinder to find beyond a reasonable doubt that, in fact, defendant had touched A‘s genital area in
The trial court, however, did not decide that the evidence of defendant‘s uncharged misconduct was conditionally admissible in the manner that we have described above. It ruled instead, without conditions, that the uncharged misconduct evidence was relevant and admissible. In light of the record that existed when the trial court addressed the motion in limine, the court‘s ruling was erroneous.
The state also cites State v. McKay, 309 Or 305, 787 P2d 479 (1990), for the proposition that prior bad acts may be admitted to demonstrate a defendant‘s sexual predisposition for a particular victim. In McKay, this court indicated that a trial court could properly admit evidence of the defendant‘s past sexual contacts with a minor female victim under
The final question for this court is whether the trial court‘s error was harmless. Defendant argues that it was not harmless because the state introduced and relied on the prior bad acts evidence throughout the trial. The state, for its part, asserts that any evidentiary error was harmless, but the state fails to explain that argument. We agree with defendant. The main issue in this case was whether the charged abuse occurred. The court‘s evidentiary ruling permitted the jury to consider the uncharged misconduct evidence before it decided whether defendant had committed the charged acts. That created a risk that the jury would use the uncharged misconduct evidence for an impermissible propensity purpose—i.e., to decide that, because defendant had committed the uncharged acts, his character was such that he again would act in the same manner and commit the charged acts. Thus, this is not an occasion where there was little likelihood that the error affected the verdict. See, e.g., State v. Naylor, 291 Or 191, 196-98, 629 P2d 1308 (1981) (applying Or Const, Art VII (Amended), § 3); State v. Davis, 336 Or 19, 34-35, 77 P3d 1111 (2003) (same).
The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.