STATE OF OREGON, Respondent on Review, v. DAVID JOHN SKILLICORN III, Petitioner on Review.
(CC C152791CR); (CA A162831); (SC S066822)
IN THE SUPREME COURT OF THE STATE OF OREGON
Argued and submitted January 15, 2020; decision of Court of Appeals reversed, judgment of circuit court reversed, and case remanded to circuit court for further proceedings January 14, 2021
367 Or 464 (2021) | 479 P.3d 254
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.
On review from the Court of Appeals.*
Emily P. Seltzer, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioner on review. Also on the brief was Ernest G. Lannet, Chief Defender.
Lauren P. Robertson, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on
Before Walters, Chief Justice, and Nakamoto, Flynn, Duncan, Nelson, and Garrett, Justices.**
DUNCAN, J.
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.
In this criminal case, defendant was charged with first-degree criminal mischief, among other crimes. The state‘s theory regarding the charge was that, after a disagreement with his girlfriend, defendant intentionally drove a truck into her car. Defendant admitted that he had hit the car but claimed that he had done so accidentally. Specifically, he claimed that the truck had malfunctioned and that he had lost control of it. To rebut that claim, the state sought to introduce evidence that, after a prior disagreement with his girlfriend, defendant had driven recklessly. Over defendant‘s objection, the trial court admitted the evidence. The state used the evidence to argue that, when defendant “gets angry, he acts out,” and that, therefore, the jury should find that, on the night of the charged crimes, defendant had acted out by intentionally damaging his girlfriend‘s car. The jury convicted defendant of first-degree criminal mischief and other crimes.
Defendant appealed, asserting that the trial court‘s admission of the evidence of his prior driving violated
For the reasons explained below, we conclude (1)
I. HISTORICAL AND PROCEDURAL FACTS
We begin with a brief description of the undisputed historical facts. On the night of the charged crimes, defendant was using his employer‘s truck. After completing a work project, defendant drove the truck to visit his girlfriend, Walker, who was staying at her mother‘s house. Defendant wanted Walker to leave with him, but Walker declined to do so because she and her mother, Peterson, had a work obligation the next morning. Defendant left the house and got in the truck. Moments later, defendant hit the back of Walker‘s car, which was parked in Peterson‘s driveway. Defendant got out of the truck, returned to the house, and apologized to Walker and Peterson, who told him to leave. Defendant got back in the truck and drove away. As he did, he hit a car parked on the street. The car belonged to one of Peterson‘s neighbors, Howard. One of the truck‘s wheels lodged in Howard‘s car, and the truck crashed into some nearby trees. Defendant got out of the truck, collapsed, and was taken to the hospital. After being released from the hospital, defendant was arrested. He told the arresting officer that the truck had malfunctioned. Specifically, he told the officer that, “[w]hen he put the truck in drive and tried to leave, the truck just took off on him and it jumped forward,” causing him to hit Walker‘s car. Defendant also told the officer that, on the street, the truck “pulled to the right,” causing him to hit Howard‘s car. In addition, defendant told the officer that the truck belonged to his employer and that it “had been loaned to him so he could fix issues that were already going on with [it].”
After jury selection, but before the presentation of evidence, the prosecutor made a motion for a ruling on the admissibility of evidence of defendant‘s prior driving. The prosecutor told the trial court that the state‘s theory regarding the first-degree criminal mischief charge was that defendant “got angry and rammed [Walker‘s] car *** on purpose.” She also told the court that, because she “need[ed] to prove that the defendant intentionally damaged *** Walker‘s car,” she wanted to introduce evidence that defendant had “driven in the same [or] similar manner in the same neighborhood before, after leaving [Walker‘s] residence.” She stated that, when Howard and another neighbor, Hout, were interviewed by the police on the night of the charged crimes, they reported that defendant had “blazed through the neighborhood before.” She also stated that Howard and Hout would testify that defendant had previously “crashed somewhere on the street.”
Defense counsel objected to the admission of the evidence of defendant‘s “prior driving in the neighborhood.” He also told the trial court that the state had not provided any information about a prior crash. The court asked the prosecutor whether the discovery that it had provided to defendant contained any information about a prior crash, and the prosecutor said that it had not, but that she had spoken to Hout and he had told her more about defendant‘s prior driving in the neighborhood. The prosecutor also told the court that Hout was in the courthouse and that defense counsel could speak with him.
At that point, the trial court ruled that evidence of defendant‘s prior driving in the neighborhood was relevant, stating:
“With regard to the incident that occurred prior to this at *** Walker‘s residence, I do find that that is relevant
because we‘re back at—we‘re at her—this incident on November 7th is at—at her house, it involves a car that he—a Toyota Tundra which is an—the unauthorized use and he‘s there at the house on November 7th and then that‘s when the criminal mischief in the first degree occurs and the state has to prove the intent. And his prior conduct with regard to the issues with regard to Ms. Walker and what he‘s done before then is relevant.”
(Emphasis added.) The court then balanced the probative value of the evidence against the risk of unfair prejudice, pursuant to
After opening statements, defense counsel asked the trial court to revisit its ruling. Defense counsel told the court that he had spoken with Hout and learned that, although the police had been called in response to a prior incident during which a car had gone off the street and onto a grassy area in the neighborhood, they had not identified defendant as the driver of the car in that incident. The prosecutor did not dispute that, but she said that Hout had told her that he knew defendant was the driver because he saw defendant later and confronted him about the incident. The court adhered to its ruling.
At trial, the state presented evidence about the events on the night of the charged crimes. It also presented evidence about defendant‘s prior driving in the neighborhood. That evidence included testimony about defendant‘s driving in the neighborhood in general, as well as testimony about the incident during which defendant drove onto the grassy area.
On direct examination, the prosecutor asked Peterson to “describe [defendant‘s] driving in the neighborhood.” Peterson responded:
“Well, on one occasion, [defendant and Walker] had a fight and [defendant] left, got into his truck and just screamed, I mean, just—it was so loud and it was so fast it scared me and so I kept [Walker] in the house. And my
neighbors after that event, I think he went up a grassy knoll area, but came over and said, ‘We have children and we have pets and we don‘t want him in the neighborhood anymore. We‘ve heard his truck. We know the way he drives and, you know, we‘re—we‘re going to bring your name up to the Board.’ And so I thought I might have to move for a while.”
When questioning Hout, the prosecutor elicited additional details about defendant‘s prior driving:
“Q: Okay. Now, you said that you know the defendant. And have you witnessed him driving dangerously in the neighborhood before?
“A: As a matter of fact, I have.
“Q: Okay. Describe that.
“A: After doing a little mental searching around September 14th, it‘s a nice summer day. I‘ve got a deck out front and I‘m sitting on my deck. I hear burning rubber. You know, a car tearing loose. Straight across from me is a green space. You‘ve got a sidewalk, there‘s a green berm and on the other side of that berm is a little water drainage. I hear—I see the car again coming north down 178th ***. It burns out, hits the curb, goes sideways up into the green space and then kind of launches back down into the street, gets squirrely, almost hits Mr. Howard‘s car that was inevitably hit in the later incident and I—I run down to the street just in time to make—to make out the vehicle make and model as it careens across Walker Road. No stop, probably doing 35 to 40 miles an hour, full accelerator. Never let off the accelerator.”
Hout testified that Walker came down the sidewalk and indicated that the driver of the car was her boyfriend. Hout kept an eye out for defendant and, when he saw defendant again, he walked up to him and said, “‘Hey, man, are you the guy that came playing Dukes of Hazard through my neighborhood a couple of weeks ago?‘” and defendant “said something to the effect of, ‘What if I am?‘” Hout then threatened defendant, and defendant threatened him back.
The prosecutor also asked Howard, who owned the second car that defendant hit, about defendant‘s prior driving:
“Q. Okay. And you spoke to the police about [defendant] previously driving recklessly in the neighborhood?
“*****
“A. *** I didn‘t know who [Walker] was, but I knew that the house on the corner where [Peterson] lived at, that whoever was visiting that residence had a bad habit of racing in and racing out of my neighborhood. And my house is right on the corner, so my house is the first house that a car comes to as it pulls into my neighborhood.
“And I‘ve got, you know, four sons at the house that play either—not in the street, but, you know, when you‘re playing in the street or you‘re running across the street, there‘s a green space directly across the street from my house and all the neighborhood kids gather there and play, so it—it‘s—it‘s very upsetting to me when anybody drives in or out of my neighborhood extremely fast.
“Q. Okay. And was that what you were talking about when you told—I think it was Officer Mansfield that you spoke to. Does that sound right?
“A. Right.
“Q. That he‘d blazed out of the neighborhood before. You used the word ‘blazed.’ Does that sound about right?
“A. Correct.”
In her closing argument, the prosecutor told the jury that, in order to find defendant guilty of the first-degree criminal mischief charge, they had to find that “defendant intentionally damaged or destroyed the property of another,” specifically, Walker‘s car. She also told the jury that “intent” seemed “to be what the defense is contesting the most” and that they could rely on defendant‘s prior driving to find that defendant had acted intentionally. She noted that Peterson had testified that when defendant “gets angry, he acts out.” As an example of that behavior, the prosecutor referred to the prior incident when defendant drove onto the grassy area, which Peterson had mentioned in her testimony. The prosecutor urged the jury to rely on that incident to infer that defendant had acted intentionally when he hit Walker‘s car, arguing, “So it makes a little more sense now why [Peterson] would have said on the stand that when he gets angry, he acts out. So just like he did prior, proving the intent
The prosecutor also referred to Hout‘s testimony about the prior incident. She noted that Hout was concerned about defendant‘s driving and that, when Hout confronted defendant about the prior incident, defendant did not take responsibility for it:
“[Hout] was mad, you know. You could tell on the stand that he was mad, but, you know what, you can understand why. I mean, after [the prior incident] happened, you know, they‘re concerned about the neighborhood. It‘s a quiet neighborhood with children running around. Mr. Howard has six children. Right? I think four are still home and able to play. So, after that happened, he apparently asked around to find out who it was. He found out that it was Ms. Walker‘s boyfriend who liked to show up.
“So the next time he showed up, they had this confrontation and *** Hout said, ‘You‘re not—don‘t drive like that in my neighborhood anymore. You know, that‘s it.’ What does defendant say? Something like, ‘What are you going to do about it?’ or ‘What if it was me?’ You know, just doesn‘t take any responsibility or apologize at all. So, you can kind of (inaudible) *** Hout was upset on the—stand. But, again, evidence of his intent in this case that he (inaudible) down there when he was angry.”
(Emphases added.)
Finally, the prosecutor turned to Howard‘s testimony that defendant had “‘blazed’ out of the neighborhood before.” She told the jury that they could “consider that evidence for the specific purpose of proving the defendant‘s mental states.”
The jury found defendant guilty of unlawful use of a vehicle, first-degree criminal mischief for intentionally damaging Walker‘s car, and second-degree criminal mischief for recklessly damaging Howard‘s car. It found him not guilty of failing to perform the duties of a driver.
Defendant appealed, challenging, among other things, the trial court‘s admission of evidence of the prior incident when he had driven onto the grassy area. Defendant argued that the evidence was propensity evidence, which is barred
The Court of Appeals observed that “[i]t is an understatement to say that the line between propensity and nonpropensity inferences is difficult to discern under Oregon law.” Skillicorn, 297 Or App at 678. It noted that, “when uncharged misconduct evidence is admitted—as it was in this case and Johns—to prove that a person acted with a particular intent on a prior occasion and, therefore, likely acted with the same intent on the charged occasion, the relevance of the evidence appears to rely ‘on a classic propensity theory.‘” Id. But, because it was bound by Johns, the court held that the evidence of defendant‘s prior driving was admissible. Id. at 681.
II. PARTIES’ ARGUMENTS
On review, defendant renews his argument that the trial court erred in admitting the evidence of the prior incident in which he drove onto the grassy area. He contends that, contrary to the Court of Appeals decision based on Johns, the evidence was not admissible under the doctrine of chances. Defendant asserts that the doctrine is based on “the improbability of recurring inadvertent events: that it is objectively improbable that the same accident will befall the same person again and again.” Therefore, he reasons that
“[a] deliberate prior act is not admissible under the doctrine of chances because its relevance does not depend on that probabilistic inference. Instead, it depends on a propensity inference. The prior act is relevant because if a person acted deliberately—with bad intent or guilty knowledge—on a prior occasion, it is likely that he acted with the same bad intent on a later, similar occasion.”
Defendant urges that, because the doctrine of chances is premised on the proposition that “multiple similar accidents are highly improbable,” this court should overrule Johns to the extent that it allows for the admission of evidence of
Regarding the specific evidence in this case, defendant contends that the evidence of the prior driving incident was not admissible under the doctrine of chances because, as proffered by the state, its relevance was “depend[ent] solely on a propensity inference—that if the defendant drove dangerously once, he had a propensity to drive dangerously again—rather than on the proposition that it is unlikely that multiple, unusual similar accidents befell defendant multiple times.”1
In response, the state renews its argument that the evidence was not barred by
Thus, as framed by the parties, the issue in this case is whether the evidence of the prior incident in which defendant drove onto the grassy area was admissible under the doctrine of chances. Both parties regard the doctrine as a nonpropensity theory of relevance. There is a debate among commentators regarding whether the doctrine actually is a nonpropensity theory of relevance. See Skillicorn, 297 Or App at 680-81 (observing that “over the years, legal
III. ANALYSIS
Because defendant argues that the evidence of the prior driving incident was barred by
A. The Requirement of a Nonpropensity Theory of Relevance
In order to be admissible, evidence of uncharged misconduct must be relevant under
The proponent‘s theory of relevance is critical. That is because, even if evidence is relevant under
“Evidence 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.”
“‘Character’ for purposes of evidence law means a person‘s disposition or propensity to engage or not to engage
If the proponent‘s theory of relevance requires the factfinder to employ propensity reasoning, then the trial court cannot admit the evidence based on that theory under
Consequently, in criminal cases,
That prohibition is a fundamental aspect of our legal system. As this court observed in State v. Baker, 23 Or 441, 442-43, 32 P 161 (1893), “[t]he general rule is unquestioned that evidence of a distinct crime unconnected with that laid in the indictment, cannot be given in evidence against the prisoner,” and “under no enlightened system of jurisprudence can a person be convicted of one crime on proof that he has committed another.” Similarly, in People v. Molineux, 168 NY 264, 291, 61 NE 286 (1901), the Court of Appeals of New York explained:
“The general rule of evidence applicable to criminal trials is that the state cannot prove against a defendant any crime not alleged in the indictment, either as a foundation for a separate punishment, or as aiding the proofs that he is guilty of the crime charged. *** This rule, so universally recognized and so firmly established in all English-speaking lands, is rooted in that jealous regard for the liberty of the individual which has distinguished our jurisprudence from all others, at least from the birth of Magna Charta. It is the product of that same humane and enlightened public spirit which, speaking through our common law, has decreed that every person charged with the commission of a crime shall be protected by the presumption of innocence until he has been proven guilty beyond a reasonable doubt.”
(Internal citations omitted.) See also State v. Houghton, 43 Or 125, 130, 71 P 982 (1903) (describing the prohibition against propensity evidence as “a universal rule of law“).
The purpose of the prohibition is to protect the fairness of trials and the accuracy of verdicts. As the Supreme Court summarized in Michelson v. United States, 335 US 469 (1948),
“Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant‘s evil character to establish a probability of his guilt. *** The State may not show defendant‘s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.”
(Emphasis added; footnotes omitted.) Similarly, in State v. Pinnell, 311 Or 98, 105-06, 806 P2d 110 (1991), this court explained that “[b]ad character evidence (such as other crimes by the accused) is excluded under the propensity rule, not because it is irrelevant, but because of the risk of unfair prejudice to the accused.” Among other things, propensity evidence can cause factfinders to “convict for crimes other than those charged” or “give more weight to the evidence than it deserves in assessing the guilt of crime charged.” Id. at 106.
Propensity evidence can have numerous harmful effects, including those detailed below. It can (1) impair the opposing party‘s ability to present its case; (2) distract and confuse the factfinder; (3) prejudice the factfinder against a person; and (4) result in verdicts based on erroneous assumptions.
First, propensity evidence can impair the opposing party‘s ability to present its case because it forces the opposing party to defend itself against allegations beyond those in the pleadings. The evidence may take the opposing party by surprise, a concern reflected in Hampden‘s Trial, in which the court commented that, in a forgery case, it would not allow the prosecution to present “evidence of any other forgeries, but that for which [the defendant] was indicted, because we would not suffer any raking into men‘s course
Second, propensity evidence can distract factfinders. It can result in “confusion of issues and undue consumption of time through what may be, in effect, a trial within a trial to ascertain the relationship between the purported other crime and the defendant.” Pinnell, 311 Or at 106.
Third, and perhaps most importantly, propensity evidence can give rise to prejudice, which can detract from the factfinder‘s ability to neutrally and thoroughly assess the evidence in the case. It creates a risk that verdicts will be affected by bias at a conscious or subconscious level. For example, a juror could decide a case against a party because, based on evidence of the party‘s uncharged misconduct, the juror believes that the party is a bad actor. Or the juror could believe that the party should be punished for the uncharged misconduct, especially if the party has not been held accountable for that misconduct. Or the juror could believe that, given both the uncharged and charged misconduct, there is a risk that the party will engage in misconduct in the future and a verdict against the party will reduce or prevent that possibility.
In a criminal case, prejudice arising from the admission of evidence of uncharged misconduct can undermine fundamental constitutional protections, including the presumption of innocence and the requirement that the
Fourth, uncharged misconduct evidence can result in verdicts based on erroneous assumptions because factfinders may give “more weight to the evidence than it deserves[.]” Pinnell, 311 Or at 106. They may “misuse the evidence by overvaluing its persuasiveness.” Lave & Orenstein, 81 U Cin L Rev at 798.
“Objections arise from psychological questions surrounding the reliability of character evidence, particularly the way such evidence is generated in a courtroom. People are not predictable characters and so psychologists question whether we can reliably determine how someone behaved on one particular occasion by reviewing the person‘s past deeds.”
Id. (footnotes omitted). Thus, there is a concern that factfinders “will take what is essentially a weak circumstantial argument—‘he did it once, he probably did it again,’ or ‘he‘s the type of person who would do such a thing‘—and prove too much with it.” Id.
Professor Imwinkelried provides a figure to illustrate the dangers posed by propensity reasoning. The figure breaks down the reasoning into two steps, and Imwinkelried explains that each of those steps involves a “probative danger” that “creates the risk of a verdict on an improper basis.”
| Item of Evidence | Intermediate Inference | Ultimate Inference |
|---|---|---|
| Uncharged act by the accused | The accused‘s personal subjective bad character | The accused‘s conduct on the charged occasion consistent with the bad character |
Edward J. Imwinkelried, Criminal Minds: The Need to Refine the Application of the Doctrine of Objective Chances as a Justification for Introducing Uncharged Misconduct Evidence to Prove Intent, 45 Hofstra L Rev 851, 859 (2017); Imwinkelried, 1 Uncharged Misconduct Evidence § 2:19 at 2-141.
The first step in propensity reasoning is inferring the defendant‘s subjective character, disposition, or propensities from the uncharged misconduct. Imwinkelried, 1 Uncharged Misconduct Evidence § 2:19 at 2-141. In the words of
The second step in propensity reasoning is “inferring the defendant‘s conduct on a particular occasion from his or her subjective character.” Id. § 2:19 at 2-143. That is, in the words of
Although
“Evidence 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.”
(Emphasis added.) By its terms, the list of permissible purposes is not exclusive. Thus,
But, as mentioned,
Trial courts “must not jump immediately” to the purposes listed in
A proponent of uncharged misconduct evidence might make a general assertion that the evidence is admissible for one or more of the purposes listed in
In this case, the state‘s theory of relevance was that the evidence of defendant‘s driving was admissible for the related purposes of proving his intent and disproving his
Thus, the question becomes whether the state‘s theory of relevance involved propensity reasoning. The state asserts that it did not, because the evidence was relevant under the doctrine of chances, which, the state asserts, is a nonpropensity theory of relevance. In response, defendant argues that the doctrine does not allow the admission of evidence to support the type of argument that the state made in this case. To resolve that dispute, we must examine the reasoning that underlies the doctrine.
B. The Doctrine of Chances
The doctrine of chances is a theory of relevance based on the objective improbability of the recurrence of uncommon events. The idea underlying the doctrine is that, at some point, it becomes unlikely that each event in a series of similar events can have the same uncommon cause; therefore, if the number of events in a series claimed to have the same uncommon cause exceeds the number that can reasonably be expected to have that cause, a factfinder can infer that not all of the events actually have that cause. So, for example, if a party asserts that all the events in a series of similar events were accidents, an opponent might rely on the doctrine of chances to argue that the number of events exceeds the number of accidents that the party was likely to suffer, and the factfinder should therefore infer that not all the events were accidents.5
“§ 302. Theory of evidencing Intent. To prove Intent, as a generic notion of criminal volition or willfulness, including the various non-innocent mental states accompanying different criminal acts, there is employed an entirely different process of thought. The argument here is purely from the point of view of the doctrine of chances—the instinctive recognition of that logical process which eliminates the element of innocent intent by multiplying instances of the same result until it is perceived that this element cannot explain them all. Without formulating any accurate test, and without attempting by numerous instances to secure absolute certainty of inference, the mind applies this rough and instinctive process of reasoning, namely, that an unusual and abnormal element might perhaps be present in one instance, but the oftener similar instances occur with similar results, the less likely is the abnormal element likely to be the true explanation of them.”
Imwinkelried, 1 Uncharged Misconduct Evidence § 5:6 at 5-30-31 (quoting 2 John H. Wigmore, Evidence in Trials at Common Law § 302, 196 (3d ed 1940) (emphases added)). To illustrate his theory, Wigmore provided an example involving two hunters:
“[I]f A while hunting with B hears the bullet from B‘s gun whistling past his head, he is willing to accept B‘s bad aim or B‘s accidental tripping as a conceivable explanation; but if shortly afterwards the same thing happens again, and if on the third occasion A receives B‘s bullet in his body, the immediate inference (i.e. as a probability, perhaps not a certainty) is that B shot at A deliberately; because the chances of an inadvertent shooting on three successive similar occasions are extremely small; or (to put it in another way) because inadvertence or accident is only an abnormal or occasional explanation for the discharge of a gun at a given object, and therefore the recurrence of a similar result (i.e. discharge towards the same object, A) excludes the fair possibility of such an abnormal cause and points out the cause as probably a more natural and usual one, i.e. a deliberate discharge at A. In short, similar
results do not usually occur through abnormal causes; and the recurrence of a similar result (here in the shape of an unlawful act) tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e. criminal, intent accompanying such an act; and the force of each additional instance will vary in each kind of offence according to the probability that the act could be repeated, within a limited time and under given circumstances, with an innocent intent.”
Id. § 5:6 at 5-31 (quoting 2 Wigmore, Evidence § 302 at 196-97).
According to Imwinkelried, under Wigmore‘s theory, “the inference of mens rea arises from the implausibility of the defendant‘s claim of ‘successive similar’ innocent acts.” Id. § 5:8 at 5-36. “The defendant claims that he accidentally discharged the rifle in the victim‘s direction on each occasion; but as the number of ‘accidental’ discharges increases, the claim of accident becomes less believable.” Id. § 5:11 at 5-64. As Imwinkelried explains,
“In isolation, it might be plausible that the defendant acted accidentally or innocently; a single act could easily be explained on that basis. However, in the context of other misdeeds, the defendant‘s act takes on an entirely different light. The fortuitous coincidence becomes too abnormal, bizarre, implausible, unusual, or objectively improbable to be believed. The coincidence becomes telling evidence of mens rea.”
Id. § 5:6 at 5-29-30 (emphasis added). Thus, according to Imwinkelried, the doctrine of chances can be used to justify the admission of uncharged misconduct evidence to disprove a defendant‘s claim of successive similar accidents or other innocent acts when the evidence is sufficient to support an inference that the defendant‘s claim involves a “fortuitous coincidence” that is too “objectively improbable to be believed.” Id.
As Imwinkelried further explains, “The doctrine of chances theory is an example of reasoning by process of elimination. The proponent uses the theory to eliminate random chance as an explanation for the set of outcomes.” Id. § 4:1 at 4-31. But, “properly construed, the doctrine of
Given the idea that underlies the doctrine of chances—viz., the objective improbability of the recurrence of similar, uncommon events—there are two foundational requirements for its use: similarity and unusual frequency.
First, evidence of uncharged misconduct must be similar to the charged misconduct. That is because “[a] dissimilar uncharged incident has at most a negligible effect on the probability of an accidental occurrence of the social harm.” Edward J. Imwinkelried, The Use of Evidence of an Accused‘s Uncharged Misconduct to Prove Mens Rea: The Doctrines Which Threaten to Engulf the Character Evidence Prohibition, 51 Ohio St LJ 575, 589-90 (1990); State v. Leistiko, 352 Or 172, 186, 282 P3d 857, adh‘d to as modified on recons, 352 Or 622, 292 P3d 522 (2012) (observing that the number of other events required will depend on the circumstances, and that, in Johns, this court stated that “[a] simple, unremarkable single instance of prior conduct probably will not qualify, but a complex act requiring several steps, particularly premeditated, may well qualify“).
Second, the number of events in the series must exceed the number of events that could reasonably be expected to share the uncommon cause. Thus, in a case where a person claims that events were caused by accident, the number of events in the series would have to exceed the number of accidents that could reasonably be expected to befall the person. In other words, the number of similar, uncommon events has to be sufficient to establish a “fortuitous coincidence” that is too “abnormal” or “bizarre” to be believed. The number of events required will depend on how rare they are. Wigmore suggested that a single other event may not be sufficient. Imwinkelried, 1 Uncharged Misconduct Evidence § 5:7 5-33-34. But Imwinkelried posits that, if the event is very rare—a “once in a lifetime event“—a single other event may be sufficient. Id. at 5-35. “The key is the relative frequency rather than brute number of
The proponent of the evidence bears the burden of proving that the foundational requirements are satisfied. But if either of the two foundational requirements is unmet, the proponent “has not triggered the doctrine of chances[.]” Id. at 592. Unfortunately, according to Imwinkelried, when courts are asked to rule on the admissibility of uncharged misconduct evidence, they may fail to determine whether the proponent has satisfied the requirements:
“[I]n a large number of cases in which the courts admit uncharged misconduct to establish intent and the prosecution‘s only conceivable non-character theory is the doctrine of chances, the court‘s analysis is conclusory in the extreme. Rather than invoking the doctrine and inquiring whether the prosecution has satisfied the doctrine‘s requirements, the courts advance the broad generalization that similar misdeeds are admissible to prove intent.”
Imwinkelried, Criminal Minds, 45 Hofstra L Rev at 857 (footnotes omitted).
When applying the doctrine of chances, a factfinder is asked to consider the likelihood of the recurrence of the uncommon events. Therefore, Imwinkelried asserts, the admission of evidence of uncharged misconduct under the doctrine of chances does not violate the prohibition against propensity reasoning. To illustrate the difference between propensity reasoning and doctrine-of-chances reasoning, Imwinkelried sets out another figure:
| Item of Evidence | Intermediate Inference | Ultimate Inference |
|---|---|---|
| An uncharged event involving the accused | Considered together with the charged event, an objectively improbable coincidence | The probability of the accused‘s criminal state of mind at the time of one or some of the events |
The fact that the doctrine of chances is based on the objective improbability of the recurrence of similar, uncommon events leads us to two conclusions relevant to this case.
First, in cases like this, where the doctrine is used to prove “lack of accident,” the application of the doctrine requires an assessment of the odds that all of the events in a series were accidental; therefore, it does not make sense to include events in the series that are known not to have that cause or explanation. Doing so creates a false set. For example, if the defendant in a criminal case was charged with theft and claimed that he took the property at issue by accident, evidence that he had committed theft on two prior occasions would not be relevant on a doctrine-of-chances theory. Because the prior thefts were intentional, there would be no reason to ask, “What are the odds that all three thefts were accidental?” The answer to that question would be “zero,” because the first two are known to have been intentional. But the answer would not enable the factfinder to make any determination regarding whether the defendant has suffered more accidents than could reasonably be expected—which is what the factfinder must determine under a correct application of the doctrine of chances. To be sure, the prior thefts might be relevant on a propensity theory, but such a theory is prohibited by
Second, the doctrine of chances can be used only to support a particular type of argument: an argument about the objective improbability of certain events. According to Imwinkelried, that focus is what distinguishes doctrine-of-chances reasoning from propensity reasoning. Thus, the doctrine of chances cannot be used as a basis for arguing that, because a person acted in a certain way before, the factfinder should find that the person has a propensity to act in that way and, therefore, it is more likely that the person did so on a particular occasion.
It is often difficult to apply the doctrine of chances correctly. Just because a factfinder is using a series of events to assess the odds that the charged event was an accident does not mean that the factfinder is employing doctrine-of-chances reasoning. The factfinder could be employing propensity reasoning. As we will explain, that is what occurred in Johns.
C. The Application of the Doctrine of Chances in Johns
In Johns, the defendant was charged with murder for shooting his second wife. The defendant‘s defense was that the shooting was accidental. Johns, 301 Or at 537-38. Immediately after the shooting, the defendant called the police and reported that his wife had fired a gun at him and that, when he tried to take the gun from her, the gun went off and she was hit. Id. To rebut that defense, the state sought to introduce evidence that, six years earlier, the defendant had intentionally assaulted his first wife. Id. at 539-40. The state argued that the two incidents were similar because, around the time of each incident, the defendant was having problems in his career and marriage, was financially dependent on the victim, and had threatened the victim. Id. at 556. The trial court admitted the evidence over the defendant‘s objection. Id. at 557. The defendant was convicted, and he appealed.
On review, this court affirmed the admission of the evidence of defendant‘s assault on his prior wife. In doing so, this court discussed the doctrine of chances, quoting both
“Wigmore‘s theory of logical relevance does not depend on a character inference because the proponent is not asking the trier of fact to infer the defendant‘s conduct (entertaining a particular mens rea) from the defendant‘s subjective character. The intermediate inference is an objective likelihood under the doctrine of chances rather than a subjective probability based on the defendant‘s character.”
Id. at 554. And this court set out Imwinkelried‘s figure describing the inferences involved in doctrine-of-chances reasoning. Thus, in Johns, this court observed that the doctrine of chances is based on the objective improbability of the recurrence of uncommon events, like accidents.
But this court did not employ doctrine-of-chances reasoning. That is, it did not focus on whether the defendant had been involved in more purportedly accidental shootings or assaults than could reasonably be expected. That, of course, was because there was no evidence that the defendant had been involved in any purportedly accidental shootings or assaults other than the charged one. There was no claim that the defendant‘s prior assault was accidental. The state‘s theory (and all the evidence) was that the prior assault had been intentional. Thus, the state had used a prior intentional act to argue that it was more likely the defendant had acted intentionally when he committed the charged act. The state had used propensity reasoning, and this court followed suit. It affirmed the trial court‘s admission of the defendant‘s assault of his first wife, apparently on the theory that the assault was relevant “to show that when similarly agitated in a domestic setting [the] defendant will act violently and intentionally.” Id. at 551.
In short, this court in Johns described the doctrine of chances but did not properly apply it. The opinion is internally inconsistent and has created confusion. Although it acknowledged that propensity evidence is prohibited, it affirmed the admission of such evidence. And it has led to overly broad statements regarding the admissibility of uncharged misconduct evidence, which essentially state
The state urges us to adhere to Johns. It invokes the principle of stare decisis, which “promotes our legal system‘s compelling interests in ‘stability,’ ‘predictability,’ and ‘consistency in the law.‘” (Quoting Farmers Ins. Co. v. Mowry, 350 Or 686, 698, 261 P3d 1 (2011).)
“[S]tare decisis is a prudential doctrine that is defined by the competing needs for stability and flexibility in Oregon law.” Farmers Ins. Co., 350 Or at 698. When presented with a challenge to precedent, this court “begin[s] with the assumption that issues considered in our prior cases are correctly decided.” Id. “At the same time,” however, “this court‘s obligation *** is to reach what we determine to be the correct result in each case.” Id. Consequently, if a party can demonstrate that we erred in deciding a case, “because we were not presented with an important argument or failed to *** adequately analyze the controlling issue, we are willing to reconsider the case.” Id.
Here, several considerations weigh against adhering to Johns. First, Johns has not led to clarity in the law. It is internally inconsistent; it describes the doctrine of chances, but then reaches a result that is at odds with the logic that underlies the doctrine. Courts struggle to apply, in a principled manner, decisions that are internally inconsistent. As
D. The Admissibility of Evidence of Defendant‘s Prior Driving
With that understanding of the doctrine of chances, we return to the particular issue in this case. As mentioned, defendant argues that the evidence of the prior driving was not admissible under the doctrine. When reviewing a trial court‘s ruling admitting uncharged misconduct evidence, this court focuses on the theory of relevance relied on by the trial court. State v. Garrett, 350 Or 1, 6, 248 P3d 965 (2011). Here, the state‘s theory, which the trial court relied on, was not based on the objective improbability of repeated accidents. The state did not argue, for example, that the defendant had experienced an extraordinary number of vehicle malfunctions. Instead, as recounted above, the state sought to introduce the evidence to support an argument that, because defendant had acted a certain way during a prior incident, the jury should infer that he acted in a similar way during the charged incident. In other words, the state sought to introduce the evidence to prove defendant‘s character—that when he “gets angry, he acts out“—in order
Because we conclude that the trial court erred in admitting the evidence of defendant‘s prior driving, we turn to the question of whether the error was “harmless.” Evidentiary error is harmless only when “there is little likelihood that the particular error affected the verdict[.]” State v. Davis, 336 Or 19, 32, 77 P3d 111 (2003).
The state argues that admission of the evidence was harmless because there was other evidence of defendant‘s intent, including the locations of the cars when they were hit and the amount of damage caused. That is certainly true, but when determining whether the erroneous admission of evidence was harmless, the question is not whether the state presented sufficient other evidence to support a conviction. Instead, it is whether there is little likelihood that the error affected the verdict. Id. (when determining whether evidentiary error was harmless, this court focuses “on the possible influence of the error on the verdict rendered, not whether this court, sitting as a factfinder, would regard the evidence as substantial or compelling“).
In this case, we cannot conclude that the admission of the evidence of defendant‘s prior driving was harmless. The evidence related to the central dispute in the case. See State v. Marrington, 335 Or 555, 566, 73 P3d 911 (2003) (holding error related to a “central factual issue” was not harmless). And the state used it as propensity evidence, encouraging the jury to decide the case based on impermissible character-based reasoning. Such reasoning carries a risk of causing the verdict to be based on unfair prejudice, and here, the prosecutor highlighted defendant‘s past driving, noting that he had not taken responsibility for it and that he posed a danger to children in the neighborhood. Propensity evidence also carries a risk of causing the verdict to be based on an overestimation of the probative value of the evidence. That is particularly true in cases where the uncharged misconduct involves a different mental state than the charged misconduct, like this one, where the prosecutor
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.