I. BACKGROUND
The background facts, for purposes of appeal, are undisputed. On November 7, 2015, defendant's girlfriend, Walker, was staying overnight with her mother, Peterson. Around midnight, defendant knocked on the door of Peterson's home and implored Walker to come to his house instead. Walker declined to go, and defendant left. A few minutes later, defendant knocked again, insisting that Walker leave with him. Walker again said no and shut the door.
Shortly thereafter, Peterson heard the sound of defendant either revving the engine or spinning the tires of the truck he was driving, followed by "a very loud crash."
Meanwhile, one of Peterson's neighbors, Howard, was in his garage when he heard the sound of tires "burning out," followed by the faint sound of a crash. Howard then heard the sound of an engine revving and picking up speed, followed by an incredibly loud sound "like a bomb went off." He opened his garage door and saw that his own car, a Honda Civic, which had been parked in front of his driveway, was now perpendicular to the road, and a wheel from a larger vehicle had broken off and was stuck in the Civic. He looked around and saw a truck that was stopped in the trees on a wooded lot on the corner across the street. The truck was missing a front wheel, and parts and debris from the truck and the Civic were strewn across the street.
As Howard crossed the street toward the truck, he saw defendant open the door and get out of the truck. It looked to Howard as though defendant was going to run, but Howard stopped him and told him that he had been in an accident and that Howard would help him. Defendant collapsed to the ground as though he were injured or in shock. Another neighbor, Hout, also arrived on the scene. As Hout and Howard were trying to determine what type of aid to administer, defendant suddenly picked up his head and said, "Tell [Walker] I love her." An ambulance arrived and transported defendant to the hospital.
A police officer followed the ambulance to the hospital. Defendant had not sustained any injuries and was released, and the officer arrested him and took him to the police station. On the way to the station, defendant told the officer that the truck "took off" and that "the pedal had slid." Defendant said that the truck belonged to his boss, that it had "significant issues," and that defendant had the truck because he was repairing it.
At the police station, after the police gave him Miranda warnings, defendant asserted that he was not trying to
For that sequence of events, defendant was charged with unauthorized use of a vehicle, ORS 164.135, first-degree criminal mischief, ORS 164.365, failure to perform the duties of a driver, ORS 811.700, and second-degree criminal mischief, ORS 164.354, and he was incarcerated while awaiting trial. During that incarceration, defendant spoke on the phone with Walker about how she could avoid testifying; he also spoke to an unknown woman about whether Walker would have to testify. Defendant told the woman that "[n]obody can say whether I intentionally did something or not because no one was there."
The state, anticipating a claim that the truck had malfunctioned, moved in limine to admit evidence of a previous occasion in which defendant had "driven in the same similar manner in the same neighborhood before, after leaving the girlfriend's residence." The prosecutor represented to the trial court that the two neighbors, Howard and Hout, would testify about an earlier incident when defendant had left Peterson's house and "tore down the street and then crashed somewhere on the street." Defendant objected to the admission of that evidence, arguing that defendant was not charged with reckless driving, so "I don't know what his prior driving through the neighborhood would be relevant for." Defendant also objected that the police reports indicated that Howard had mentioned that defendant had "blazed out of the neighborhood before" but nothing about another accident.
The prosecutor then explained that she had spoken with Hout after the police report was generated, and that Hout had provided additional details, including information
"With regard to the incident that occurred prior to this at the-at [Walker's] residence, I do find that that is relevant because * * * 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 conducted balancing under OEC 403 and determined that the probative value of the evidence was not substantially outweighed by the risk of prejudice. Accordingly, the court concluded that "it is admissible and I will allow those things that occurred prior over at Ms. Walker's home or neighborhood to be admissible for the jury. They will then be receiving * * * an instruction that's required under [ State v. Leistiko ,
After the parties had given their opening statements, and just before the state presented its first witness, defendant asked the court to revisit its ruling on the admissibility of the previous incident, based on a conversation defense counsel had with Hout during a recess. Defendant argued that Hout had not seen the driver of the vehicle involved in the earlier incident, and that, even though police had been called during that incident, Walker had not identified defendant as the driver. For that reason, defendant "renewed [his] objection regarding the issue of whether or not there's even enough to show that it was [defendant] who was driving on this prior incident that the State wants to go into."
The prosecutor, in response, explained that Hout was certain that defendant was the driver on that earlier occasion because Hout had later confronted defendant about that incident and nearly gotten into a fight with him. With that additional information that defendant was the driver,
During trial, the state elicited testimony about that previous incident, as well as testimony about defendant's driving patterns generally. Under direct examination, Peterson was asked whether she had seen or heard defendant's vehicle before he drove it into her garage. She responded that it was a large, noisy truck, and that she heard him revving the engine when he arrived and when he left. She testified that it concerned her "[b]ecause I live in a really nice residential neighborhood and everybody cares about everyone's kids and animals and-and I have been told by my neighbors to keep him out of the neighborhood and I thought, 'Why? You can't say that to me.' But the neighbors did not like [defendant], so-because he-his driving pattern. He would scream down the street[.]" At that point, defense counsel objected, "for reasons previously stated" without any further elaboration. The court responded, "Based on that objection, overruled."
Later, the prosecutor asked Peterson follow-up questions about defendant's driving. She asked Peterson, "And how would you describe his driving in the neighborhood?" Peterson responded:
"Well, on one occasion, [Walker] and [defendant] 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."
While questioning Hout, the prosecutor elicited further details about that incident in
"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 heading south. 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.
"Q. What happened? Did you call the police or-
"A. Well, that's when I had the fortune of meeting his girlfriend, [Walker], because she came walking down the sidewalk and I'm like, 'What the F. was that?'
"* * * * *
"A. I could tell that something had happened between the two of them and she was just like kind of, 'Oh, my God.' "
Hout also described the confrontation he had with defendant after the incident. Hout testified that he had been "watching the neighborhood waiting for this guy to come back" and then approached defendant when he saw him:
"I walked up to him, I said, 'Hey, man, are you the guy that came playing Dukes of Hazard through my neighborhood a couple of weeks ago?' He said something to the effect of, 'What if I am?' And I said, 'You know, I'll tell you what, if-you know, if you pull a stunt like that again, you're going to have a serious F-ing problem.' He looked at me and he said, 'You don't know who you're F-ing with,' and I said 'you don't know who you're F-ing with,' and he said-he leanedback on his car with a cigarette and he said, 'Handle your shit, homie,' and I'm like, 'Trust me, if that happens again, I will.' "
Defendant did not object to any of Hout's testimony about the confrontation.
The prosecutor also elicited testimony about defendant's previous driving during an exchange with Howard, the owner of the Civic that had been damaged:
"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 ."
(Emphases added.)
During her closing argument, the prosecutor told the jurors that they would be instructed about defendant's prior driving incidents, and that those incidents were relevant only to determine whether defendant "had the reckless intent, knowledge or recklessness when committing the crime" and could not be used "to say, well, he did it before and
"You may not consider the evidence of [defendant's] prior uncharged conduct-conduct of driving unless you first find that he committed the current charged crimes on or about November 7th, 2015. Then and only then may you consider the prior uncharged conduct to determine if [defendant] had the requisite intent, knowledge or recklessness when committing the charged crimes."
The jury ultimately acquitted defendant on the charge of failing to perform the duties of a driver, but it found him guilty on the remaining charges of unauthorized use of a vehicle, first-degree criminal mischief, and second-degree criminal mischief. The court entered a judgment of conviction on those guilty verdicts.
Defendant appeals that judgment, assigning error to the trial court's admission of (1) Peterson's and Hout's testimony about the previous incident in which defendant crashed over the curb and into a grassy area on the same street; (2) Hout's testimony about his confrontation with defendant after that incident; and (3) Howard's testimony that defendant had "blazed" out of the neighborhood before.
II. ANALYSIS
Defendant offers a combined argument on his various assignments of error, treating all of the challenged testimony alike under the general category of inadmissible "other acts evidence." As we will explain, not all of the testimony that defendant challenges is susceptible to that combined treatment, so we address the three categories of evidence separately.
A. Evidence of Previous Crash
Defendant's first and third assignments of error challenge the admissibility of Peterson's and Hout's testimony that defendant had previously crashed a vehicle while leaving Peterson's house after an argument with Walker. The trial court, after considering the similarities between the previous incident and the charged conduct, admitted the evidence to prove that defendant intentionally damaged
Defendant advances two arguments as to why the evidence of past conduct was not sufficiently similar to the charged conduct to be admissible under that theory. First, defendant argues that the past incident was an act of reckless driving, whereas first-degree criminal mischief requires proof that defendant intentionally damaged Walker's car; according to defendant, "[t]he fact that defendant drove recklessly through the neighborhood in the past, endangering children and pets, did not have a tendency to show that on the night of the [charged] incident, he got angry and intentionally drove into Walker's car." Second, defendant argues that only prior acts involving similar claims of accident are admissible under the doctrine of chances, and defendant never claimed that the earlier crash involved a similar malfunction of his vehicle.
Both of those arguments require us to revisit the principles underlying the doctrine of chances, and the type of similarity that satisfies that doctrine. In Johns , the court traced the roots of that theory of relevance to John Henry Wigmore: "Wigmore's logical relevance theory is based on improbability and demands proof of similarity."
"The doctrine teaches us that the more often the defendant performs the actus reus , the smaller is the likelihood that the defendant acted with an innocent state of mind. The recurrence or repetition of the act increases the likelihood of a mens rea or mind at fault. 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, unusualor objectively improbable to be believed. The coincidence becomes telling evidence of mens rea."
The nature of that intermediate inference-that the coincidence of events is objectively improbable-is what separates the doctrine of chances from character-based reasoning. "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."
In Johns , the court observed that legal commentators had split on the number of prior acts required to invoke the doctrine, with some concluding that, "to resort to the probability doctrine the proponent must have evidence of more than one prior similar instance of conduct," and others asserting that even a single similar act would have logical relevance on the issue of intent.
"Depending upon the circumstances of the case, sometimes one prior similar act will be sufficiently relevant for admissibility and sometimes not. A simple, unremarkable single instance of prior conduct probably will not qualify, but a complex act requiring several steps, particularlypremeditated, may well qualify . These decisions must be made case-by-case, with the trial judge first determining whether the evidence has any probative value under OEC 401 as applied to intent under OEC 404(3), then deciding whether the evidence has any prejudicial effect outweighing its probability under OEC 403. 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."
The court then announced a test that trial courts should employ before admitting evidence on a "doctrine of chances" theory:
"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?"
With the Johns framework in mind, we turn to the parties' arguments about the uncharged misconduct in this case, beginning with defendant's threshold contention that evidence of prior acts is logically relevant under the doctrine of chances only when the other acts similarly involve claims of accident or mistake. That view of the doctrine of chances is based on a footnote in our decision in State v. Tena ,
"Because the doctrine of chances is premised on the idea that it is unlikely that multiple instances of similar conduct will be the result of an innocent intent, evidence is logically relevant under the doctrine only when the other acts involve innocent intents . In other words, because the doctrine is based on the idea that recurring similar mistakes or accidents are increasingly unlikely, the doctrine supports the admission of other acts evidence only when the other acts were, or are claimed to have been, the product of a mistake or accident ."
What we described in that footnote was one application of the doctrine of chances-and the easiest one to distinguish from a propensity-based theory. In that application, the jury is asked to infer whether "the uncharged incidents are so numerous that it is objectively improbable that so many accidents would befall the accused." 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 ,
But Johns did not limit the doctrine of chances to circumstances in which the prior acts were claimed to have been accidents or mistakes. In fact, Johns itself involved the admission of a prior act that was undisputedly intentional . In Johns , the defendant was charged with murdering his spouse, and he claimed that he shot her by accident. To rebut that contention, the prosecution sought
In contrast to the application described in our footnote in Tena , the type of inferential reasoning permitted by Johns -that the defendant's similar attempt to murder a spouse on one previous occasion made it more likely that he formed the same mens rea on the charged occasion-is more difficult to distinguish from a propensity-based inference. Specifically, even if a previous occasion is probative evidence of a defendant's intent on a second occasion, it is not readily apparent how relying on the defendant's perceived intent on
It is an understatement to say that the line between propensity and nonpropensity inferences is difficult to discern under Oregon law. See Laird C. Kirkpatrick, Oregon Evidence , § 404.06(1), 218-19 (6th ed. 2013) (observing that the use of prior bad acts to prove intent "may be hard to distinguish" from using the evidence to show that "they had certain propensities and that they acted in accordance with those propensities on a particular occasion"). In State v. Davis ,
The problem is particularly stark in doctrine-of-chances cases, but it is hardly confined to that theory of relevance. To date, the Supreme Court has left open the question whether other-acts evidence that establishes a defendant's "sexual purpose" toward a minor victim is a propensity or nonpropensity theory, but it has suggested that it may be different from pure character evidence. See State v. Williams ,
Nonetheless, Johns endorsed a version of the doctrine of chances that looked to previously adjudicated conduct to prove intent, and the Supreme Court has never disavowed that application of it. In fact, the court's subsequent formulations of the doctrine have continued to focus on the inferences that can be drawn from previous intentional acts, without any suggestion that the doctrine is limited in the way that defendant or our dicta in Tena suggests. See, e.g. , Tena ,
Another line of criticism emphasizes the doctrine's inconsistent mathematical foundations. Although the "doctrine of chances" purports to be based on mathematical probabilities, courts have rarely insisted that the proponent of the evidence actually produce data to support the underlying assumptions about how often a particular event occurs. See 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 ,
Whatever the merits of that criticism, and whatever the lure of the conceptualization broached by our footnote in Tena ,
Defendant's alternative argument is that, accidental or not, the mental states between the charged act of first-degree criminal mischief and the prior act of reckless driving are not similar enough for the doctrine of chances to apply. That contention, too, is based on an overly restrictive view of the doctrine of chances as it has been applied in Oregon. As the Supreme Court has stated, "intent" under the doctrine of chances is not synonymous with "intent" or "intention" under Oregon's criminal code:
"Wigmore used the word 'intent' broadly. See Wigmore, 2 Evidence § 301 at 238. He explained that 'intent more frequently signifies * * * merely the absence of accident, inadvertence, or [causality]-a varying state of mind which is the contrary of an innocent state of mind.'Id. Accordingly, when Wigmore, and Johns in reliance on Wigmore, refers to the absence of mistake or accident as the equivalent of intent, it does not appear that either is using intent only in the limited sense that the Oregon criminal statutes use that term . Cf. ORS 161.085(7) (defining intentionally or with intent)."
Leistiko ,
With that understanding of "intent" under the doctrine of chances, we conclude that defendant's previous driving incident was sufficiently similar to the charged acts
In light of those similarities in the mental states, the settings, and the sequence of events, this case, like Johns , is not a case involving a "simple, unremarkable single instance" of prior conduct.
Moreover, on this record, we cannot say that the trial court erred when balancing the probative value of the evidence against the danger of unfair prejudice. As defendant observed in his jailhouse call, "no one was there" when he crashed into the victims' cars, so the state was required to prove his intent by circumstantial evidence. See Johns ,
B. Evidence of Confrontation with Hout
In his fourth assignment of error, defendant contends that the trial court erred in admitting Hout's testimony about his confrontation with defendant a couple of weeks after defendant crashed into the berm. Hout's testimony painted defendant as unremorseful (" 'What if I am?' " the one who crashed) and intimidating (" 'You don't know who you're F-ing with[.]' "). On appeal, defendant argues that the confrontation did not tell the jury anything about defendant's state of mind on the night of the charged incident and "tended to further establish that defendant was not only aware of the risks that his driving posed, but that he also did not care about those risks. *** [I]t served only to paint defendant in a bad light and show his 'disposition to do evil.' "
Defendant never made that argument below or, for that matter, objected at all to admission of the evidence of the confrontation between Hout and defendant. The first mention in the trial transcript of the confrontation occurred after the court ruled on the state's motion in limine , when defendant asked the court to revisit that ruling on the ground that Hout had not seen the driver involved. It was in that specific context, discussing the foundation for Hout's proffered testimony about defendant's driving, that the parties referenced the confrontation. There was no discussion at that time about whether Hout would be permitted to testify about the substance of the confrontation; the court simply adhered to its earlier ruling on the admissibility of the driving incident and expressed a willingness to revisit the
At trial, Hout testified without objection from defendant. Had defendant challenged the admissibility of testimony about
C. Evidence of Driving Habits Generally
Defendant's second assignment of error concerns the admission of testimony by Howard that defendant "blazed out of the neighborhood before." His first and third assignments also arguably encompass testimony by Peterson and Hout about defendant's reckless driving more generally, apart from the earlier incident in which he crashed over the curb and onto a grassy berm. To the extent that the court admitted evidence of defendant's general driving habits under the doctrine of chances, that was error; the record does not provide sufficient detail regarding the circumstances of other occasions of defendant's driving to satisfy Johns . However,
III. CONCLUSION
The trial court did not err in admitting evidence that defendant had similarly driven angrily and crashed a vehicle on the same street after a fight with his girlfriend, because that evidence tended to rebut his claim of accident based on his truck malfunctioning. We reject defendant's remaining claims of error on the ground that they are either unpreserved or fail to demonstrate prejudice. We, therefore, affirm the judgment of the trial court.
Affirmed.