STATE OF OREGON, Petitioner on Review, v. SHAWN GARY WILLIAMS, Respondent on Review.
CC 08CR0707; CA A145644; SC S061769
Supreme Court of Oregon
March 19, 2015
346 P.3d 455
WALTERS, J.
Argued and submitted June 23, 2014, decision of Court of Appeals reversed, and case remanded to Court of Appeals for consideration of defendant‘s remaining assignments of error March 19, 2015
Kristin A. Carveth, Deputy Public Defender, Salem, argued the cause and filed the brief for respondent on review. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Defendant was charged with two counts of first-degree sexual abuse for conduct involving a five-year-old child. The state offered evidence that defendant possessed two pairs of children‘s underwear at the time that he committed the charged acts. Defendant opposed the admission of the evidence as irrelevant under Oregon Evidence Code (OEC) 4011 and unfairly prejudicial under OEC 403.2 The trial court admitted the evidence under OEC 404(3)3 to show that defendant had touched the victim with a sexual purpose rather than accidentally. A jury convicted defendant on both counts. The Court of Appeals reversed, holding that the underwear evidence was not logically relevant to any disputed issue and thus was inadmissible under OEC 401. State v. Williams, 258 Or App 106, 308 P3d 330 (2013). The state petitioned for review, which we allowed to determine whether the evidence was admissible under OEC 401, OEC 403, or OEC 404. We conclude that the trial court did not err in admitting the underwear evidence, and we reverse the decision of the Court of Appeals.
The state charged defendant with two acts of sexual abuse: putting his hand down the underwear of the five-year-old victim and touching her vaginal area, and causing the victim to touch defendant‘s clothed penis. Defendant denied committing either act. During a police interview, defendant admitted that it was possible that he inadvertently could have touched the victim‘s genital area on three occasions:
The state sought to introduce two pairs of children‘s underwear that defendant‘s landlord had found in defendant‘s residence after defendant vacated the property. Defendant‘s landlord testified that one pair of underwear was between the mattress and box spring on defendant‘s bed and another pair was in a duffel bag. Defendant testified that he did not know where the underwear had come from, but that a female friend and her two young children had spent the weekend at his residence and they possibly had left the underwear behind on that occasion.
Defendant objected to the admission of the underwear evidence, arguing that the evidence did not establish that the underwear was in his possession. He further argued that the underwear was irrelevant to any material issue and that, even if relevant, the evidence was offered only to suggest that defendant had “a problem with little girls“—i.e., that he was a pedophile—and that he acted in conformity with that character in touching the victim in this case. Therefore, defendant asserted, the evidence was unfairly prejudicial and inadmissible under OEC 403.
The state responded that the evidence was not unfairly prejudicial and was admissible under OEC 404(3) to show that defendant had touched the victim with a sexual purpose rather than accidentally. The trial court agreed and admitted the evidence under OEC 404(3). The jury convicted defendant of two counts of first-degree sexual abuse.
Defendant appealed, and the Court of Appeals reversed, holding that OEC 403 and OEC 404(3) apply to only evidence that is logically relevant under OEC 401, and that the underwear evidence was not relevant to a “contested issue in the case.” Williams, 258 Or App at 112-13.
Before this court, the state contends that we need not decide whether the underwear evidence was admissible under OEC 404(3) to demonstrate defendant‘s sexual purpose. The state argues that, in criminal cases, OEC 404(4) supersedes OEC 404(3) and makes relevant “other acts” evidence admissible for all purposes. OEC 404(4) provides:
“In criminal actions, evidence of other crimes, wrongs or acts by the defendant is admissible if relevant except as otherwise provided by:
“(a) [OEC 406 through 412] and, to the extent required by the United States Constitution or the Oregon Constitution, [OEC 403];
“(b) The rules of evidence relating to privilege and hearsay;
“(c) The Oregon Constitution; and
“(d) The United States Constitution.”
The legislature enacted OEC 404(4) in 1997. Or Laws 1997, ch 313, § 29. Before that date, a court‘s analysis of the admissibility of relevant “other acts” evidence in a criminal case began with OEC 404(3), which provides:
“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.”
See State v. Johns, 301 Or 535, 549-50, 725 P2d 312 (1986) (considering OEC 404(3) as first step in analysis). If the evidence was admissible for a nonpropensity purpose
“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence.”
OEC 404(3) represents “a specific application of OEC 403.” Pinnell, 311 Or at 106. The purpose of both rules is to exclude evidence that may be unfairly prejudicial to the accused:
“Bad character evidence (such as other crimes by the accused) is excluded under the propensity rule [of OEC 404(3)], not because it is irrelevant, but because of the risk of unfair prejudice to the accused. The propensity rule‘s general prohibition of bad character evidence, codified in OEC 404(2) and OEC 404(3), is a specific application of OEC 403. The theory is that the risk that the jury will convict for crimes other than those charged, or because the accused deserves punishment for his past misdeeds, outweighs the probative value of the inference that ‘he‘s done it before, he‘s done or will do it again.’ *** Another reason for the propensity rule in criminal cases is that it is viewed as unfair to require an accused to be prepared not only to defend against the immediate charge, but also to defend or explain away unrelated acts from the past. Additionally, courts are concerned with 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.”
Id. at 105-07 (internal citations and footnotes omitted).
In this case, however, the state argues for a different analytical paradigm. The state contends that, in criminal cases, OEC 404(4) now supersedes OEC 404(3), and
Defendant responds that the state is arguing that, in criminal cases, OEC 404(4) permits the admission of “other acts” evidence for all purposes, including for the sole purpose of establishing a defendant‘s character and propensity to act accordingly. He contends that, under the state‘s construction, OEC 404(4) would abrogate both OEC 404(3) and “traditional” balancing under OEC 403. Defendant argues that the legislature did not intend that result and that the federal constitution precludes it. In defendant‘s view, the underwear evidence proffered by the state is relevant only to establish his character as a pedophile, and it therefore must be excluded under OEC 401, OEC 404(3), OEC 403, and the principles of due process.
We begin our analysis of the parties’ arguments with a discussion of the common-law origins of the evidentiary rules precluding or limiting the admission of “other acts” evidence to establish propensity and the extent to which those rules are required by due process. See Stevens v. Czerniak, 336 Or 392, 401, 84 P3d 140 (2004) (for purposes of statutory interpretation, context includes preexisting law). We then return to the text of OEC 404(4) to consider whether it supersedes OEC 404(3) or abrogates or modifies the balancing required by OEC 403.
Courts have excluded “other acts” evidence when offered to show propensity since the late seventeenth century. David P. Leonard, The New Wigmore, A Treatise on Evidence: Evidence of Other Misconduct and Similar Events § 1.2, 2 (2009) (“One of the oldest principles of Anglo-American law is that a person ‘should not be judged strenuously by reference to the awesome spectre of his past life.’ “) (quoting M.C. Slough & J. William Knightly, Other Vices, Other Crimes, 41 Iowa L Rev 325, 325 (1956)); see also 1 John H. Wigmore, Evidence in Trials at Common Law § 57, 127 (1st ed 1904) (“Our rule, then, firmly and universally established in policy and tradition, is that the prosecution may not initially attack the defendant‘s character.“). Historians of evidence law frequently cite two seventeenth-century English cases for the origins of that rule: Hampden‘s Trial, 9 How St Tr 1053 (KB 1684), and Harrison‘s Trial, 12 How St Tr 833 (Old Bailey 1692). See 1 Wigmore, Evidence § 216 at 265 (discussing cases); Leonard, New Wigmore § 1.2 at 8 (same). Samuel March Phillipps, the author of one of the earliest English treatises on evidence and one of the first works on the law of evidence published in the United States, also cited an 1810 case, Rex v. Cole, for the proposition that
“[i]t would not be allowable to shew, on the trial of an indictment, that the prisoner has a general disposition to commit the same kind of offence as that charged against him. Thus, in a prosecution for an infamous crime, an admission by the prisoner that he had committed such an offence at another time and with another person, and that he had a tendency to such practice, ought not to be admitted.”
Samuel March Phillipps, A Treatise on the Law of Evidence (1814) (cited in Leonard, New Wigmore § 2.2 at 21).
In 1892, the United States Supreme Court relied on the common law to decide that evidence of the defendants’ prior robberies was inadmissible in a trial for murder committed during a robbery, stating:
“Proof of [the robberies] only tended to prejudice the defendants with the jurors, to draw their minds away from the real issue, and to produce the impression that they were wretches whose lives were of no value to the community, and who were not entitled to the full benefit of the rules prescribed by law for the trial of human beings
charged with crime involving the punishment of death. *** However depraved in character, and however full of crime their past lives may have been, the defendants were entitled to be tried upon competent evidence, and only for the offence charged.”
Boyd v. United States, 142 US 450, 458, 12 S Ct 292, 35 L Ed 1077 (1892). One year later, the Oregon Supreme Court also condemned the admission of evidence of a defendant‘s prior crimes to prove that the defendant had acted accordingly in the charged circumstances. State v. Baker, 23 Or 441, 442-43, 32 P 161 (1893). In Baker, the court explained that “no enlightened system of justice” would permit the admission of such evidence:
“The 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. Such evidence tends to mislead the jury, creates a prejudice against the prisoner, and requires him to answer a charge for the defense of which he is not supposed to have made preparation. And while, as Lord Campbell says, ‘it would be evidence to prove that the prisoner is a very bad man, and likely to commit such an offense’ (Reg. v. Oddy, 5 Cox C. C. 210), under no enlightened system of jurisp[r]udence can a person be convicted of one crime on proof that he has committed another.”
Id.; accord State v. Saunders, 14 Or 300, 309, 12 P 441 (1886); State v. Martin, 47 Or 282, 285, 83 P 849 (1906). By 1948, that view was widespread. Michelson v. United States, 335 US 469, 475-76, 69 S Ct 213, 93 L Ed 168 (1948). As the United States Supreme Court explained, “[c]ourts 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 guilt.” Id. at 475.
When state and federal jurisdictions adopted rules of evidence, those rules often reflected that common-law tradition and precluded the admission of “other acts” to prove propensity. In Oregon, OEC 404(3) and its predecessor statutes have long provided that “other acts” evidence “is not admissible to prove the character of a person in order to show that the person acted in conformity therewith,” but is
“(1) *** Evidence of a crime, wrong, or other act is not admissible to prove a person‘s character in order to show that on a particular occasion the person acted in accordance with the character.
“(2) *** This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
FRE 404(b).5
After the adoption of the Federal Rules of Evidence, federal courts generally looked to the text of those rules rather than to the common law or to the federal constitution to determine the admissibility of “other acts” evidence.6 That changed, however, as to cases in which a defendant is charged with sexual assault or child molestation, when Congress adopted FRE 413 and 414 in 1994. Pub L No 103-322, § 320935, 108 Stat 2135 (1994).7 Because those rules permit the admission of relevant “other acts” evidence in such cases, federal courts were asked to interpret those rules and determine whether they supersede FRE 404(b),
Federal circuit courts that have considered the matter have held that Congress intended that FRE 413 and 414 supersede FRE 404(b).9 2 J.B. Weinstein & M.A. Berger, Weinstein‘s Federal Evidence § 413.04, at 413-10 to -11 (J.M. McLaughlin ed., 2d ed 2010). In addition, federal circuit courts that have considered the matter have decided that evidence admitted under FRE 413 and 414 remains subject to balancing under FRE 403 and that those rules do not violate the Due Process Clause.10 Christopher B. Mueller
The United States Supreme Court used similar reasoning in a 1990 case. In Dowling v. United States, 493 US 342, 352-53, 110 S Ct 668, 107 L Ed 2d 708 (1990), the defendant argued that the admission of “other acts” evidence to prove identity under FRE 404(b) violated his right to due process because it created a constitutionally unacceptable risk that the jury would convict him on an improper basis. The Court disagreed, concluding that “the trial court‘s authority to exclude potentially prejudicial evidence adequately addresses this possibility.” Id. at 353.
That historical background is helpful, but it does not resolve the question before us: Whether OEC 404(4) is subject to OEC 404(3) or OEC 403. For that question, we return to the text of OEC 404(4), and the state‘s first argument, which is that that rule supersedes OEC 404(3). Again, OEC 404(4) provides:
“In criminal actions, evidence of other crimes, wrongs or acts by the defendant is admissible if relevant except as otherwise provided by:
“(a) [OEC 406 through 41211] and, to the extent required by the United States Constitution or the Oregon Constitution, [OEC 403];
“(b) The rules of evidence relating to privilege and hearsay;
“(c) The Oregon Constitution; and
“(d) The United States Constitution.”
The state contends that OEC 404(3) is not an exception to the admissibility of evidence under OEC 404(4) and, in addition, because the two rules conflict, OEC 404(3) must give way. See Carlson v. Myers, 327 Or 213, 235, 959 P2d 31 (1998) (“Ordinarily, if the legislature enacts a statutory requirement that conflicts with another earlier-enacted statutory requirement, and the conflict is irreconcilable, the earlier statute must yield to the later statute.“); see also
Defendant responds that OEC 404(4) and OEC 404(3) can be read together and do not conflict. Defendant contends “other acts” evidence is not relevant under OEC 404(4) unless it is relevant for a permissible purpose and that OEC 404(3) sets out those permissible purposes.
Considering the text and context of those two rules, the state has the better argument. First, the legislature explicitly made OEC 404(4) subject to certain specified rules of evidence; by contrast, the legislature did not explicitly make OEC 404(4) subject to OEC 404(3). Second, contrary to defendant‘s argument, OEC 404(4) and 404(3) are in conflict. OEC 404(3) does not provide that “other acts” evidence is irrelevant; instead, it provides that “other acts” evidence is inadmissible to prove propensity. Those concepts are distinct. OEC 401 defines “relevant” evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be
The legislative history of the enactment of OEC 404(4) supports that understanding. The legislature enacted OEC 404(4) in 1997 in response to this court‘s anticipated invalidation of Ballot Measure 40 (1996), which, among other provisions, provided crime victims with “the right to have all relevant evidence admitted against criminal defendants.” See Armatta v. Kitzhaber, 327 Or 250, 254, 959 P2d 49 (1998) (citing Measure 40, § 1(f)).12 The legislature introduced Senate Bill (SB) 936 as a “legislative paraphrase of selected provisions” of Measure 40 that did not require amendment of the Oregon Constitution. State v. Fugate, 332 Or 195, 199, 26 P3d 802 (2001). Two sections of SB 936 related to the concern addressed in section 1(f) of Measure 40, which would have permitted “all relevant evidence [to be] admitted against criminal defendants.” Section 1 of SB 936 prohibited trial courts from suppressing evidence obtained through statutory (rather than constitutional) violations,13
We reach a different conclusion with respect to the relationship between OEC 404(4) and OEC 403, however. As noted, the Oregon Legislative Assembly adopted OEC 404(4) in 1997, just three years after Congress had adopted FRE 413 and 414. At that time, questions about whether evidence proffered under FRE 413 and 414 was subject to balancing under FRE 403 and whether those rules violated the Due Process Clause were pending in the lower federal courts. The Oregon Legislative Assembly recognized the unsettled state of the law by expressly making OEC 404(4) subject to OEC 403 “to the extent required by the United States
To date, the United States Supreme Court has not addressed that issue. The Court has explicitly reserved the question whether an evidentiary rule would violate due
We know that “historical practice” is the primary guide for determining whether an evidentiary rule is so fundamental as to be embodied in the federal constitution. See Montana v. Egelhoff, 518 US 37, 43-44, 116 S Ct 2013, 135 L Ed 2d 361 (1996) (“Our primary guide in determining whether the principle in question is fundamental is, of course, historical practice.“). In LeMay, the Ninth Circuit considered the “historical practice” prohibiting the use of “other acts” to prove the charged crime and concluded that “the general ban on propensity evidence has the requisite historical pedigree to qualify for constitutional status.” 260 F3d at 1025. If this were a case in which defendant had been charged with crimes other than child sexual abuse, we might be persuaded that due process incorporates that historical practice and therefore not only requires the application of OEC 403, but also precludes the admission of “other acts” evidence to prove propensity. However, in this case, defendant is charged with child sexual abuse, and the historical practice with respect to such charges is not as clear.16
In that regard, the Supreme Court has explained that the admission of evidence that is so extremely unfair that it violates “fundamental conceptions of justice” violates the Due Process Clause. United States v. Lovasco, 431 US 783, 790, 97 S Ct 2044, 52 L Ed 2d 752 (1977). The Supreme Court also has explained that “[t]he term ‘unfair prejudice,’ as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.” Old Chief v. United States, 519 US 172, 180, 117 S Ct 644, 136 L Ed 2d 574 (1997). In Old Chief, the Court recognized that such improper grounds include “generalizing a defendant‘s earlier bad act into bad character and taking that as raising the odds that he did the later bad act now charged.” Id. Although the Court was not deciding a constitutional issue in Old Chief, its discussion demonstrates how the Court characterizes the prejudice posed by “other acts” evidence. As the Court recognized in Dowling, 493 US at 352, the violation of due process that may result from such unfair prejudice is obviated by the application of a rule of evidence that permits a court to consider the risk of prejudice and exclude the evidence when appropriate.
In the absence of controlling Supreme Court precedent, we must determine, as best we can, how that Court would rule if presented with the question before us. We conclude that, in a prosecution for child sexual abuse, the Court would hold that subjecting proffered “other acts” evidence to OEC 403 balancing is a due process requirement. In such prosecutions, the historical record may not definitively establish that it is always improper to admit “other acts” evidence to prove propensity, but it at least demonstrates a historical concern for the prejudice that such evidence poses and the importance that balancing plays in protecting against the harm that may result from its admission. In our view, the only way that a court can ensure that the admission of “other acts” evidence is not unfairly prejudicial and a violation of “fundamental conceptions of justice” is to conduct OEC 403 balancing. We therefore hold that that balancing
Consequently, the admission of evidence under OEC 404(4) remains subject to balancing under OEC 403.18 When a party objects, under OEC 403, to “other acts” evidence offered under OEC 404(4), a trial court must engage in the balancing anticipated by OEC 403. At one end of the spectrum, “other acts” evidence that is offered for nonpropensity purposes—i.e., to prove motive, intent, identity, or lack of mistake or accident—generally will be admissible as long as the particular facts of the case do not demonstrate a risk of unfair prejudice that outweighs the probative value of the evidence. Shaw, 338 Or at 614-15. At the other end
OEC 404(4) nevertheless effects a significant change in the law. Before the legislature enacted OEC 404(4), “other acts” evidence offered to prove a defendant‘s character and propensity to act accordingly was categorically inadmissible under OEC 404(3). That is no longer the rule. Now, in a prosecution for child sexual abuse, the admission of “other acts” evidence to prove character and propensity under OEC 404(4) depends on whether the risk of unfair prejudice outweighs the probative value of the evidence under OEC 403.19 That determination must be made on a case-by-case basis. See, e.g., LeMay, 260 F3d at 1028 (setting out list of nonexclusive factors that trial courts may consider in weighing the risk of prejudice presented by “other acts” evidence offered under FRE 413 and 414).
In this case, the trial court considered the admissibility of the underwear evidence under both OEC 401 and 403. That mode of analysis was correct under OEC 404(4). As explained, OEC 404(4) makes “other acts” evidence admissible if it is relevant under OEC 401 and admissible under OEC 403.
At trial, the state argued that the disputed evidence was both relevant and admissible to show that defendant had touched the victim with a sexual purpose, and the trial court admitted the evidence. Defendant appealed, and the Court of Appeals decided that the trial court had erred because the underwear evidence was not logically relevant under OEC 401. 258 Or App at 112-13. The court opined that OEC 401 requires courts to determine whether evidence is “logically relevant to a contested issue” (emphasis added) and that defendant‘s intent was not truly at issue in the case. Id.
On review in this court, the state contends that the Court of Appeals stated the relevance requirement of OEC 401 too strictly, and we agree. OEC 401 makes proffered evidence admissible only if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” In this case, to prove that defendant committed first-degree sexual abuse,
In State v. Sparks, 336 Or 298, 308, 83 P3d 304 (2004), the court held that the defendant‘s proposed stipulation to an element of the crime “did not have the effect of making otherwise relevant evidence irrelevant,” but provided “an alternate form of proof.” The court cited Laird C.
We turn to that question. The state argues that the underwear evidence meets that test of logical relevance because a jury reasonably could infer that defendant‘s possession of the underwear indicates that defendant has “a sexual interest in little girls” and that defendant had acted from that interest when he touched the victim.
At trial, defendant argued that the underwear that was found in his residence likely had been left behind by a friend with two small children when she and the children spent the night. Defendant also disputed the state‘s argument that the underwear had an inherently “sexual meaning” and argued that the state‘s submission of the underwear “suggest[ed] an inference based on very misleading information.” On review, however, defendant does not explicitly press those arguments or contend that a jury could not infer from the presence of the children‘s underwear that defendant had a sexual interest in children. Instead, defendant argues that there is no difference between asserting that defendant had a “sexual interest in little girls” and
In this case, there is a slim but distinct difference between using the underwear evidence to establish defendant‘s character and propensity to act accordingly, and offering that evidence to establish defendant‘s sexual purpose. First, in this case, defendant‘s sexual purpose is an element of the charged crimes. The state did not offer the evidence to establish that defendant committed the charged acts; it offered the evidence to prove an element of the charged crimes—defendant‘s sexual purpose. Second, the state was required to prove that defendant had acted with a sexual desire that was aroused or gratified by contact with children. Because most adults do not have such a desire, the state was entitled to prove that defendant is an adult who does. The fact that defendant has a sexual interest in children would not, alone, establish that defendant acted on that interest in the charged circumstances, but it is a fact that is logically relevant to that issue.
If the jury inferred from the underwear evidence that defendant had a sexual interest in children generally, then the jury could take defendant‘s interest into consideration in deciding whether defendant had acted on that interest and with that purpose on the charged occasion. Defendant is correct that, if the jury found that defendant had committed the charged acts, those acts themselves are additional, and perhaps more persuasive, evidence of defendant‘s sexual purpose. However, as noted, that stronger evidence does not make the underwear evidence logically irrelevant; the evidence meets the minimal requirements of OEC 401.
At trial, after determining that the underwear evidence was relevant under OEC 401, the trial court conducted the balancing required by OEC 403 and concluded that the evidence was admissible. Defendant does not contend that the trial court erred in its OEC 403 analysis, and we therefore do not consider that issue on review.
In summary, we conclude that OEC 404(4) supersedes OEC 404(3) in a criminal case except to the extent required by the state or federal constitution. In a prosecution of child sexual abuse, the federal constitution requires that a trial court determine whether the risk of unfair prejudice posed by the evidence outweighs its probative value under OEC 403. In this case, the trial court did not err in admitting the underwear evidence.
As noted, because it concluded that the trial court had erred in admitting the underwear evidence, the Court of Appeals reversed the judgment of conviction and remanded for a new trial. Williams, 258 Or App at 117. The Court of Appeals therefore did not address three additional assignments of error that defendant had raised on appeal. See id. We reverse the decision of the Court of Appeals and remand the case to that court for consideration of those remaining assignments of error.
The decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for consideration of defendant‘s remaining assignments of error.