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State v. Baughman

Supreme Court of Oregon

April 27, 2017

STATE OF OREGON, Petitioner on Review,
v.
RUSSELL ALLEN BAUGHMAN, Respondent on Review.

          Argued and Submitted November 14, 2016

          On review from the Court of Appeals (CC 111306; CA A152531). [*]

          Doug M. Petrina, Assistant Attorney General, Salem, argued the cause and fled the briefs for petitioner on review. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Kristin A. Carveth, Deputy Public Defender, Salem, argued the cause for respondent on review. Eric Johansen, Deputy Public Defender, fled the brief. Also on the brief was Ernest G. Lannet, Chief Defender, Offce of Public Defense Services.

          Before Balmer, Chief Justice, and Kistler, Walters, Landau, Brewer, and Nakamoto, Justices, and Baldwin, Senior Justice, Justice pro tempore. [**]

         The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings, consistently with this opinion.

          Case Summary: Defendant was convicted of child sexual abuse. Defendant appealed to the Court of Appeals and argued that the trial court had erred in admitting evidence of uncharged acts of abuse by defendant of the same victim and an additional victim. Defendant contended that OEC 404(4) requires "traditional" OEC 403 balancing, not a narrower, "due process" balancing, and that the trial court had not correctly conducted that balancing with respect to the challenged other acts evidence. The Court of Appeals agreed with defendant and reversed defendant's convictions and remanded the case for a new trial. The state petitioned for review, arguing that OEC 404(4) requires only due process balancing to determine whether the challenged evidence rendered the trial fundamentally unfair. In a unanimous opinion written by Justice Martha L. Walters, the Supreme Court affirmed the decision of the Court of Appeals. The Court held that, in a criminal action, when the state proffers evidence of uncharged acts, either to prove a defendant's propensity to commit charged crimes under OEC 404(4), or for a nonpropensity purpose under OEC 404(3), and a defendant objects to the admission of that evidence, the trial court must conduct balancing under OEC 403, according to its terms, to determine whether the probative value of the challenged evidence is substantially outweighed by the danger of unfair prejudice. The Court concluded that, in this case, the trial court erred in finding that defendant's abuse of the other victim was relevant for three non propensity purposes. The evidence was not relevant for any of the three purposes that the trial court identified, and the trial court therefore erred in assigning the evidence weight for those purposes in its OEC 403 balancing analysis. The Court remanded the case to the trial court to give that court the opportunity to consider new arguments from the parties about the purposes for which the other acts evidence is relevant and to correctly conduct the required balancing. The Court instructed the trial court to determine the nature of the proceedings that are necessary or appropriate on remand.

         The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings, consistently with this opinion.

          WALTERS, J.

         In this case we explain that, in a criminal action, when the state proffers evidence of uncharged acts, either to prove a defendant's propensity to commit charged crimes under OEC 4O4(4), [1] or for a nonpropensity purpose under OEC 4O4(3), [2] and a defendant objects to the admission of that evidence, the trial court must conduct balancing under OEC 403, [3] according to its terms, to determine whether the probative value of the challenged evidence is substantially outweighed by the danger of unfair prejudice. We affirm the decision of the Court of Appeals, State v. Baughman, 276 Or.App. 754, 369 P.3d 423 (2016), reverse the trial court's judgment of conviction, and remand this case to the trial court for further proceedings.

         I. BACKGROUND

         Defendant was charged with 12 counts of child sexual abuse. The state alleged that defendant had abused the victim, B, in Clatsop County.

         Before trial, the state filed a motion to permit it to introduce evidence that defendant also had sexually abused another child, A. The state argued that that evidence was relevant for a number of nonpropensity purposes under OEC 404(3)-to establish defendant's intent, motive, common plan or scheme, and the absence of mistake or accident. Defendant countered that, because his defense was not mistaken identity or lack of intent, but, instead, that the charged acts of abuse had not occurred, the proffered evidence was not relevant for a nonpropensity purpose. Further, defendant argued, even if the evidence was minimally relevant, its probative value was substantially outweighed by the danger of unfair prejudice and it was therefore inadmissible under OEC 403.

         Both A and B testified at the hearing on the state's motion. B testified that, when she was about five years old, defendant had entered into a relationship with her mother and moved into their family home in Umatilla County. Defendant began to sexually abuse B when she was seven years old and still living in Umatilla County. The abuse began with sexual touching, and, by the time B was 12 and living in Clatsop County, defendant had begun to abuse her "over and over again [, ] repeatedly." B testified that defendant had touched her sexually, forced her to touch him sexually, and, in Clatsop County, repeatedly had forced her to have intercourse with him.

         A, the second child, testified that defendant's abuse of her also had occurred while defendant was in a relationship with her mother and living with them in their family home. A was in fifth grade when the abuse began. The abuse, including the sexual touching of both defendant's and As sexual or intimate parts, had continued until she was 13 or 14 years old.

         After the hearing, the trial court issued a letter opinion. The court agreed with the state that defendant's abuse of A was relevant to prove defendant's "identity, intent and to bolster the credibility of the victim, " and was admissible under OEC 404(3). With respect to the issue of intent, the court explained that it had conducted an analysis under State v. Johns, 301 Or 535, 555-56, 725 P.2d 312 (1986), and determined, among other things, that defendant's acts against A were similar to his acts against B, and that the evidence about A was being offered for a nonpropensity purpose, was not "overly inflammatory, " and could be presented without undue confusion, distraction, or unreasonable delay.

         Later, but also before trial, the state filed a written motion to permit it to introduce evidence of defendant's uncharged acts of sexual abuse against B in Umatilla County. The state asserted that that evidence would "allow the jury to see a clear, cohesive picture of how defendant perpetuated the abuse for which he ha[d] been indicted in Clatsop County." That evidence, the state represented, included the acts of abuse to which B had testified at the prior hearing and also the fact that defendant had told B that, if she ever told anyone about the abuse, he would hurt her, and that he had been physically abusive to her.

         Defendant opposed the state's motion and asserted that it was untimely and required a hearing. The trial court responded that it had assumed, from the prior hearing, that the evidence of the uncharged abuse of B would be admitted to explain to the jury "the path leading up to" the charged crimes, but that the evidence also was admissible for the same reasons that the court had articulated in permitting the evidence of defendant's abuse of A.

         At trial, both A and B testified consistently with their pretrial testimony. At the close of evidence, the court instructed the jury that it could consider the uncharged abuse of A only as evidence of defendant's intent in abusing B. The court did not give the jury a limiting instruction regarding the purposes for which it could consider the uncharged abuse of B.

         The jury convicted defendant of eight of the 12 charges. Defendant appealed to the Court of Appeals and argued that the trial court had erred in admitting the evidence of the uncharged abuse of both A and B as nonpropen-sity evidence under OEC 404(3). While the case was pending before that court, this court decided State v. Williams. 357 Or 1, 346 P.3d 455 (2015).

         In Williams, this court considered the interplay between three evidentiary rules: OEC 404(3), OEC 404(4), and OEC 403. OEC 404(3) makes other acts evidence inadmissible to prove a defendant's character or propensity to commit the charged crime. It 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."

OEC 404(3).

         OEC 404(4) was enacted after OEC 404(3). It makes relevant other acts evidence admissible in criminal actions, subject to specified exceptions. It 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."

OEC 404(4).

         In Williams, the court recognized the conflict between those two rules and held that the "legislature intended OEC 404(4) to supersede OEC 404(3) in criminal cases, " and to permit the admission of other acts evidence to prove a defendant's propensity to commit a charged crime of sexual abuse. 357 Or at 15. The court also concluded, however, that OEC 4O4(4)(a) made the admission of such evidence subject to specified evidentiary rules, including OEC 403. Id. at 19. OEC 403 permits a court to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. It provides:

"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 403. In Williams, the court reasoned that OEC 4O4(4)(a) made OEC 403 applicable "to the extent required by the United States Constitution, " and concluded that, "in a prosecution for child sexual abuse, the [United States Supreme] Court would hold that subjecting proffered 'other acts' evidence to OEC 403 balancing is a due process requirement." Id. at 15-18. That balancing, the court explained, was balancing to "determine whether the probative value of the evidence is outweighed by the risk of unfair prejudice." Id. at 19. The court expressly reserved, however, the question whether the required balancing was "traditional, " or "sub-constitutional, " OEC 403 balancing, or some other, more limited, "due process" balancing. Id. at 19 n 17.[4]

         In light of this court's decision in Williams, the parties in this case filed supplemental briefs in the Court of Appeals. Considering OEC 404(4) to be the operative evidentiary rule, the parties squared off about whether the balancing that OEC 404(4) requires is "traditional" balancing under OEC 403, or "due process" balancing, requiring the exclusion of other acts evidence only when its admission would render the trial fundamentally unfair and thereby violate due process.

         The Court of Appeals agreed with defendant that OEC 404(4) requires "traditional" OEC 403 balancing and then took up the legal issue that defendant had raised in his initial opening brief about whether the trial court had correctly conducted that balancing. Baughman, 276 Or.App. at 764-65. As noted, the trial court had considered the uncharged abuse of A to be relevant for three nonpropen-sity purposes and had carried out the required balancing with those purposes in mind. The Court of Appeals determined that the challenged evidence was relevant for only one of those purposes-to prove defendant's intent under the Johns analysis-but not for the other two purposes-to prove identity and to bolster the victim's credibility.[5] Id. at 771. The court reasoned that evidence of defendant's uncharged acts was not sufficiently novel or unique to be relevant to identity, id. at 768, and that "the purpose of bolstering the victim's credibility is merely propensity by a different name, " id. at 772. Therefore, the court explained, the trial court had not correctly considered the "quantum of probative value of the evidence" when it conducted the required balancing under OEC 403 and had erred in admitting the other acts evidence. Id. (internal quotation marks omitted). The Court of Appeals reversed defendant's convictions and remanded the case for a new trial. Id.

         The state petitioned for review in this court, renewing its argument that the Court of Appeals was required to review the trial court's admission of the challenged evidence, not to determine whether the trial court had correctly engaged in "traditional" balancing under OEC 403, but, instead, to determine whether the admission of that evidence rendered the trial fundamentally unfair and thereby violated due process. The state also asserted that, even if traditional balancing was ...


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