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State v. Davis

Court of Appeals of Oregon

February 14, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
THOMAS ALAN DAVIS, JR., Defendant-Appellant.

          Argued and submitted April 28, 2016.

         Washington County Circuit Court C131383CR; James Lee Fun, Jr., Judge.

          David O. Ferry, Deputy Public Defender, argued the cause for appellant. With him on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          David B. Thompson, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

         Case Summary: Defendant appeals a judgment of conviction for first-degree assault, first-degree kidnapping, and first-degree attempted sexual abuse. The charges arose after defendant tackled a female stranger while she was jogging and started to drag her from the sidewalk toward a brushy area. The victim fought defendant off until he fed the scene. During the attack, defendant did not say or do anything that was unmistakably sexual in nature. To establish that defendant acted with a sexual purpose, the state introduced, over defendant's objection, two notes that he had left on cars belonging to other female strangers prior to the attack, both of which expressed a desire to have anal intercourse with the recipients in a manner that would cause them pain. On appeal, defendant assigns error to the admission of that evidence, arguing that the notes were not relevant for a noncharacter purpose. Defendant also assigns error to the trial court's denial of his motion for a judgment of acquittal on the attempted sexual abuse count. Held: The trial court did not err by denying defendant's motion for a judgment of acquittal. A rational factfinder could logically infer that defendant [290 Or.App. 245] intended to sexually abuse the victim from the particular manner in which he perpetrated the attack. The trial court erred in admitting the notes under OEC 404(3) because they were not relevant as noncharacter evidence of defendant's motive. The circumstances surrounding the offense do not indicate any clear relationship between the attack and the content of the notes, and the logical relevance of the notes depended upon character-based reasoning, i.e., an inference that defendant had a persistent interest in sexually assaulting any female stranger.

         [290 Or.App. 246]GARRETT, J.

         Defendant appeals a judgment of conviction for first-degree kidnapping, first-degree attempted sexual abuse, and fourth-degree assault. The charges arose from an incident in which defendant attacked a woman while she was jogging and pushed her into a ditch; the victim fought him off and defendant left the scene. Although defendant did not say or do anything during the attack that unequivocally suggested a sexual purpose, the state alleged that defendant had intended to subject the victim to sexual contact. In support of that theory, the state offered evidence of two handwritten notes, both describing a desire to engage in violent sexual acts, that defendant wrote and left for two other women, also strangers to him. The trial court admitted that evidence over defendant's objection for the purpose of showing the sexual motive for defendant's attack on the victim. On appeal, defendant assigns error to that ruling. Defendant also assigns error to the trial court's denial of his motion for a judgment of acquittal (MJOA) on the attempted sexual abuse count, arguing that the record contained insufficient evidence to prove that he intended to sexually abuse the victim when he attacked her.

         We agree with defendant that the trial court erred by admitting the notes. As explained below, the two notes were not admissible as noncharacter evidence of "motive, " as that term is used in OEC 404(3). Rather, the logical relevance of the notes depends on a character-based inference, i.e., that defendant has a propensity to commit acts of sexual violence against female strangers. On appeal, the state argues that, even so understood, the evidence was admissible propensity evidence under OEC 404(4) and State v. Williams. 357 Or. 1, 346 P.3d 455 (2015). However, the state did not offer the notes as character evidence below, and we decline to consider that argument for the first time on appeal. Accordingly, we reverse and remand. With respect to defendant's second assignment of error, we conclude that the trial court did not err in denying his MJOA, and defendant is not entitled to outright reversal on the attempted sexual abuse count.

         [290 Or.App. 247] We review a trial court's determination that evidence is relevant for legal error, State v. Titus. 328 Or. 475, 481, 982 P.2d 1133 (1999), "in light of the record that was before the court at the time it made its decision, " State v. Jones. 285 Or.App. 680, 682, 398 P.3d 376 (2017). Because defendant appeals from a judgment of conviction, "we state the relevant background facts in the light most favorable to the state." State v. Woods. 284 Or.App. 559, 561, 393 P.3d 1188, rev den, 361 Or. 801 (2017).

         On December 27, 2012, the victim, M, went for a run near her home. She wore a jacket and jogging pants, and she listened to music while she ran. As she was running down the sidewalk, defendant tackled her from behind, and she blacked out. She could feel defendant "dragging" her, and when she became fully alert, she was face down in a shallow ditch near the sidewalk. The ditch was next to an area with tall grass, brush, and trees. M was able to flip her body over, and she began to fight defendant, who stood over her and held one of her hands down. Using her other hand, M tried to hit defendant and then shoved two of her fingers into his mouth. At that point, defendant stood up and ran away. As a result of the attack, M suffered abrasions, cuts, and an injury to her shoulder.

         Defendant was indicted on one count of first-degree kidnapping, ORS 163.235; one count of attempted first-degree sexual abuse, ORS 163.427 and 161.405; and one count of fourth-degree assault, ORS 163.160. With respect to the attempted sexual-abuse count, the state alleged that defendant "did unlawfully and intentionally attempt to subject [M] to sexual contact by means of forcible compulsion."

         M testified at trial that she could not identify her attacker. Defendant's theory of defense was that police had arrested the wrong person. Defendant also argued that, regardless of who attacked M, there was no evidence of any intent to subject M to sexual contact.

         The state presented no direct evidence of actual or attempted sexual contact. The state's theory was that the victim had fought defendant off before he could make his sexual purpose unmistakable. As circumstantial evidence of [290 Or.App. 248] defendant's intent during the assault, the state offered two notes that defendant had left on cars in two different Target parking lots. Both notes were left for women who defendant did not know. One of the notes was left on December 17, 2012, 10 days before the attack, and the other was left approximately two months earlier. The two notes are very similar: Both are written in the second person (using the words "you" and "your"), both graphically describe the women's bodies, and both express, in nearly identical terms, a desire to engage in anal intercourse with the women in a way that would cause them pain. It is undisputed that defendant wrote the notes; however, there is no evidence in the record that he ever approached or tried to make physical contact with either woman.

         At defendant's trial, the state offered the notes to prove that defendant's motive in attacking M was to subject her to forcible sexual contact. The state made clear that it was offering the notes "solely" to prove defendant's "intent, " explaining its need for the evidence as follows:

"The DNA evidence is very powerful and there's some corroboration that backs it up, so identity is going to be strong. But *** defendant's intent in terms of sexually assaulting [M], although some may think it's obvious, there really isn't any hard evidence of that. * * * [M] fought [defendant] so ferociously and so courageously that [defendant] didn't have a chance to get his hand actually on her breasts or genitalia or buttocks in a way that would allow us to definitively by his actions determine that he-and he didn't-likewise, he didn't utter any words to ...

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