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State v. White

Court of Appeals of Oregon

July 25, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
DANIEL DAVID WHITE, Defendant-Appellant.

          Submitted on remand August 30, 2017.

          Lane County Circuit Court 201411557; Charles M. Zennaché, Judge.

         On remand from the Oregon Supreme Court, State v. White, 361 Or. 800, 400 P.3d 923 (2017).

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Laura A. Frikert, Deputy Public Defender, Offce of Public Defense Services, fled the briefs for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Patrick M. Ebbett, Assistant Attorney General, fled the briefs for respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         This case, which was initially affirmed without opinion, is on remand from the Supreme Court for reconsideration in light of its decisions in State v. Mazziotti, 361 Or. 370, 393 P.3d 235 (2017), State v. Zavala, 361 Or. 377, 393 P.3d 230 (2017), and State v. Baughman, 361 Or. 386, 393 P.3d 1132 (2017). On remand, defendant argues that the trial court erred by admitting evidence of prior, uncharged acts of sexual abuse against the victim. According to defendant, in undertaking the balancing required by OEC 403, the trial court failed to appreciate that one of the theories of relevance on which it relied-that the evidence could explain the victim's delay in reporting the abuse-was actually a propensity theory that depended on inferences about defendant's character. Held: The trial court did not err in its assessment of the probative value of the evidence to explain the victim's delayed reporting. That evidence corroborated the victim's version of events through a nonpropensity inference: that the victim had not later fabricated the abuse but had delayed reporting it because of the circumstances surrounding the reporting of defendant's previous abuse.

         [293 Or.App. 63] LAGESEN, P. J.

         This case, which we initially affirmed without opinion, State v. White, 284 Or.App. 673, 393 P.3d 1206 (2017), comes to us on remand from the Supreme Court for reconsideration in light of its trilogy of cases involving OEC 403 balancing: State v. Mazziotti, 361 Or. 370, 393 P.3d 235 (2017); State v. Zavala, 361 Or. 377, 393 P.3d 230 (2017); and State v. Baughman, 361 Or. 386, 393 P.3d 1132 (2017). For the reasons that follow, after considering those cases, we adhere to our earlier decision to affirm.

         Defendant was convicted of various sexual offenses involving his girlfriend's minor daughter. He appealed and asserted that the trial court erred in admitting evidence of prior, uncharged acts of sexual abuse that he committed against the victim when the family was residing in California.[1] Defendant argued that, in undertaking the balancing required by OEC 403, the trial court had failed to appreciate that one or both of the theories of relevance on which it relied-(1) to show defendant's sexual predisposition toward the victim and (2) to explain the victim's delay in reporting the abuse-were actually propensity theories that depended on inferences about defendant's character. He relied on this court's decision in State v. Baughman, 276 Or.App. 754, 772, 369 P.3d 423 (2017), in which we had held that the trial court's OEC 403 balancing was based, in part, on an erroneous conclusion about the probative value of evidence that was "merely propensity by a different name."

         As noted above, in this case we initially affirmed without opinion. A month later, the Supreme Court issued [293 Or.App. 64] its opinion in Baughman, which affirmed our decision and held that "an argument that the evidence is admissible to bolster the victim's testimony is no more than a propensity argument by another name." 361 Or at 406. Defendant then petitioned the Supreme Court for review in this case, asserting that the trial court erred "by relying on propensity inferences to state the relevant value of the evidence-i.e., that the uncharged misconduct explained the victim's delay in reporting by bolstering her credibility and that the uncharged misconduct evidence made it more likely that defendant committed the charged offenses because of his 'sexual predisposition' toward the victim [.]" The Supreme Court allowed review, vacated our decision, and remanded the case to us for reconsideration in light of its decision in Baughman and its related decisions in Zavala and Mazziotti.

         In a supplemental brief on remand, defendant has now narrowed his argument, focusing solely on the trial court's assessment of the probative value of the evidence to explain the victim's delayed reporting.[2] The premise of that argument continues to be that "misconduct evidence that explains a delayed report because it bolsters the credibility of the complainant is properly considered propensity evidence. This is so because the relevance of the uncharged misconduct evidence to explain the delayed report rests on a propensity inference-that the complaint is credible because defendant acted consistently with his character to abuse her." (Emphasis by defendant.) But, defendant argues, the trial court erroneously treated the theory as a nonpro-pensity theory, which significantly affected the court's OEC 403 balancing. See, e.g., Baughman, 361 Or at 410 (explaining that a trial court's error in giving challenged evidence weight for nonpropensity purposes when it is not relevant for [293 Or.App. 65] those purposes may significantly affect the court's decision about whether to admit the evidence under OEC 403).

         Defendant is mistaken. Evidence of the other abuse perpetrated is neither per se propensity evidence nor per se relevant for a nonpropensity purpose. Determining the purpose or purposes for which evidence of other abuse may be relevant is a circumstance-dependent exercise, and the particular facts about other abuse may make evidence of that abuse relevant to a nonpropensity purpose when, for example, the evidence explains a fact of consequence-such ...


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