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State v. Cave

Court of Appeals of Oregon

June 12, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
JACK ALLEN CAVE, Defendant-Appellant.

          Argued and submitted October 4, 2018

          Deschutes County Circuit Court 15FE0090; A. Michael Adler, Judge.

          Thaddeus Betz argued the cause and fled the brief for appellant.

          Peenesh Shah, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge. [*]

         Reversed and remanded. [298 Or.App.31]

         Case Summary: Defendant appeals a judgment of conviction for two counts of first-degree sexual abuse, four counts of frst-degree rape, and two counts of first-degree sodomy for crimes committed against his two minor granddaughters. Defendant assigns error to the admission of evidence that defendant sexually abused his daughter when she was a child as relevant to show defendant's sexual purpose, plan, opportunity, absence of mistake, and motive with regard to the charged offenses. Defendant contends that the trial court erred as a matter of law under State v. Baughman, 361 Or. 386, 393 P.3d 1132 (2017), when it combined the propensity and non-propensity theories of relevance to balance the probative value of the evidence and risk of unfair prejudice under OEC 403. Defendant also argues that the trial court erred in ruling the evidence was relevant for each non-propensity theory of relevance under OEC 404(3) and in ruling that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice under OEC 403. Held: The trial court erred in concluding that the evidence was relevant for the non-propensity theories of plan, opportunity, absence of mistake, and motive. Therefore, because the trial court combined the non-propensity and propensity theories of relevance when it conducted OEC 403 balancing, that balancing was flawed and required a limited remand to conduct the proper balancing.

         [298 Or. App.32] ORTEGA, P. J.

         Defendant appeals a judgment of conviction for two counts of first-degree sexual abuse, four counts of first-degree rape, and two counts of first-degree sodomy involving his two minor granddaughters. We reject his second assignment of error without discussion, and write to address defendant's first assignment of error, in which he argues that the trial court erred in admitting the testimony of his adult daughter that he sexually abused her when she was a child. Defendant contends that the trial court erred as a matter of law when it failed to analyze the admissibility of that evidence under the framework prescribed in State v. Baughman, 361 Or. 386, 393 P.3d 1132 (2017), a failure that then impacted the OEC 403 balancing. Defendant also argues that the trial court erred in admitting the evidence of the uncharged acts for several nonpropensity purposes under OEC 404(3) and in finding that the probative value of the evidence substantially outweighed the danger of unfair prejudice under OEC 403.[1]

         On appeal, the state defends the trial court's admission of the evidence on one theory, to show defendant's sexual purpose in committing the charged acts, which it characterizes as a nonpropensity theory.[2] Therefore, even assuming [298 Or. App.33] the trial court erred in failing to follow the Baughman framework, the state urges us to affirm because nonpropensity evidence is generally admissible under State v. Williams, 357 Or. 1, 346 P.3d 445 (2015). We agree with defendant that the trial court erred when it failed to first assess the probative value of the evidence as nonpropensity evidence under OEC 404(3) and OEC 403 and then turn to its admissibility as propensity evidence under OEC 404(4) and OEC 403 only if it was inadmissible under OEC 404(3). Accordingly, we reverse and remand for the trial court to follow the framework outlined in Baughman.

         BACKGROUND

         Defendant was charged with crimes committed against his granddaughters MB and LB. Two of the counts involved first degree sexual abuse based on allegations that defendant touched MB's vagina. Four of the counts alleged first-degree rape for sexual penetration of LB, and two of the counts alleged first-degree sodomy for deviate sexual penetration of LB. All counts were alleged to be separate criminal acts.

         Before trial, defendant filed a written motion to exclude the expected testimony by his daughter, JB (who is also LB's mother) that defendant had sexually abused her in childhood. As ultimately allowed by the trial court, JB later testified that, when she was between 8 and 14 years old, defendant touched her breasts a number of times, touched her vagina one time, and put his penis in her mouth one time. She said that this occurred in the living room and in her parents' bedroom when her siblings were likely in their bedroom and her mother was at work. Defendant argued that JB's proposed testimony was inadmissible under OEC 401, OEC 404(4), and OEC 403, and under the Fourteenth Amendment to the United States Constitution and Article I, section 11, of the Oregon Constitution. The state responded that the evidence would not be relevant unless defendant "open[ed] the door." On the first day of trial, the state filed a [298 Or. App.34] trial memorandum detailing the various ways in which the evidence would be admissible if the defendant "opened the door," and it also argued for the admission of JB's testimony as relevant on "proof of motive, lack of mistake or accident as well as [a] sexual predisposition toward pre-pubescent girls, under OEC 404(4), 404(3), 403, and 401." As to its relevance to establish a lack of mistake, the state contended that "[i]f the defendant * * * puts forth a claim that any touching was innocent, or accidental, the state must *** disprove the defense theory." The court did not rule on the state's motion to admit JB's testimony before trial.

         Both MB and LB testified at trial. MB, then 19, testified that, when she was five or six years old, defendant touched her inappropriately at a family gathering. She explained that while she was sitting on his lap when he was in a recliner in the living room, defendant touched her vagina and breast. She testified that the same thing happened again that same day when, with other children around, she was on defendant's lap in a hot tub and he touched her "skin-to-skin."[3]

         LB, then 25, testified to numerous incidents of sexual abuse beginning when she was roughly six to eight years old. She described how defendant sexually penetrated her in the bedroom and front room of his home and in his truck. She explained that defendant would take her with him to take his dog out to play in a rural area. She described how, on more than one occasion, defendant would have her sit on his lap, pull down her pants, and sexually penetrate her. LB also described how defendant put her mouth on his penis once in his bedroom and once in the front room of his home. She explained that the abuse stopped when she was a young teenager because defendant had found out that she had begun menstruating, and he told her that "it couldn't happen anymore because [she] was now a woman."

         The state also called two detectives who testified that, when they interviewed him, defendant denied the conduct described by his granddaughters.

         [298 Or. App.35] The defense called a number of family members who testified that MB and LB acted normal around defendant and that they did not observe anything unusual between the two girls and defendant. Several witnesses testified that defendant did not like to be around children, was not affectionate with his grandchildren, and never had them sit on his lap or spent time alone with them. Defendant's wife testified that defendant did not take care of his own children. The witnesses also testified that it would have been impossible for defendant to sexually abuse the victims during the holiday family gatherings because of the number of people in the home and their visibility due to its layout.

         Lastly, the defense elicited testimony from three witnesses about defendant's sexual propriety around other children. His wife testified that she had never observed any concerning behavior by defendant toward any child. Defendant's daughter-in-law likewise testified that she had never observed any concerning behavior between defendant and any other child, including her own. And LB's younger sister testified that she had sat on defendant's lap in the hot tub before and that he had hugged her in the past, but that he had never made her feel uncomfortable.

         After the defense rested, the state argued that defendant had "opened the door" for JB's proposed testimony by asking several witnesses "what they had seen, how * * * defendant acted around children within the residence, how the children reacted toward *** defendant, essentially implying this couldn't have happened because [MB] and [LB] were not afraid of [him]." According to the state, through this testimony, there is "some inference or implication [that] * * * everybody in the family thinks [defendant] is the perfect grandfather, father, has no inappropriate contact at any point." The state further argued that the evidence was admissible under Williams "to show defendant's sexual predisposition towards a certain age of child."

         In an OEC 104 hearing outside the jury's presence JB testified to the details of the sexual abuse. The state then argued that her testimony was admissible under OEC 404(4) and 404(3) for two purposes: (1) "to show *** defendant's sexual predisposition towards children *** between [298 Or. App.36] five and nine" and (2) "to prove there was no accidental touching; that this was sexual touching that occurred." The state asserted that the prior conduct and charged acts were admissible under State v. Johns, 301 Or. 535, 725 P.2d 312 (1986), and that the probative value of the evidence was not substantially outweighed by any prejudice under OEC 403. Defendant disagreed that he had "opened the door" to the evidence and argued that the prejudicial effect of JB's proposed testimony "far outweigh[ed]" its probative value.

         In making its ruling, the court began by stating that it was evaluating the ...


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