State v. Davis

553 P.3d 1017

372 Or. 618

STATE of Oregon, Petitioner on Review,

v.Thomas Alan DAVIS, Jr., Respondent on Review.

(SC S069688)

Supreme Court of Oregon.

Argued and Submitted May 11, 2023

July 25, 2024

On review from the Court of Appeals.^* (CC 131383CR) CCA A169891)

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

David O. Ferry, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for respondent on review. Also on the briefs was Ernest G. Lannet, Chief Deputy Defender, Criminal Appellate Section.

Before Flynn, Chief Justice, and Duncan, Garrett, DeHoog, James, and Masih Justices, and Balmer, Senior Judge, Justice pro tempore.^**

JAMES, J.

₆₂₀In this case, we return again to the subject of "other acts" evidence, character, propensity, and OEC 403 balancing. The state prosecuted defendant for attacking a woman, a complete stranger, who was jogging by him on a sidewalk. Defendant tackled the victim from behind, knocking her out, and then dragged her into a secluded nearby ditch. The victim eventually fought off the attack, and defendant fled the scene. Defendant was charged with, among other things, attempted first-degree sexual abuse—a crime that requires a specific intent to sexually assault. However, in this case, the state faced a problem: There was no direct evidence that defendant intended to sexually assault the victim. Therefore, to prove that intent at trial, the state offered evidence of highly offensive, sexually explicit notes that defendant had previously written and delivered to two other women whom he did not know in the weeks preceding the attack on the victim. In those two notes, defendant expressed his desire to forcibly sexually assault the two women. The trial court admitted those notes, over defendant’s objection, relying upon OEC 404(3), which provides that other acts evidence otherwise inadmissible under OEC 404(3) may "be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Once admitted, the state asked the jury to infer from those two notes that, when defendant physically attacked the victim in this case, he had the intent to ultimately sexually assault her. Defendant was convicted on all charges.

[1] On defendant’s first appeal, the Court of Appeals held that the notes were inadmis- sible character evidence under OEC 404(3), because the relevance of the notes to defendant’s motive to commit a sexual assault depended on a character-based propensity inference. State v. Davis, 290 Or App 244, 248, 414 P.3d 887 (2018) (Davis I). The Court of Appeals remanded the case to the trial court for a determination of whether the notes were nevertheless admissible under OEC 404(4). Admission under OEC 404(4) is limited by OEC 403, which provides that otherwise admissible evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice."

₆₂₁On remand, the trial court ruled that the notes were admissible under OEC 404(4) and exercised its discretion to not exclude the evidence under OEC 403. On appeal from that ruling, the Court of Appeals, in a divided opinion, ruled that the trial court had abused its discretion in failing to exclude the evidence under OEC 403, because the danger of unfair prejudice resulting from the admission of the notes substantially outweighed the notes’ probative value. State v. Davis, 319 Or App 737, 511 P.3d 10 (2022) (Davis II).

We allowed the state’s petition for review. Before this court, the state argues that the Court of Appeals erred in holding that the trial court abused its discretion under OEC 403 in admitting the evidence. Defendant argues that the Court of Appeals was correct, or, in the alternative, that if the trial court was within its discretion to admit the evidence under OEC 403, principles of due process prohibited the use evidence "offered only to prove propensity." For the reasons explained below, we conclude that the trial court’s decision to not exclude the notes evidence under OEC 403 was within the permissible range of discretion. As we explain, we decline to address defendant’s alternative argument under the Due Process Clause because that argument was not preserved before the trial court. Accordingly, we reverse the decision of the Court of Appeals and remand the case to that court for further proceedings.

I. FACTS AND PROCEDURAL BACKGROUND

In 2012, the victim was jogging on a sidewalk near her home when defendant tackled her from behind, knocking her out temporarily. Defendant dragged the victim face down off the sidewalk and placed her in a secluded ditch nearby. The victim came to and began to fight back. Defendant stood over her and held one of her hands down. The victim was able to flip herself over, and, using her other hand, shoved two of her gloved fingers into defendant’s mouth. Defendant then ran away. The victim suffered abrasions and an injury to her shoulder.

The victim could not identify her attacker but testing of her glove revealed defendant’s DNA. Defendant was charged with first-degree kidnapping under ORS 163.235, ₆₂₂fourth-degree assault under ORS 163.160, and attempted first-degree sexual abuse under ORS 163.427. To prove attempted sexual abuse, the state was required to prove that defendant intended to forcibly subject the victim to sexual contact when he physically attacked her.¹

Defendant did not say or do anything during the attack that amounted to direct evidence of a sexual motive. To prove defendant’s sexual intent, therefore, the state offered evidence that, in the weeks preceding the attack, defendant had left handwritten notes on the cars of two female strangers at two different store parking lots. Both notes graphically expressed, in nearly identical terms, defendant’s desire to engage in violent, painful anal sexual intercourse with the women.² Defendant left one of the notes ap- proximately two months before the attack on the victim in this case, and he left the other note ten days before the attack. Defendant admitted authoring the notes, but claimed that they were not directed to strangers, but rather left for his girlfriend.

In opening statements to the jury, the prosecutor referenced the notes, stating:

"[PROSECUTOR]: *** What was his intent? What was his motive?

"And the evidence that—part of the evidence of that point are some statements that [defendant] had been making in the weeks leading up to this particular attack.

"He had been going—he’d been leaving these notes for women he had never met before, complete strangers to him."

₆₂₃This prompted an objection from defense counsel on OEC 404 grounds and discussions outside the presence of the jury. In response, the state argued that the notes were not "other acts" evidence at all, but rather, properly conceived of only as hearsay—statements of defendant that showed his thoughts, offered to prove sexual intent:

"[PROSECUTOR]: So the—my intent all along was to offer these notes into evidence in this case, not to prove that [defendant] is the perpetrator that attacked [the victim]. That can be done through DNA and other purposes.

"* * * * *

"These notes would be offered solely to prove [defendant’s] intent. Because frankly, [j]udge, identity is not my problem in this case, but intent is, and I’m being very candid here.

"* * * * *

"*** [T]o me the notes are being offered as party opponent admissions, so they’re statements of the defendant that I’m offering to prove that his intent was to have sexual contact with a woman, with a woman that he didn’t know.

"*** [T]he analogy is this is no different than the defendant sitting next to his buddy and saying, ‘I’m going to go out, and, you know, and rape me a woman tonight,’ or something like that. ‘I’m going to go out there and—and take what I want from this—from this woman.’

"* * * * *

"*** [T]he notes would be offered as a party opponent admission in—in no different way than if I called a friend of the defendant to the stand who would say, ‘You know, the defendant told me these things.’

"I’m not offering them as a part of that act contrary to what my opponent has asserted a couple times today. The defendant is not accused of sexually assaulting anybody else, nor do I intend to suggest to the jury that he has.

"* * * * *

"*** [T]hese are being offered not as prior bad acts under 404—

"* * * * *

₆₂₄"—but as relevant statements of the defendant [under OEC] 403. ***

"* * * * *

"Even though the notes are in some ways almost shocking when you see the little illustration, the—the—the reason they’re shocking is because they’re so darn probative. They’re so darn informational about the defendant’s intent."

At a later hearing, the state reiterated its theory of relevance:

"[PROSECUTOR]: *** These are the defendant’s own words. These—these—these are things that the defendant himself said.

"And he said it about strange women. He said it about violent sex. And he clearly expressed his intent to want to sexually assault a strange woman.

"If these notes said something like, you know, ‘Heil Hitler, I am a Nazi,’ or, you know, some other very, very inflammatory, but unrelated topic, which they don’t, then there would be a good argument that, ‘Hey, the [s]tate’s just trying to paint my—a picture of my client as a bad guy.

"And—and that’s not the case. ***

"We are offering the notes to summarize as relevant evidence of the defendant’s—a statement of the defendant relevant to his—his intent, his motive. And it is distinct from any evidence we might be offering as past conduct that he has engaged in with respect to any acts.

"Because—for those reasons we don’t go through a[n] [OEC 404(3)] analysis, but we do go through a basic relevance test."

The trial court accepted defendant’s arguments...