State v. Moles

295 Or.App. 606

435 P.3d 782

STATE of Oregon, Plaintiff-Respondent,

v.David Alan MOLES, Defendant-Appellant.

A161140

Court of Appeals of Oregon.

Submitted February 26, 2018.

January 9, 2019

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Meredith Allen, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General, filed the brief for respondent.

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

DeVORE, J.

Defendant appeals a judgment of conviction for six counts of first-degree sexual abuse committed against the victim, a child under the age of 14. He assigns error to the trial court’s denial of his motion in limine to exclude evidence that he had also abused the victim’s mother when she was a child. According to defendant, the trial court erred in its assessment of the probative value of that evidence of uncharged misconduct and, consequently, the court erroneously concluded under OEC 403 that the probative value of the evidence was not substantially outweighed by the risk of unfair prejudice. As we will explain, the trial court conducted OEC 403 balancing with regard to each of the specific purposes for which the state offered the evidence, and it acted within its discretion to admit the evidence for one of those purposes: that is, to show defendant’s sexual purpose in committing the charged acts. Because the evidence was properly admitted for that purpose, any error that the trial court may have committed with regard to admitting the evidence for other purposes was harmless on this record. Accordingly, we affirm.

I. BACKGROUND

Defendant was charged with committing various crimes against D, the minor granddaughter of his ex-wife, when D was roughly between the ages of 6 and 10. Six of the counts alleged first-degree sexual abuse, based on allegations that defendant had, on separate occasions and at different locations, touched D’s genitals, breasts, or buttocks, or caused D to touch defendant’s genitals. Defendant was also charged with one count of first-degree sodomy involving D.

Before trial, defendant filed a motion in limine to exclude any evidence that, approximately 20 years earlier, defendant had sexually abused D’s mother when she was between the ages of 10 and 15. D’s mother made that dis-closure to police when reporting defendant’s abuse of D. Defendant anticipated that the state would offer evidence that mother "claims that a couple of times each week, every week, [defendant] would digitally penetrate her and make her perform oral sex on him. She said she did not know why this stopped when she was 15."

In addition, there was evidence that defendant had made incriminating statements to an investigating officer to the effect that any misconduct with D’s mother had occurred when defendant had been drinking, but that he had not had a drink for the past 20 years. That evidence was the subject of the same motion and an additional motion to suppress, based in part on the fact that the officer had failed to record the statements; the court denied that additional motion, and it is not at issue on appeal.

In his motion in limine , defendant framed his arguments about the statements of D’s mother in light of the Supreme Court’s then-recent decision in State v. Williams , 357 Or. 1, 346 P.3d 455 (2015), which addressed the admission of evidence of prior bad acts in a child sexual abuse case. Defendant acknowledged that Williams held that "other act evidence is admissible to prove propensity or character in child sexual abuse cases," but argued that the evidence was still subject to balancing under OEC 403. Defendant took the position, in light of Williams , that evidence of his abuse of D’s mother was "not relevant. However, should the court find that the evidence is relevant that relevancy is limited to the prior acts amounting to propensity evidence and is not admissible at trial under OEC 403."

In response, the state argued that the evidence was admissible on multiple theories. First, the prosecutor explained that it was relevant on a propensity theory, which was similar to that described in Williams , that defendant had a sexual interest in family members who are children, from which the jury could infer that he acted with a sexual purpose toward D. Second, based on statements defendant made to the investigating officer, the prosecutor anticipated that one of the defenses at trial might be "that if there was any type of conduct, it was misconstrued, it was accidental type of touching," so that "whether or not the defendant acted with a sexual purpose is going to be a central issue in this case." Therefore, the prosecutor argued, the evidence was admissible "to show the defendant’s intent, absence of mistake under the doctrine of chances theory."¹ And, third, the prosecutor argued that the evidence was relevant to "explain people’s conduct." Specifically, the evidence explained the fact that, at various times over the years, D’s mother had asked D whether she had been abused by defendant. According to the prosecutor, without the evidence that D’s mother had been abused herself by defendant, the jury would wonder why she was asking about the abuse and whether she had coached D or implanted memories. The prosecutor argued, the probative value of the evidence on those various theories was not substantially outweighed by the danger of unfair prejudice to defendant.

The trial court largely agreed with the state, and it issued a detailed letter opinion to explain its reasoning with regard to each of the three theories of relevance. The court began its analysis by addressing the state’s propensity argument based on Williams . The court concluded that the evidence was relevant under Williams to demonstrate that defendant acted with a sexual purpose: "[A] jury could reasonably infer that defendant’s prior abuse of [D’s mother] indicates defendant has a sexual interest in children and that defendant acted from that interest when he touched the child victim in this case. Such evidence, which has a tendency to make it more probable that defendant had a sexual purpose when he committed the charged act, is logically relevant under OEC 401."

The court then turned to the issue of OEC 403 balancing. In conducting its balancing, the court considered the five factors set forth in United States v. LeMay , 260 F.3d 1018 (9th Cir. 2001), which had been cited by the Supreme Court in Williams . Those factors were the similarity of the prior acts to the acts charged, the closeness in time of the prior acts to the acts charged, the frequency of the prior acts, the presence or lack of intervening circumstances, and the need for the evidence in light of other testimony at trial.

Based on its analysis of those five factors, the trial court concluded that the probative value of the evidence to show defendant’s sexual purpose outweighed the danger of unfair prejudice.

After concluding that the evidence was admissible on that propensity theory, the court addressed whether the evidence was also relevant to prove intent under the analysis set forth in State v. Johns , 301 Or. 535, 725 P.2d 312 (1986). The court reasoned that the evidence met each of the first five Johns criteria (the present charge required proof of intent; the prior acts required the same mental state as the present charge; the victim in the prior act was the same victim or in the same class of victim; the type of act was the same or similar; and the physical elements of the prior act and the present act were similar). The court then considered additional factors set forth in Johns related to OEC 403 balancing and concluded that the probative value of the evidence to show intent was not substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, undue delay, or presentation of cumulative evidence.

Finally, the court agreed with the state’s contention that the evidence was admissible "to explain witness behavior." The court ruled that, "[f]or the jury to fairly assess the credibility of [D] and to assess what occurred between her and the defendant, the jury needs to have a full understanding of the relationship between her mother and the defendant."

At trial, D’s mother testified as anticipated. She testified that defendant had abused her when she was about 10 years old, including penetrating her vagina with his finger and performing oral sex on her, and that it lasted until she was around 15. Shortly after she testified, and again at the close of evidence, the court instructed the jury regarding its consideration of the evidence of uncharged misconduct. The court’s jury instructions tracked its ruling on the motion in limine , limiting the jury’s consideration of the evidence to the three purposes identified in that ruling. Moreover, the jury was instructed to consider the evidence for those purposes only after determining that defendant subjected D to the alleged contact.²

The jury returned a guilty verdict on six counts of first-degree sexual abuse against D, and it found defendant not guilty of the sodomy charge. The court entered a judgment of conviction on the six counts of sexual abuse, which defendant appeals.

II. ANALYSIS

On appeal, defendant argues that the trial court erred in denying his motion in limine . He contends that the evidence was not relevant for any of the three theories for which it was offered—to show sexual purpose, intent under the doctrine of chances, or to explain witness behavior. He further argues that, to the extent the court erroneously assessed the relevance of any of those theories, we must reverse under the Supreme Court’s decision in State v. Baughman , 361 Or. 386, 410, 393 P.3d 1132 (2017), because "an error in assessing the relevant purposes for the evidence significantly affects the trial court’s decision under ...