State v. Skillicorn

367 Or. 464

479 P.3d 254

STATE of Oregon, Respondent on Review,

v.David John SKILLICORN III, Petitioner on Review.

SC S066822

Supreme Court of Oregon.

Argued and submitted January 15, 2020.

January 14, 2021

Emily P. Seltzer, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioner on review. Also on the brief was Ernest G. Lannet, Chief Defender.

Lauren P. Robertson, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Walters, Chief Justice, and Nakamoto, Flynn, Duncan, Nelson, and Garrett, Justices.^**

DUNCAN, J.

In this criminal case, defendant was charged with first-degree criminal mischief, among other crimes. The state's theory regarding the charge was that, after a disagreement with his girlfriend, defendant intentionally drove a truck into her car. Defendant admitted that he had hit the car but claimed that he had done so accidentally. Specifically, he claimed that the truck had malfunctioned and that he had lost control of it. To rebut that claim, the state sought to introduce evidence that, after a prior disagreement with his girlfriend, defendant had driven recklessly. Over defendant's objection, the trial court admitted the evidence. The state used the evidence to argue that, when defendant "gets angry, he acts out," and that, therefore, the jury should find that, on the night of the charged crimes, defendant had acted out by intentionally damaging his girlfriend's car. The jury convicted defendant of first-degree criminal mischief and other crimes.

Defendant appealed, asserting that the trial court's admission of the evidence of his prior driving violated OEC 404(3), which provides, in part, "Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith." The state argued that the evidence was admissible under the "doctrine of chances," as applied in State v. Johns , 301 Or. 535, 725 P.2d 312 (1986). The Court of Appeals observed that the evidence appeared to be propensity evidence, which is prohibited by OEC 404(3), but concluded that it was admissible under Johns . State v. Skillicorn , 297 Or. App. 663, 681, 443 P.3d 683 (2019). We allowed review to consider whether evidence of uncharged misconduct can be admitted under the doctrine of chances to support an argument like the one the state made in this case.

For the reasons explained below, we conclude (1) OEC 404(3) prohibits the admission of uncharged misconduct evidence for the purpose of arguing that a person has a propensity to commit certain acts, and therefore, it is more likely that the person committed such an act during the incident at issue; (2) the doctrine of chances does not create an exception to that prohibition; (3) to the extent that the doctrine of chances provides a basis for the admission of uncharged misconduct evidence, it does so only to support arguments based on the objective improbability of the recurrence of unusual events, like accidents; (4) Johns held that uncharged misconduct evidence could be admitted under the doctrine of chances to support a propensity argument, a conclusion that was erroneous; (5) the trial court in this case erred in admitting the evidence of defendant's prior driving because the state proffered the evidence to make an propensity argument, and (6) the trial court's error was not harmless. Therefore, we reverse and remand.

I. HISTORICAL AND PROCEDURAL FACTS

We begin with a brief description of the undisputed historical facts. On the night of the charged crimes, defendant was using his employer's truck. After completing a work project, defendant drove the truck to visit his girlfriend, Walker, who was staying at her mother's house. Defendant wanted Walker to leave with him, but Walker declined to do so because she and her mother, Peterson, had a work obligation the next morning. Defendant left the house and got in the truck. Moments later, defendant hit the back of Walker's car, which was parked in Peterson's driveway. Defendant got out of the truck, returned to the house, and apologized to Walker and Peterson, who told him to leave. Defendant got back in the truck and drove away. As he did, he hit a car parked on the street. The car belonged to one of Peterson's neighbor's, Howard. One of the truck's wheels lodged in Howard's car, and the truck crashed into some nearby trees. Defendant got out of the truck, collapsed, and was taken to the hospital. After being released from the hospital, defendant was arrested. He told the arresting officer that the truck had malfunctioned. Specifically, he told the officer that, "[w]hen he put the truck in drive and tried to leave, the truck just took off on him and it jumped forward," causing him to hit Walker's car. Defendant also told the officer that, on the street, the truck "pulled to the right," causing him to hit Howard's car. In addition, defendant told the officer that the truck belonged to his employer and that it "had been loaned to him so he could fix issues that were already going on with [it]."

The state charged defendant with unauthorized use of a vehicle, first-degree criminal mischief, second-degree criminal mischief, and failure to perform the duties of a driver. The first-degree criminal mischief charge alleged that defendant had intentionally damaged Walker's car, and the second-degree criminal mischief charge alleged that defendant had recklessly damaged Howard's car.

After jury selection, but before the presentation of evidence, the prosecutor made a motion for a ruling on the admissibility of evidence of defendant's prior driving. The prosecutor told the trial court that the state's theory regarding the first-degree criminal mischief charge was that defendant "got angry and rammed [Walker's] car * * * on purpose." She also told the court that, because she "need[ed] to prove that the defendant intentionally damaged * * * Walker's car," she wanted to introduce evidence that defendant had "driven in the same [or] similar manner in the same neighborhood before, after leaving [Walker's] residence." She stated that, when Howard and another neighbor, Hout, were interviewed by the police on the night of the charged crimes, they reported that defendant had "blazed through the neighborhood before." She also stated that Howard and Hout would testify that defendant had previously "crashed somewhere on the street."

Defense counsel objected to the admission of the evidence of defendant's "prior driving in the neighborhood." He also told the trial court that the state had not provided any information about a prior crash. The court asked the prosecutor whether the discovery that it had provided to defendant contained any information about a prior crash, and the prosecutor said that it had not, but that she had spoken to Hout and he had told her more about defendant's prior driving in the neighborhood. The prosecutor also told the court that Hout was in the courthouse and that defense counsel could speak with him.

At that point, the trial court ruled that evidence of defendant's prior driving in the neighborhood was relevant, stating:

"With regard to the incident that occurred prior to this at * * * Walker's residence, I do find that that is relevant because we're back at—we're at her—this incident on November 7th is at—at her house, it involves a car that he—a Toyota Tundra which is an—the unauthorized use and he's there at the house on November 7th and then that's when the criminal mischief in the first degree occurs and the state has to prove the intent. And his prior conduct with regard to the issues with regard to Ms. Walker and what he's done before then is relevant ."

(Emphasis added.) The court then balanced the probative value of the evidence against the risk of unfair prejudice, pursuant to OEC 403, which provides that courts may exclude relevant evidence if, among other things, "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury[.]" The court then ruled that the evidence was admissible.

After opening statements, defense counsel asked the trial court to revisit its ruling. Defense counsel told the court that he had spoken with Hout and learned that, although the police had been called in response to a prior incident during which a car had gone off the street and onto a grassy area in the neighborhood, they had not identified defendant as the driver of the car in that incident. The prosecutor did not dispute that, but she said that Hout had told her that he knew defendant was the driver because he saw defendant later and confronted him about the incident. The court adhered to its ruling.

At trial, the state presented evidence about the events on the night of the charged crimes. It also presented evidence about defendant's prior driving in the neighborhood. That evidence included testimony about defendant's driving in the neighborhood in general, as well as testimony about the incident during which defendant drove onto the grassy area.

On direct examination, the prosecutor asked Peterson to "describe [defendant's] driving in the neighborhood." Peterson responded:

"Well, on one occasion, [defendant and Walker] had a fight and [defendant] left, got into his truck and just screamed, I mean, just—it was so loud and it was so fast it scared me and so I kept [Walker] in the house. And my neighbors after that event, I think he went up a grassy knoll area, but came over and said, ‘We have children and we have pets and we don't want him in the neighborhood anymore. We've heard his truck. We know the way he drives and, you know, we're—we're going to bring your name up to the Board.’ And so I thought I might have to move for a while."

When questioning Hout, the prosecutor elicited additional details about d...