State v. Tena

362 Or. 514

412 P.3d 175

STATE of Oregon, Respondent on Review,

v.Israel Ovalle TENA, Jr., Petitioner on Review.

CC 201304366

SC S064500

Supreme Court of Oregon.

Argued and submitted June 15, 2017.

March 1, 2018

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

Doug M. Petrina, 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.

Margaret Garvin, Portland, filed the brief on behalf of amici curiae The National Crime Victim Law Institute; Oregon Crime Victims Law Center; and Oregon Coalition Against Domestic and Sexual Violence. Also on the brief was William McMillen.

Before Balmer, Chief Justice, and Kistler, Walters, and Nakamoto, Justices, Landau, Senior Justice pro tempore, and Tookey, Judge of the Court of Appeals, Justice pro tempore.^**

LANDAU, S.J.

In this criminal case, defendant was convicted of felony fourth-degree assault constituting domestic violence. ORS 132.586 ; ORS 163.160(3)(c). On appeal, he challenged the admission of evidence that he had previously assaulted two other intimate partners within the last 14 years. The state argued that the evidence was admissible to prove intent, and the Court of Appeals agreed. State v. Tena , 281 Or.App. 57, 384 P.3d 521 (2016). We conclude that the evidence of the two prior incidents of domestic violence were impermissible character evidence. We therefore reverse the decision of the Court of Appeals.

The relevant facts—at least for the purposes of appeal—are not in dispute. Defendant lived with the victim, who was his girlfriend, and her step-sister. Drinking alcohol was prohibited at that residence. In August 2011, he came home and was upset because the victim had failed to respond to his text messages quickly enough. He demanded to know whether she had been drinking. Before she could answer, defendant grabbed her hair and punched her in the face repeatedly until she fell. Defendant lifted the victim by the throat and threw her to the floor again. The victim yelled for defendant to stop, but defendant punched her in the face several more times. The victim's step-sister called 9-1-1, and while she was on the phone, defendantleft. Police arrived, and the victim told them that defendant had assaulted her.

The state charged defendant with fourth-degree assault. Because defendant previously had been convicted of at least three domestic violence assaults, the assault was charged as a felony. ORS 163.160(3)(c).

Defendant's theory of the case was that he had not assaulted the victim at all and that she had accidentally injured herself. And, by the time of trial, the victim had recanted her report to the police. She testified that she had tripped during a purely verbal argument and that she had hit her face against a chair.

The state sought to introduce evidence of two previous assaults to show that the victim had not accidentally injured herself and that defendant had intentionally assaulted her. The first incident occurred 14 years earlier, in 1997, when defendant attacked his then-wife, PT. He and PT had been arguing over childcare issues and PT's desire to attend truck-driving school. When PT attempted to leave, defendant punched her in the face multiple times and pushed her down, causing her to fall and hit her head. Defendant put a belt around her neck and squeezed for 30 seconds until the belt broke and PT pretended to pass out. She asked defendant to call an ambulance, but defendant refused and told her to lie in bed. He kept her there for several hours and then left.

The second incident occurred seven years later, in 2004, and involved defendant's then-girlfriend, LW. Defendant and LW were at a bar drinking when LW recognized a male friend of hers. She greeted him and gave him a hug. When LW turned back to defendant, she discovered that he had left, requiring her to walk four miles to get home. When she arrived at home, defendant punched her in the head. She fell and struck her head on the fireplace, losing consciousness. Defendant kicked LW in the ribs repeatedly to wake her and then dragged her by the hair to their bedroom. In the bedroom, defendant lay on top of LW to keep her from leaving, punching and strangling her over two and a half hours. He accused LW of wanting to have sex with other men and told her that he would kill her that night and bury her in the backyard. LW played dead, and when defendant went to get a knife, she jumped through the back window and climbed over a fence to escape. He caught LW in the driveway, but fled when she screamed.

The state argued that the evidence of the two prior assaults was admissible under either of two theories under OEC 404(3). First, the state asserted that the evidence was admissible to prove defendant's hostile motive toward the victim. Second, it argued that it was admissible to establish defendant's intent, under the doctrine-of-chances theory. Defendant objected to the admissibility of the evidence of the prior assaults on the ground that they lacked sufficient similarity to the charged offense to be probative of his motive or intent. The trial court allowed the evidence under both hostile motive and intent theories of admissibility.

Defendant was convicted and appealed his conviction to the Court of Appeals, arguing that the trial court erred in admitting the evidence of his assaults on two previous intimate partners to show either hostile motive or intent.

The Court of Appeals affirmed, holding that the trial court properly allowed the evidence of the previous assaults to prove defendant's hostile motive toward the victim. The court stated that, because it had determined that the evidence was properly admitted as hostile-motive evidence, it did not reach the issue of admissibility to show intent. Tena , 281 Or.App. at 71, 384 P.3d 521.

On review before this court, defendant argues that the evidence of the two prior incidents of domestic violence was not admissible to prove motive, because the prior incidents do not in any way explain why defendant assaulted the victim in this case. Defendant further argues that the evidence is not admissible to prove intent under a doctrine-of-chances theory, because, at a minimum, that theory requires sufficient similarity between prior acts of misconduct and the act at issue to permit an inference that the act at issue was committed intentionally. In this case, defendant argues, the prior acts of domestic violence were too dissimilar to permit that inference. In the alternative, defendant argues that, even if the evidence of prior acts is otherwise admissible to establish motive or intent under OEC 404(3), it remains inadmissible because the probative value of the evidence is substantially outweighed by its prejudicial effect, under OEC 403.

In response, the state reprises its arguments that the evidence of the two prior incidents is admissible under OEC 404(3) because it constitutes evidence of motive or intent. Specifically, the state argues that the evidence shows "defendant's strong desire to assert control and power over his intimate partner," and "[t]he fact that defendant's previous domestic partners had suffered similar injuries in similar circumstances tended to show that the current victim's injuries were inflicted intentionally." As for defendant's argument that, at all events, the evidence is inadmissible under OEC 403, the state asserts that it is unpreserved. In the alternative, the state argues that, if the evidence was inadmissible to prove motive or intent under OEC 404(3), this court still should conclude that the evidence is admissible under an alternative rule, OEC 404(4).

We begin with a brief summary of the relevant legal principles. OEC 402 states that "relevant evidence is admissible," except as otherwise provided elsewhere in the Oregon Evidence Code, the state or federal constitutions, or other applicable laws. OEC 403 is one such limitation on the admissibility of relevant evidence. It provides that, "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence."

OEC 404(3) sets another limitation on the admissibility of relevant evidence. It declares that "[e]vidence 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." (Emphasis added.) But it adds that such evidence is admissible for purposes other than proving a person's character and the propensity to act consistently with that character, namely, "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Thus, under OEC 404(3), the admissibility of other-acts evidence depends on the purpose for which it is offered.

OEC 404(4), however, provides that, in criminal actions, "evidence of other crimes, wrongs or acts by the defendant is admissible if relevant," except as otherwise provided by specific statutory provisions to the contrary and by the state or federal constitutions. Under that rule, other-acts evidence is generally admissible, regardless of the purpose for which it is offered, though it may still be inadmissible under, among other things, the state or federal constitution. On its face, the rule appears to conflict with OEC 404(3), at least in part; specifically, it appears to conflict with the part of OEC 404(3) that states that other acts evidence is not admissible to prove a defendant's character in a criminal action.

In a series of decisions issued over the course of the last several years, this court has attempted to identify the interplay between...