State v. Travis

320 Or.App. 460

513 P.3d 614

STATE of Oregon, Plaintiff-Respondent,

v.Roy Allen TRAVIS, Defendant-Appellant.

A173434

Court of Appeals of Oregon.

Argued and submitted January 18, 2022.

June 23, 2022

Sara F. Werboff, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

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

Before Mooney, Presiding Judge, and Pagán, Judge, and Hadlock, Judge pro tempore.^*

PAGÁN, J.

In this criminal appeal, defendant contests his convictions of multiple sex crimes occurring over the course of approximately 13 years. The victim of those sex crimes was a woman who was at first defendant's stepdaughter, M, and later, his wife. On appeal, defendant challenges the trial court's decision to admit certain evidence of defendant's prior conviction of first-degree rape, committed against his teenaged biological daughter, and jury instructions allowing for nonunanimous guilty verdicts. Because the jury returned unanimous guilty verdicts for each conviction, we reject that argument for the reasons stated in State v. Ciraulo , 367 Or. 350, 478 P.3d 502 (2020), cert. den. , 594 U.S. ––––, 141 S. Ct. 2836, 210 L. Ed. 2d 950 (2021).

On appeal, the state concedes that the evidence of defendant's prior rape conviction was not properly admitted for a noncharacter purpose under OEC 404(3). In light of the record and our recent cases explaining that sexual motive is generally not a permissible reason to admit evidence for noncharacter purposes, we accept that concession as well taken. See State v. Martinez , 315 Or. App. 48, 56-57, 499 P.3d 856 (2021) (evidence of prior conduct to show sexual purpose was impermissible character evidence under OEC 404(3) ); State v. Levasseur , 309 Or. App. 745, 753, 483 P.3d 1167, adh'd as modified , 312 Or. App. 733, 489 P.3d 630, rev. den. , 368 Or. 788, 498 P.3d 300 (2021) (same); State v. Terry , 309 Or. App. 459, 463-64, 482 P.3d 105 (2021) (same). Due to that concession, the resolution of this appeal reduces to whether the evidence was also considered for a permissible character purpose under OEC 404(4) and, if considered for that purpose, whether the evidence had to be excluded as unfairly prejudicial under OEC 403. We conclude that the record does not support a finding that the trial court considered the evidence for a OEC 404(4) purpose, and therefore reverse and remand.

We review a trial court's determination of relevance under OEC 401 for errors of law.

State v. Stockton , 310 Or. App. 116, 123, 483 P.3d 657 (2021). Likewise, we review a trial court's determination that other acts evidence is relevant and admissible under OEC 404(3) or OEC 404(4) for legal error. Id. Whether otherwise admissible evidence should be excluded as unfairly prejudicial under OEC 403 is reviewed for abuse of discretion. Levasseur , 309 Or. App. at 747, 483 P.3d 1167. In the procedural history of this case, the challenged evidence was deemed relevant and admissible during a pretrial hearing; thus, our review is limited to the record that was before the trial court at that time. See State v. Warren , 291 Or. App. 496, 510, 422 P.3d 282, rev. den., 363 Or. 744, 430 P.3d 567 (2018).

Given the concession about whether the challenged evidence was admissible under OEC 404(3), the relevant facts are largely procedural and are drawn from each side's arguments as well as the court's reasoning in admitting the evidence.

As the proponent of the challenged evidence, the state moved in limine to admit "evidence of Defendant's sexual abuse of his daughter, and statements made by Defendant regarding his sexual attraction to children." The state proposed to admit a certified copy of defendant's 1992 conviction for first-degree rape, "interview statements made by *** defendant's daughter in the prior case," and a "statement from a family friend" that purported to contain an admission by defendant that acknowledged the sexual abuse problem and that he was seeking help from a counselor.¹ The state also proposed to have defendant's biological daughter testify about the rape that gave rise to the 1992 conviction.

The state made clear to the trial court that it was offering the evidence under a noncharacter theory and a character theory. First, the state argued that the evidence was relevant and admissible as noncharacter evidence to "prove defendant's sexual motive in offending the child victim in the current case under OEC 404(3) and 403." The state suggested that the similarities between the victim and circumstances underlying the 1992 conviction were indicative of a class of victim that was the object of defendant's sexual offenses, which was an explanation of "the driving force behind this behavior," and therefore why the evidence was relevant and admissible as noncharacter evidence under OEC 404(3). The state then argued, under a character theory, that the evidence was "relevant and admissible under OEC 404(4) and 403 to prove sexual attraction to children and the defendant's propensity to sexually abuse children as alleged in this case." The state contended that the evidence was probative of defendant's "propensity to sexually offend this class of victim."

At the pretrial hearing, defendant argued that the probative value of "these prior bad acts *** is substantially outweighed by prejudice." After suggesting that admission of the "prior bad acts" implicated "prior jeopardy issues" as well as "the presumption of innocence," defendant argued "that is, I think, 401, it's prejudicial *** obviously, and I don't think the balancing effect that is cited by 403 and 404 even gets close to allowing that prior information in, and so I would object most wholeheartedly." Defendant also contended that the victim from the 1992 rape conviction and the present allegations were not "a similar class of people," because the "current person *** is his spouse, it's not his daughter."

After both sides had argued their points, the court observed,

"It's an interesting interaction between 403 and 404. The admission of evidence under 404 remains subject to the balancing under 403, so let's—getting down to the heart of the matter in this case, the questions are really getting down to the basis of is it more prejudicial than probative?

"Certainly, appellate courts have found that prior abuse of different victims is a relevant factor, an admissible factor to show that the defendant had a sexual intent in the defendant's behavior.

"So I think that this case, the admissibility is just somewhat a standard admissibility under [ State v. ] Johns , [301 Or. 535, 725 P.2d 312 (1986),] that it goes to the issue of motive, opportunity, intent, plan, et cetera, absence of mistake or accident. I think that in this case the sexual intent of the alleged sexual intent of the defendant is relevant to the issue of whether or not in this situation this type of behavior was with a motive or plan to have sexual intercourse with a child.

"* * * * * "So then finally as to more prejudicial than probative, I guess the question is whether or not the Court can give a jury instruction, if it lets this evidence in, to tell the jury to follow the rules and that the evidence of prior sex abuse of a daughter is not proof that the defendant sexually abused this daughter; it only goes to the motive, intent, plan, knowledge evidence. And for that reason, I think the Court could give a limiting instruction[.]"

The court allowed the challenged evidence to be presented to the jury. At trial, defendant's biological daughter, the victim of the rape giving rise to the 1992 conviction, briefly testified. During her testimony, the state offered the certified copy of the 1992 judgment and that was admitted. The jury was instructed that it "may only consider [the other acts] evidence for the purpose of deciding whether the defendant had a particular motive, purpose, plan, or sexual interest in children." As noted, the jury returned unanimous guilty verdicts for each of the 12 charges.

On appeal, aside from the argument—conceded by the state—that the challenged evidence was not admissible as noncharacter evidence under OEC 404(3), defendant argues that the OEC 403 balancing was necessarily flawed because the trial court did not consider the propensity purpose for admitting the evidence under OEC 404(4). In his view, without considering the correct purpose for admission, the trial court assigned too much probative value to the challenged evidence and therefore abused its discretion in balancing under OEC 403.

The state argues that we should affirm the judgment of conviction because "even if the prior rape evidence was propensity evidence (rather than nonpropensity evidence) and therefore inadmissible under OEC 404(3), it was admissible propensity evidence under OEC 404(4) and Williams ." According to the state it does not matter that the trial court incorrectly admitted the evidence under OEC 404(3) because the court "understood that the other-acts evidence was offered to establish defendant's sexual interest in children (or, put another way, his propensity to sexually abuse children), and it conducted its OEC 403 balancing accordingly."

With the facts and arguments in mind, we turn to our analysis. OEC 404(4) provides:

"In criminal actions, evidence of other crimes, wrongs or acts by the defendant is admissible if relevant except as otherwise provided by:

"(a) [ OEC 406 through 412 ] and, to the extent required by the United States Constitution or the Oregon Constitution, [ OEC 403 ];

"(b) The rules of evidence relating to privilege and hearsay;

"(c) The Oregon Constitution; and

"(d) The United States Constitution."

That rule was enacted as an exception to the general OEC 404(3) rule prohibiting character evidence to show a person acted in...