State v. Williams

357 Or. 1

346 P.3d 455

STATE of Oregon, Petitioner on Review

v.Shawn Gary WILLIAMS, Respondent on Review.

CC 08CR0707

CA A145644

SC S061769.

Supreme Court of Oregon, En Banc.

Argued and Submitted June 23, 2014.

March 19, 2015.

David B. Thompson, Assistant Attorney General, Salem, argued the cause and filed the brief for petitioner on review. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Kristin A. Carveth, Deputy Public Defender, Salem, argued the cause and filed the brief for respondent on review. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Opinion

WALTERS, J.

Defendant was charged with two counts of first-degree sexual abuse for conduct involving a five-year-old child. The state offered evidence that defendant possessed two pairs of children's underwear at the time that he committed the charged acts. Defendant opposed the admission of the evidence as irrelevant under Oregon Evidence Code (OEC) 401¹ and unfairly prejudicial under OEC 403.² The trial court admitted the evidence under OEC 404(3)³ to show that defendant had touched the victim with a sexual purpose rather than accidentally. A jury convicted defendant on both counts. The Court of Appeals reversed, holding that the underwear evidence was not logically relevant to any disputed issue and thus was inadmissible under OEC 401. State v. Williams, 258 Or.App. 106, 308 P.3d 330 (2013). The state petitioned for review, which we allowed to determine whether the evidence was admissible under OEC 401, OEC 403, or OEC 404. We conclude that the trial court did not err in admitting the underwear evidence, and we reverse the decision of the Court of Appeals.

The state charged defendant with two acts of sexual abuse: putting his hand down the underwear of the five-year-old victim and touching her vaginal area, and causing the victim to touch defendant's clothed penis. Defendant denied committing either act. During a police interview, defendant admitted that it was possible that he inadvertently could have touched the victim's genital area on three occasions:

once while he was carrying the victim on his shoulders, once when he and the victim were wrestling, and once when he fell asleep while the victim was lying on top of him. At trial, defendant continued to maintain that he had never put his hand under the victim's underwear or placed the victim's hand onto his clothed penis.

The state sought to introduce two pairs of children's underwear that defendant's landlord had found in defendant's residence after defendant vacated the property. Defendant's landlord testified that one pair of underwear was between the mattress and box spring on defendant's bed and another pair was in a duffel bag. Defendant testified that he did not know where the underwear had come from, but that a female friend and her two young children had spent the weekend at his residence and they possibly had left the underwear behind on that occasion.

Defendant objected to the admission of the underwear evidence, arguing that the evidence did not establish that the underwear was in his possession. He further argued that the underwear was irrelevant to any material issue and that, even if relevant, the evidence was offered only to suggest that defendant had “a problem with little girls”—i.e., that he was a pedophile—and that he acted in conformity with that character in touching the victim in this case. Therefore, defendant asserted, the evidence was unfairly prejudicial and inadmissible under OEC 403.

The state responded that the evidence was not unfairly prejudicial and was admissible under OEC 404(3) to show that defendant had touched the victim with a sexual purpose rather than accidentally. The trial court agreed and admitted the evidence under OEC 404(3). The jury convicted defendant of two counts of first-degree sexual abuse.

Defendant appealed, and the Court of Appeals reversed, holding that OEC 403 and OEC 404(3) apply to only evidence that is logically relevant under OEC 401, and that the underwear evidence was not relevant to a “contested issue in the case.” Williams, 258 Or.App. at 112–13, 308 P.3d 330.

The court explained that the issue of defendant's intent was not truly contested because defendant had not argued that, if he had touched the victim as alleged, he did so without criminal intent. Id. at 113–14, 308 P.3d 330. The court further reasoned that, if defendant had performed the charged acts, then those acts “strongly indicate a sexual purpose.” Id. at 114, 308 P.3d 330. The court reversed and remanded for a new trial. Id. at 117, 308 P.3d 330. This court allowed the state's petition for review.

Before this court, the state contends that we need not decide whether the underwear evidence was admissible under OEC 404(3) to demonstrate defendant's sexual purpose. The state argues that, in criminal cases, OEC 404(4) supersedes OEC 404(3) and makes relevant “other acts” evidence admissible for all purposes. 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.”

The legislature enacted OEC 404(4) in 1997. Or. Laws 1997, ch. 313, § 29. Before that date, a court's analysis of the admissibility of relevant “other acts” evidence in a criminal case began with OEC 404(3), which provides:

“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. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

See State v. Johns, 301 Or. 535, 549–50, 725 P.2d 312 (1986) (considering OEC 404(3) as first step in analysis). If the evidence was admissible for a nonpropensity purpose under OEC 404(3), a court then considered whether the evidence nevertheless should be excluded under OEC 403. See State v. Pinnell, 311 Or. 98, 112–13, 806 P.2d 110 (1991) (determination that evidence was admissible under OEC 404(3) must be followed by determination that it was not unduly prejudicial under OEC 403 ); see also State v. Shaw, 338 Or. 586, 614–15, 113 P.3d 898 (2005) (discussing factors in making determination under OEC 403 ). OEC 403 provides:

“Although 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) represents “a specific application of OEC 403.” Pinnell, 311 Or. at 106, 806 P.2d 110. The purpose of both rules is to exclude evidence that may be unfairly prejudicial to the accused:

“Bad character evidence (such as other crimes by the accused) is excluded under the propensity rule [of OEC 404(3) ], not because it is irrelevant, but because of the risk of unfair prejudice to the accused. The propensity rule's general prohibition of bad character evidence, codified in OEC 404(2) and OEC 404(3), is a specific application of OEC 403. The theory is that the risk that the jury will convict for crimes other than those charged, or because the accused deserves punishment for his past misdeeds, outweighs the probative value of the inference that ‘he's done it before, he's done or will do it again.’ * * * Another reason for the propensity rule in criminal cases is that it is viewed as unfair to require an accused to be prepared not only to defend against the immediate charge, but also to defend or explain away unrelated acts from the past. Additionally, courts are concerned with confusion of issues and undue consumption of time through what may be, in effect, a trial within a trial to ascertain the relationship between the purported other crime and the defendant.”

Id. at 105–07, 806 P.2d 110 (internal citations and footnotes omitted).

In this case, however, the state argues for a different analytical paradigm. The state contends that, in criminal cases, OEC 404(4) now supersedes OEC 404(3), and that relevant “other acts” evidence is now admissible for all purposes unless, after conducting “due process balancing” under OEC 403, the court determines that the federal Due Process Clause requires the exclusion of that evidence. In the state's view, the Due Process Clause of the Fourteenth Amendment to the United States Constitution requires exclusion of “other acts” evidence only when the admission of the evidence would render the trial fundamentally unfair. The state cites Leavitt v. Arave, 383 F.3d 809, 829 (9th Cir.2004), cert. den., 545 U.S. 1105, 125 S.Ct. 2540, 162 L.Ed.2d 277 (2005), for the proposition that the admission of “other acts” evidence renders the trial fundamentally unfair when that evidence “goes only to character and there are no permissible inferences the jury may draw from it.” (Internal quotation marks omitted; emphasis in original.) The state argues that, because that circumstance is not present here, and because the underwear evidence is logically relevant under OEC 401, it is admissible under OEC 404(4).

Defendant responds that the state is arguing that, in criminal cases, OEC 404(4) permits the admission of “other acts” evidence for all purposes, including for the sole purpose of establishing a defendant's character and propensity to act accordingly. He contends that, under the state's construction, OEC 404(4) would abrogate both OEC 404(3) and “traditional” balancing under OEC 403. Defendant argues that the legislature did not intend that result and that the federal constitution precludes it. In defendant's view, the underwear evidence...