State v. Allen
| Decision Date | 26 August 1986 |
| Citation | 725 P.2d 331,301 Or. 569 |
| Parties | STATE of Oregon, Respondent on review, v. Edward Eugene ALLEN, Petitioner on review. CC CR 84 2 32; CA A36265; SC S32762. |
| Court | Oregon Supreme Court |
Robert J. McCrea of McCrea, P.C., Eugene, argued the cause and filed the petition for petitioner on review.
Richard D. Wasserman, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With him were Dave Frohnmayer, Atty. Gen. and James E. Mountain, Jr., Sol. Gen., Salem. JONES, Justice.
Defendant was convicted by a jury of first degree arson. He appealed, contending that the trial court erred in admitting evidence that he previously had committed arson. The Court of Appeals affirmed defendant's conviction without opinion, 78 Or.App. 193, 714 P.2d 1119, and defendant petitions this court for review. We granted review to decide whether the Court of Appeals properly affirmed the trial court's admission into evidence of a prior arson of a building committed by the defendant. We affirm the Court of Appeals.
Defendant was charged with hiring an acquaintance, Michael Dotson, to set fire to a house in Brookings on December 1, 1982. At trial, the state offered evidence that Dotson met defendant through Dotson's janitorial service, which cleaned a restaurant owned by defendant, and that Dotson and defendant met several times in Medford taverns at which time defendant told Dotson that he wanted to have a house in Brookings burned. Defendant said that the house belonged to a friend who was getting a divorce, and the friend wanted to burn the house before the property settlement. Dotson eventually agreed to set the fire in return for several thousand dollars.
After detailed coaching by defendant, Dotson drove from Medford to Brookings during the early morning of December 1. Arriving in Brookings at 8 a.m., he purchased a gasoline can at a hardware store and filled it with unleaded gasoline. Following defendant's prescribed methodology, Dotson placed paper cups filled with unleaded gasoline in the oven and turned on the oven; he also poured gasoline in several rooms in the house. After the house caught fire, Dotson remained nearby and watched firefighters put out the blaze. He then telephoned defendant to report that he successfully had set fire to the house. Defendant denied any participation in setting the fire. To show defendant's motive, the state offered evidence that defendant hired the dwelling torched to obtain insurance money in excess of the market value of the premises and to resolve a friend's marital dispute.
Although defendant did not own the house, the state argued that he would gain from the fire. To understand the state's theory of defendant's motive, we give the somewhat complex history of the house's legal ownership. Defendant's mother originally owned the house, using it occasionally on weekends and vacations. In 1981, she and defendant borrowed $50,000 from a credit union using the house as security; defendant spent about $40,000 of the loan on investments. Defendant defaulted on the loan and the credit union took title to the house in July 1982. While defendant and the credit union attempted to negotiate an agreement so that defendant could repurchase the house after foreclosure, the insurance policy for the house remained in his mother's name, and was in her name at the time of the fire.
In addition to evidence offered to prove that the 1982 fire was an act of arson, the state offered evidence of a 1975 arson to which defendant confessed. Defendant's confession to the arson was one of a number of other confessions to other crimes and he pled guilty to two burglaries and one perjury charge. It is the admission of this evidence of defendant's uncharged prior misconduct that concerns us in this case.
To prove defendant's prior arson, the state offered testimony from two state police officers. The officers testified that in 1977 defendant confessed that he hired a friend to set fire to his house in Talent, Oregon, on January 27, 1975. Defendant admitted that because he needed money he filed a falsified insurance claim for items not actually lost in the fire and that he committed the arson to resolve a marital dispute.
At trial, the state contended that the evidence of the 1975 arson showed a method similar to the 1982 arson: defendant paid a friend to set the fire, gasoline was used to start the fire, and he falsely claimed insurance proceeds. The state also argued that defendant had learned from the 1975 arson to refine his criminal technique. The force of the gasoline explosion in the 1975 fire knocked defendant's accomplice off the front porch of the house. "[T]he contrast between the crude method of setting the 1975 fire, in which defendant's friend was injured, and the somewhat more sophisticated and safe method of starting this fire, in which the ignition would be delayed until the oven element reached a high temperature, showed defendant's preparation and plan to commit the crime."
As mentioned, we allowed review, together with State v. Johns, 301 Or. 535, 725 P.2d 312 (1986), and State v. Gailey, 301 Or. 563, 725 P.2d 328 (1986), to determine whether the similar crime evidence in this case is admissible under OEC 404(3). Defendant denied having anything to do with the fire and claims that the fire's origin was unknown.
The prior crime evidence of the 1975 arson was admissible. As we stated in Johns and Gailey, we approach prior crime cases by first determining if the prior crime evidence even slightly increases or decreases the probability of existence of any material fact in issue, and that if the only relevance the prior crime evidence possesses is to prove the defendant had a propensity to commit the charged crime, the evidence must be excluded. Although the prosecutor in the case at bar asserted admissibility on several grounds, we select two of those grounds which are most worthy.
As set forth in the massive work, Imwinkelried, Uncharged Misconduct Evidence (1984), there are certain basic methods of circumventing the prohibition against using a defendant's acts as circumstantial proof of conduct. The first method is to avoid the forbidden theory of logical relevance, that is, to prove propensity or bad character, by offering the defendant's acts to establish an immediate inference other than the defendant's subjective disposition, such as offering the defendant's acts to prove an objective improbability of accident. Imwinkelried sets forth the following example demonstrating this method:
" * * * Suppose that the government is prosecuting the defendant for arson at her warehouse. The prosecution has evidence that in the past four years, the defendant started three other arson fires at other buildings she owns in town. If the defendant claimed that the warehouse fire started accidentally, the prosecutor could introduce the evidence of the other arson fires to negate the claim of accident. [Jefferson, California Evidence Benchbook § 21.3; 2 Wigmore, Evidence §§ 303, 354, 363 (3rd Ed); Albro, Proof of Similar Offences to Establish a Prima Facie Case, Lincoln L Rev 72 (July 1930); Slough & Knightly, Other Vices, Other Crimes, 41 Iowa L Rev 325, 330 (1956); Recent Case, 87 Harv L Rev 1074, 1075 (1974).]
* * * " Imwinkelried supra at 52-53, § 2:20 ().
Imwinkelried asserts that by utilizing this approach, "the prosecutor greatly reduces the risk of prejudice to the defendant" because the "alternative theory of logical relevances does not force the jury to dwell on the defendant's character as a criminal or arsonist." He writes:
" * * * The jury does not ask: What type of person is the defendant? Rather, the jury asks: Given these other fires, how likely is it that the fire in question was accidental? * * * " Id. at 53, § 2:20.
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State v. Walton
...relevant if it "even slightly increases or decreases the probability of existence of any material fact in issue[.]" State v. Allen, 301 Or. 569, 573, 725 P.2d 331 (1986). The trial court found that evidence of the Minit Mart robbery was relevant for the reasons asserted by the state. On thi......
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State v. Moen
...is relevant if it "even slightly increases or decreases the probability of existence of any material fact in issue." State v. Allen, 301 Or. 569, 573, 725 P.2d 331 (1986) (emphasis Long before Johns, this court recognized the relevancy of a defendant's prior hostile acts toward a homicide v......
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State v. Beavers
...was caused by arson was relevant to rebut "defense evidence that the [charged] fire was electrical in origin"); State v. Allen, 301 Or. 569, 577, 725 P.2d 331 (1986) ("evidence of the prior arson was relevant to [the] defendant's knowledge of how to start an arson fire and was also relevant......
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