State v. Baughman
Jurisdiction | Oregon |
Parties | STATE of Oregon, Plaintiff–Respondent, v. Russell Allen BAUGHMAN, Defendant–Appellant. |
Citation | 276 Or.App. 754,369 P.3d 423 |
Docket Number | 111306,A152531. |
Court | Oregon Court of Appeals |
Decision Date | 09 March 2016 |
Eric Johansen, Deputy Public Defender, argued the cause for appellant. With him on the opening and reply briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services. With him on the supplemental brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section.
Patrick M. Ebbett, Assistant Attorney General, argued the cause for respondent. With him on the briefs were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before SERCOMBE, Presiding Judge, and HADLOCK, Chief Judge, and TOOKEY, Judge.
Defendant appeals a judgment of conviction for one count of first-degree unlawful sexual penetration, ORS 163.411, three counts of first-degree sexual abuse, ORS 163.427, one count of second-degree sodomy, ORS 163.395, one count of second-degree unlawful sexual penetration, ORS 163.408, one count of third-degree sodomy, ORS 163.385, and one count of third-degree sexual abuse, ORS 163.415. All of the acts relating to those convictions involved B, the daughter of defendant's girlfriend. In his opening brief, defendant asserts that, under OEC 404(3),1 the trial court erred in admitting uncharged misconduct evidence from B as well as another witness, A, "concerning prior sexual crimes committed by defendant" against them for the "purpose of establishing (1) defendant's identity, (2) defendant's intent, and (3) [to] bolster[ ] [B]'s credibility."
After oral argument, the Supreme Court decided State v. Williams, 357 Or. 1, 346 P.3d 455 (2015), in which it concluded that OEC 404(4)"supersede[s] OEC 404(3) in criminal cases, except * * * as otherwise provided by the state or federal constitutions."2 Id. at 15, 346 P.3d 455. As further discussed below, the court held that, under OEC 404(4), a trial court may admit evidence of a criminal defendant's other crimes, wrongs, or acts if "(1) it is relevant under OEC 401, and (2) as required by the Due Process Clause of the Fourteenth Amendment to the United States Constitution, ‘a trial court determines whether the risk of unfair prejudice posed by the evidence outweighs its probative value under OEC 403.’ "
State v. Horner, 272 Or.App. 355, 357, 356 P.3d 111 (2015) (quoting Williams, 357 Or. at 24, 346 P.3d 455 ). In light of Williams, in a supplemental brief, defendant "challenges admission of the evidence under OEC 403." According to defendant, under Williams, all uncharged misconduct evidence is subject to OEC 403 balancing. And, in defendant's view, in conducting OEC 403 balancing in this case, the trial court erred because it failed to go through the four-step balancing process required by State v. Mayfield, 302 Or. 631, 645, 733 P.2d 438 (1987), and failed to make a record which reflects an exercise of discretion. Defendant also contends that, in any event, the evidence had minimal probative value and that value was substantially outweighed by the danger of unfair prejudice. Therefore, according to defendant, the trial court abused its discretion in refusing to exclude the evidence under OEC 403.3 As explained below, we agree with defendant that the trial court did not properly conduct the balancing required pursuant to OEC 403 and, because it was error to admit the evidence without properly conducting that balancing, we reverse and remand.4
In April 2011, B, who, along with her family, lived in Umatilla County, reported that defendant had sexually abused her. According to B, defendant's abuse had begun when she was about seven years old and had continued over a period of years. During the time when defendant was abusing B, the family had lived in both Umatilla and Clatsop counties and the abuse had occurred in both counties. Based on B's allegations, defendant was indicted in Clatsop County for multiple counts of rape, sodomy, unlawful sexual penetration, and sexual abuse.
Before trial, the state moved to introduce at trial evidence of defendant's prior bad acts. In particular, it sought to introduce evidence of uncharged acts of sexual abuse by defendant against B as well as evidence that defendant had sexually abused A, a daughter of defendant's previous girlfriend.5 The state asserted that the evidence regarding A was relevant "to explain the defendant's motive to molest [B]; to show that the defendant was the instigator; that defendant is following a common plan or scheme, and that the molestation was not an accident or mistake on the part of the defendant." As for B, the state contended that her testimony about defendant's prior abuse would "allow the jury to see a clear, cohesive picture of how defendant perpetuated the abuse for which he has been indicted in Clatsop County." At a pretrial hearing, the state offered testimony from both B and A.
According to B, who was 16 years old at the time of the hearing, defendant had been in a relationship with her mother and had moved in with the family when B was approximately five years old. Defendant's relationship with B's mother lasted for more than nine years, and he was "like a dad" to B. Defendant and B's mother also had two children together. Defendant began sexually abusing B when she was about seven years old, when the family lived in Umatilla County. B testified that defendant began by touching her body, and then escalated his abuse to putting his fingers into her vagina and making her touch his penis. When B was in seventh or eighth grade, the family moved to Clatsop County. After the move, defendant continued to abuse B; she testified that defendant began having sexual intercourse with her soon after the move. In addition, B testified that defendant compared her with her mother, telling her that she had a better body and a better "vagina and boobs" than her mother. B explained that defendant instructed her not to tell other people about his conduct and, according to B, defendant threatened to hurt her if she told.
A, who was 21 years old at the time of the hearing, testified that defendant was in a relationship with her mother for approximately nine years, and that he moved into their family home when A was about two years old.
Defendant and A's mother had a child together who was born when A was three years old. Defendant began sexually abusing A when she was about 10 years old and in the fifth grade. According to A, defendant would insert his fingers into her vagina, kiss her, put his mouth on her vagina, and touch her breasts; he also showed her pornographic videos, made her touch his penis and, on one occasion, had intercourse with her. Defendant also compared A's looks to her mother's, telling her that her "boobs were bigger than [her] mom's." Defendant and A's mother eventually ended their relationship, and A testified that defendant last abused her when she was 13 or 14 years old.
In its argument to the trial court, the state noted the similarities between what happened to B and A:
"[T]he relationship and what happened to the two girls is very similar, the relative age when the defendant started molesting them, the relationship he has to them and some of the things he did, as in molesting with other people in the home, which I think provides a good cover for him, the fact that * * * both of them he compared them to their mother and telling them that they were * * * prettier or had a nicer body or something than their mother, building them up that way."
See State v. Johns, 301 Or. 535, 555–56, 725 P.2d 312 (1986) ( ). The state also argued that, under our case law, in determining whether to admit the prior acts evidence, the trial court was not permitted to balance the probative value of the evidence against the prejudicial effect under OEC 403. According to the state, the court was "prohibited from doing that" balancing.
Defendant, for his part, asserted that the evidence was not offered for any relevant purpose and that it was "mere propensity evidence." Defendant further asserted that, if the evidence was relevant, it was "not of sufficient nature that it would meet the requirements for admissibility under the various tests promulgated for the different method for which the State seeks to offer" it. In response to the state's assertion that the court could not balance the prejudicial effect of the evidence against its probative value under OEC 403, although he acknowledged that "the case law seems pretty clear that [it is] not an issue that the Court's supposed to be considering," defendant nonetheless asserted that the prior acts evidence should "be excluded * * * because its probative value is frankly outweighed by the danger of * * * unfair prejudice." Defendant also noted that, even if it did not conduct that balancing, the court should still evaluate the "question of whether or not this is going to be overly distracting to the jury, overly time consuming, those kinds of things." And, according to defendant, the evidence would add a significant amount of delay to the trial and lead to a great deal of confusion for the jury.
The court took the matter under advisement and later issued a letter opinion addressing the admissibility of the prior acts evidence. The court observed that defendant had "entered a ‘not guilty’ plea to each of the counts alleged in the indictment," and that the state had the burden to prove each element of the charges beyond a reasonable doubt. According to the court, "[i]n recognition of the State's burden, a reasonable jury could infer from Defendant's ‘not guilty’ plea to each charge that the alleged victim is lying, confused or has misidentified the perpetrator" or "has lied about, or is confused about, or has misinterpreted Defendant's intent." Thus, the court stated that the prior acts evidence was "relevant on the issues of identity, intent...
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State v. Baughman
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