State v. Baughman

Decision Date27 April 2017
Docket NumberSC S064086,CC 111306
Parties STATE of Oregon, Petitioner on Review, v. Russell Allen BAUGHMAN, Respondent on Review.
CourtOregon Supreme Court

361 Or. 386
393 P.3d 1132

STATE of Oregon, Petitioner on Review,
Russell Allen BAUGHMAN, Respondent on Review.

CC 111306
SC S064086

Supreme Court of Oregon.

Argued and submitted November 14, 2016.
April 27, 2017

Doug M. Petrina, Assistant Attorney General, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Kristin A. Carveth, Deputy Public Defender, Salem, argued the cause for respondent on review. Eric Johansen, Deputy Public Defender, filed the brief. Also on the brief was Ernest G. Lannet, Chief Defender, Office of Public Defense Services.

Before Balmer, Chief Justice, and Kistler, Walters, Landau, Brewer, and Nakamoto, Justices, and Baldwin, Senior Justice, Justice pro tempore.**


361 Or. 388

In this case we explain that, in a criminal action, when the state proffers evidence of uncharged acts, either to prove a defendant's propensity to commit charged crimes

393 P.3d 1135

under OEC 404(4),1 or for a nonpropensity purpose under OEC 404(3),2 and a defendant objects to the admission of that evidence, the trial court must conduct balancing under OEC 403,3 according to its terms, to determine whether the probative value of the challenged evidence is substantially outweighed by the danger of unfair prejudice. We affirm the decision of the Court of Appeals, State v. Baughman , 276 Or.App. 754, 369 P.3d 423 (2016), reverse the trial court's judgment of conviction, and remand this case to the trial court for further proceedings.


Defendant was charged with 12 counts of child sexual abuse. The state alleged that defendant had abused the victim, B, in Clatsop County.

Before trial, the state filed a motion to permit it to introduce evidence that defendant also had sexually abused another child, A. The state argued that that evidence was relevant for a number of nonpropensity purposes under

361 Or. 389

OEC 404(3) —to establish defendant's intent, motive, common plan or scheme, and the absence of mistake or accident. Defendant countered that, because his defense was not mistaken identity or lack of intent, but, instead, that the charged acts of abuse had not occurred, the proffered evidence was not relevant for a nonpropensity purpose. Further, defendant argued, even if the evidence was minimally relevant, its probative value was substantially outweighed by the danger of unfair prejudice and it was therefore inadmissible under OEC 403.

Both A and B testified at the hearing on the state's motion. B testified that, when she was about five years old, defendant had entered into a relationship with her mother and moved into their family home in Umatilla County. Defendant began to sexually abuse B when she was seven years old and still living in Umatilla County. The abuse began with sexual touching, and, by the time B was 12 and living in Clatsop County, defendant had begun to abuse her "over and over again[,] repeatedly." B testified that defendant had touched her sexually, forced her to touch him sexually, and, in Clatsop County, repeatedly had forced her to have intercourse with him.

A, the second child, testified that defendant's abuse of her also had occurred while defendant was in a relationship with her mother and living with them in their family home. A was in fifth grade when the abuse began. The abuse, including the sexual touching of both defendant's and A's sexual or intimate parts, had continued until she was 13 or 14 years old.

After the hearing, the trial court issued a letter opinion. The court agreed with the state that defendant's abuse of A was relevant to prove defendant's "identity, intent and to bolster the credibility of the victim," and was admissible under OEC 404(3). With respect to the issue of intent, the court explained that it had conducted an analysis under State v. Johns , 301 Or. 535, 555-56, 725 P.2d 312 (1986), and determined, among other things, that defendant's acts against A were similar to his acts against B, and that the evidence about A was being offered for a nonpropensity purpose, was not "overly inflammatory,"

393 P.3d 1136

and could be

361 Or. 390

presented without undue confusion, distraction, or unreasonable delay.

Later, but also before trial, the state filed a written motion to permit it to introduce evidence of defendant's uncharged acts of sexual abuse against B in Umatilla County. The state asserted that that evidence would "allow the jury to see a clear, cohesive picture of how defendant perpetuated the abuse for which he ha[d] been indicted in Clatsop County." That evidence, the state represented, included the acts of abuse to which B had testified at the prior hearing and also the fact that defendant had told B that, if she ever told anyone about the abuse, he would hurt her, and that he had been physically abusive to her.

Defendant opposed the state's motion and asserted that it was untimely and required a hearing. The trial court responded that it had assumed, from the prior hearing, that the evidence of the uncharged abuse of B would be admitted to explain to the jury "the path leading up to" the charged crimes, but that the evidence also was admissible for the same reasons that the court had articulated in permitting the evidence of defendant's abuse of A.

At trial, both A and B testified consistently with their pretrial testimony. At the close of evidence, the court instructed the jury that it could consider the uncharged abuse of A only as evidence of defendant's intent in abusing B. The court did not give the jury a limiting instruction regarding the purposes for which it could consider the uncharged abuse of B.

The jury convicted defendant of eight of the 12 charges. Defendant appealed to the Court of Appeals and argued that the trial court had erred in admitting the evidence of the uncharged abuse of both A and B as nonpropensity evidence under OEC 404(3). While the case was pending before that court, this court decided State v. Williams , 357 Or. 1, 346 P.3d 455 (2015).

In Williams , this court considered the interplay between three evidentiary rules: OEC 404(3), OEC 404(4), and OEC 403. OEC 404(3) makes other acts evidence

361 Or. 391

inadmissible to prove a defendant's character or propensity to commit the charged crime. It 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."

OEC 404(3).

OEC 404(4) was enacted after OEC 404(3). It makes relevant other acts evidence admissible in criminal actions, subject to specified exceptions. It 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."

OEC 404(4).

In Williams , the court recognized the conflict between those two rules and held that the "legislature intended OEC 404(4) to supersede OEC 404(3) in criminal cases," and to permit the admission of other acts evidence to prove a defendant's propensity to commit a charged crime of sexual abuse. 357 Or. at 15, 346 P.3d 455. The court also concluded, however, that OEC 404(4)(a) made the admission of such evidence subject to specified evidentiary rules, including OEC 403. Id . at 19, 346 P.3d 455. OEC 403 permits a court to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. It 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
361 Or. 392
jury, or by considerations of undue delay or needless presentation of cumulative evidence."
393 P.3d 1137

OEC 403. In Williams , the court reasoned that OEC 404(4)(a) made OEC 403 applicable "to the extent required by the United States Constitution," and concluded that, "in a prosecution for child sexual abuse, the [United States Supreme] Court would hold that subjecting proffered ‘other acts' evidence to OEC 403 balancing is a due process requirement." Id . at 15-18, 346 P.3d 455. That balancing, the court explained, was balancing to "determine whether the probative value of the evidence is outweighed by the risk of unfair prejudice." Id . at 19, 346 P.3d 455. The court expressly reserved, however, the question whether...

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