State v. Brumbach

• Decision Date: 10 September 2015
• Docket Number: 11FE0489,A151863.
• Citation: 273 Or.App. 552,359 P.3d 490
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Richard Wayne BRUMBACH, Defendant–Appellant.
• Court: Oregon Court of Appeals

273 Or.App. 552

359 P.3d 490

STATE of Oregon, Plaintiff–Respondent

v.Richard Wayne BRUMBACH, Defendant–Appellant.

11FE0489

A151863.

Court of Appeals of Oregon.

Submitted May 30, 2014.

Decided Sept. 10, 2015.

Peter Gartlan, Chief Defender, and Neil F. Byl, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. On the supplemental brief were Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Neil F. Byl, Deputy Public Defender, Office of Public Defense Services.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent. On the supplemental brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General.

Before ARMSTRONG, Presiding Judge, and NAKAMOTO, Judge, and EGAN, Judge.

Opinion

EGAN, J.

Defendant appeals a judgment of conviction for three counts of sexual abuse in the first degree, ORS 163.427.¹ In supplemental briefing submitted after the Supreme Court's recent decision in State v. Williams, 357 Or. 1, 346 P.3d 455 (2015), defendant argues that, under Williams, the trial court erred when it allowed the state to present evidence of defendant's other acts—that is, evidence of his misconduct that was not the subject of the present charges—without balancing the danger of unfair prejudice posed by that evidence against its probative value.² The state responds that defendant's argument is unpreserved or, even if it is preserved and the court erred, then the error was harmless. We conclude that defendant's argument is preserved. Moreover, we agree that the court erred and that error was not harmless.³ Accordingly, we reverse and remand.

We evaluate the denial of a defendant's motion to exclude evidence of other acts in light of the record made before the trial court when it issued the order, not the trial record as it may have developed at some later point. State v. Pitt. 352 Or. 566, 575, 293 P.3d 1002 (2012). However, when determining whether the erroneous admission of evidence was harmless, “we describe all pertinent portions of the record.” State v. Cunningham, 179 Or.App. 359, 361 n. 2, 40 P.3d 1065 (2002), rev'd on other grounds, 337 Or. 528, 99 P.3d 271 (2004).

The relevant facts are undisputed. The state alleged that defendant compelled the victim, his granddaughter, to fondle his erect penis on three separate occasions. The state charged defendant with three counts of sexual abuse in the first degree for those acts, which he allegedly committed in 2004 and 2005 when his granddaughter was between the ages of six and eight. At the time of trial, defendant had already pleaded guilty and been convicted of attempted sexual abuse in the first degree for acts committed against the same child in 2006 (the 2006 incident). Defendant had also been convicted of three counts of sexual abuse in the third degree for acts committed against three other young girls in 1998 (the 1998 incidents).

Before the trial, the state filed a motion in limine seeking to admit evidence of defendant's convictions for the 2006 incident and the 1998 incidents to show defendant's intent to commit sex abuse under OEC 404(3)⁴ and OEC 404(4).⁵ In its motion, the state described those incidents and argued that they were sufficiently similar to the acts at issue in the charged crimes, as required under the test articulated in State v. Johns, 301 Or. 535, 725 P.2d 312 (1986) (establishing a test to show a defendant's intent based on conceded other acts that does not require impermissible character inferences).⁶ The trial court ruled that the state could mention the 2006 incident in its opening statement, but could not mention defendant's conviction or discuss the details of the 2006 incident. Other than allowing that reference, the court reserved its ruling on the remainder of the evidence.

Later in the trial, the state sought admission of the judgment of conviction relating to the 2006 incident and the testimony of a detective describing the particulars of that incident. Defendant objected, stating:

“I think that the court at this point is obligated to take [an OEC] 104 hearing and to determine whether * * * this happened, how it's related to the case, whether it is deemed relevant and whether or not the prejudicial value would substantially outweigh its marginal relevance to the case at this time.”

In response, the state argued that the evidence was admissible to show intent under the Johns test and argued that the evidence was also relevant to show that defendant had a sexual interest in his granddaughter and to explain why she delayed in reporting the conduct alleged in the present case. Defendant contended that the 2006 incident was not relevant to show defendant's intent during the charged acts because defendant denied that the charged acts had occurred and, moreover, the 2006 act was not sufficiently similar to the charged acts under the fourth Johns factor. The court found that each of the Johns factors favored admission and that the evidence was relevant “with regard to whether in fact these acts occurred,”⁷ before ultimately concluding that the evidence was, therefore, admissible.

After the court stated that conclusion, the following exchange occurred:

“[DEFENSE COUNSEL]: [I]s the court also ruling that the prejudicial value is not—or I guess is—outweighed by its relevance?

“THE COURT: Arguably that's the [OEC] 403^{[ 8 ]} balancing test that you're requesting the court make, and the court is ruling that this comes in under [OEC] 404(4), which doesn't require the balancing to be occurred [sic ]. Both the Court of Appeals as well as the Supreme Court have reiterated that over and over again to the trial courts, that the balancing does not occur.

“Clearly it is prejudicial. From the court's perspective it is prejudicial without a doubt. So—

“[DEFENSE COUNSEL]: The question then, Judge, is the prejudice unfair? And I understand that—I would like to lodge a continuing objection for the purposes of this witness' testimony and going forward so I'm not bouncing up and down.”

The court acknowledged defendant's continuing objection.

Later in the trial, the state introduced recordings of interviews between defendant and a detective that followed defendant's arrest for the charged acts. Defendant did not initially object to that evidence. In the course of one recording, defendant referred to the 1998 incidents stating, “And I wouldn't want to see any lasting harm come to anybody—any of the girls that I touched.” At that point, defense counsel objected, the jury was excused, and the parties made arguments regarding the admission of evidence of the 1998 incidents. Defense counsel stated:

“Again, I've objected to the introduction of testimony about that case as well as the convictions in this particular case. These are prior bad acts. These are prior bad acts that, again, as the court's—and I'm not going to hide that it has very high prejudicial value.

“I think that the degree—or the age of the cases, the differentiation between the cases, the manner in which [defendant] was questioned and his ongoing treatment, I think that there's a more—there's a higher likelihood that using this information that the jury would take an unfair position and find that—or I think the jury would be more likely to misuse this evidence and argue that—or find that because—or think that because [defendant] is who he is that this—these allegations necessarily must have taken place.

“So again, Your Honor, we've consistently been objecting to the introduction of all of these three—primarily these three bad acts.”

The court overruled defense counsel's objection, concluding that it was appropriate to admit further evidence of the 1998 incidents, including the judgment of conviction and the age of one of the victims. The state then continued to play the recorded interviews. In the course of the remaining recorded interviews, defendant discussed his sexual attraction to children, in general, and his sexual attraction to his granddaughter, in particular.

On appeal, defendant contends that the trial court was required to subject evidence of his other acts to balancing as described in Williams. The state argues that defendant failed to preserve his argument before the trial court.

A brief overview of the state of the law related to OEC 403, OEC 404(3), and OEC 404(4) at the time of the trial provides useful context for the discussion of preservation in this case.

State v. Dunn. 160 Or.App. 422, 981 P.2d 809 (1999), rev. den., 332 Or. 632, 34 P.3d 1179 (2001), began a line of cases in our court interpreting OEC 404(4). In Dunn, the defendant was charged with first-degree robbery and kidnapping following an incident in which a man held a knife to the throat of a female convenience store clerk, ordered her out of the store, and did not take any money from the open cash register. Id. at 424, 981 P.2d 809. The state argued for admission of evidence under OEC 404(4) to show that the defendant had a propensity to commit crimes of the sort for which he was charged, including evidence that, 15 years before the charged conduct, the defendant had entered a van in which a husband and wife were sleeping, ordered the wife out of the van at gunpoint, and had not attempted to steal anything. Id. at 427, 981 P.2d 809. Additionally, the state sought to introduce evidence that swords, a crossbow, a poster of thirteenth century weapons, and a book about serial killers were found in the defendant's home and testimony of a “crime investigative analyst” that the items found in the defendant's home combined with his past conduct showed that the defendant had a fantasy life that centered on dominance and control. Id. at 424–25, 981 P.2d 809.

Consequently in Dunn, we confronted the question whether the recently enacted OEC 404(4) made admissible “evidence that is relevant only to show [ ] that a person has a propensity...