State v. Bunting

• Decision Date: 10 September 2003
• Citation: 189 Or. App. 337,76 P.3d 137
• Parties: STATE of Oregon, Respondent, v. Carl Richard BUNTING, Appellant.
• Court: Oregon Court of Appeals

76 P.3d 137

189 Or. App. 337

STATE of Oregon, Respondent, v. Carl Richard BUNTING, Appellant.

99C47823; A108280.

Court of Appeals of Oregon.

Argued and Submitted February 27, 2002.

Decided September 10, 2003.

Meredith Allen, Deputy Public Defender, argued the cause for appellant. With her on the brief was David E. Groom, Public Defender.

Janet A. Klapstein, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before LANDAU, Presiding Judge, and BREWER, Judge, and OSBORNE, Judge pro tempore.

LANDAU, P.J.

Defendant appeals his convictions for sexual abuse in the third degree, ORS 163.415, and furnishing alcohol to a minor, ORS 471.410. He assigns error to the trial court's admission of evidence relating to his 1991 convictions for rape in the third degree and furnishing alcohol to a minor. We agree that admission of the evidence was error and reverse. Defendant was accused of giving his girlfriend's 14-year-old daughter beer and then touching her breast. The incident was alleged to have occurred in December 1998. Defendant denied the allegation and waived jury trial. Before trial, the state moved for admission of evidence relating to defendant's 1991 convictions,¹ arguing that the evidence was admissible, under OEC 404(3) and State v. Johns, 301 Or. 535, 725 P.2d 312 (1986), to show that defendant intended his actions to result in sexual contact with the victim in this case and to show the plan utilized by him to achieve that result. In opposition to the state's motion, defendant argued that the evidence did not meet the criteria set out in Johns and that, in any event, its probative value was outweighed by the risk of unfair prejudice.

The trial court admitted the evidence, with reservations:

"Well I get troubled by these. I'm reading from your memo and my concern is for instance, the factors that are to be considered in determining a probative value versus prejudicial effect, the need for the evidence. My concern is that really all that's happening in these is that you, we're allowing the use of a prior incident that really shows nothing more than their objection, and that is that because he's done this once before, it's highly likely that he's done it this time. Now you can state it in a different way, but that's, it troubles me and that's my concern."

As noted, defendant was convicted.²

On appeal, defendant argues that his theory of defense at trial was not that he touched the victim's breast inadvertently or accidentally, but that he did not touch it at all. He argues that intent therefore was not an issue in the case and that evidence relating to his previous convictions was not relevant. Defendant also argues that the proffered evidence did not meet three of the Johns criteria, relating to the respective victims' "class," the type of acts, and the physical elements of the acts. Lastly, defendant again argues that, even if the Johns criteria were met, the probative value of the evidence was substantially outweighed by the risk of unfair prejudice.

The state responds that intent is an element of defendant's crimes of conviction and that evidence of his previous crimes was admissible under Johns as evidence of such intent. It also argues that, consistently with State v. Leach, 169 Or.App. 530, 9 P.3d 755 (2000), rev. den., 332 Or. 632, 34 P.3d 1179 (2001), the evidence was admissible as evidence of defendant's motive or plan. As to prejudice, the state argues that the probative value of the evidence was not outweighed by the risk of prejudice; the state notes that the case was tried to the court and asserts that, particularly under that circumstance, the evidence met the criteria set out in Johns relating to the certainty that the previous crime was committed, the need for and strength of the evidence, its inflammatory effect, and its time consuming or distracting nature.

OEC 404(3) 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."

Thus, under OEC 404(3), evidence of other crimes is admissible if the evidence is relevant to some issue other than a defendant's predisposition or propensity to commit a crime or other bad act. See State v. Dunn, 160 Or.App. 422, 426, 981 P.2d 809 (1999), rev. den., 332 Or. 632, 34 P.3d 1179 (2001) (the first task of the trial judge is to determine the relevance of the evidence to the issues being tried; the judge should look at all of the issues in the case).³ Where evidence of other crimes is offered under OEC 404(3) as relevant to show a defendant's intent, the evidence must meet the five-part test for relevance set out in Johns. State v. Osborne, 174 Or.App. 88, 91, 25 P.3d 356 (2001). If those criteria are met, the court then determines whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, undue delay, or presentation of cumulative evidence, as provided in OEC 403. Johns, 301 Or. at 556,725 P.2d 312. We review the first two determinations, which are relevancy considerations, for errors of law. State v. Hampton, 317 Or. 251, 254-56, 855 P.2d 621 (1993). We review for abuse of discretion the trial court's determination of whether OEC 403 considerations justify the exclusion of relevant evidence. State v. Barone, 329 Or. 210, 238, 986 P.2d 5 (1999),cert. den., 528 U.S. 1086, 120 S.Ct. 813, 145 L.Ed.2d 685 (2000); see also State v. Bracken, 174 Or.App. 294, 296, 23 P.3d 417,rev. den., 333 Or. 162, 39 P.3d 192 (2001).

Defendant first asserts that the evidence was not relevant because he did not assert at trial that he touched the victim inadvertently or accidentally, and therefore intent was not at issue in this case. As this court noted in Leach:

"[T]here is a substantial and unresolved question as to whether `prior bad acts' evidence can ever be admitted as being relevant to intent where, as here, the defense is that the charged crime never occurred."

169 Or.App. at 534, 9 P.3d 755. However, in Leach, the court determined that it need not resolve that question, because the evidence proffered did not meet the Johns criteria. Therefore, consistently with Leach, we first consider whether the evidence here met the Johns criteria:

"(1) Does the present charged act require proof of intent?

"(2) Did the prior act require intent?

"(3) Was the victim in the prior act the same victim or in the same class as the victim in the present case?

"(4) Was the type of prior act the same or similar to the acts involved in the charged crime?

"(5) Were the physical elements of the prior act and the present act similar?"

Johns, 301 Or. at 555-56, 725 P.2d 312.

Again, defendant argues that the evidence did not meet the third, fourth, and fifth criteria. We need not address whether the evidence meets the third and fourth criteria, however, because we conclude that it did not meet the fifth. In State v. Pratt, 309 Or. 205, 214, 785 P.2d 350 (1990), the court explained that, in applying that criterion, similarities, even if they exist,

"cannot be considered in a vacuum. The circumstances of each crime as a whole must be compared. First, the trial judge must find that there are significant similarities in the physical elements of the two crimes. If that test is met, then the trial judge must consider the differences between the physical elements of the two crimes. The differences may be minimal— for example, the offender may have used different words to indicate his intent. On the other hand, the differences may be so great that they overwhelm the similarities. The point is: The dissimilarities must be as fully considered as the similarities in answering this question.

"Determining what constitutes a significant similarity is a matter to be decided on a case-by-case basis. Some similarities are so common as to be trivial (for example, the offender spoke English during both crimes) while others may be so unusual as to be significant even standing alone (for example, the offender spoke a foreign language when he intended to rape, but spoke English otherwise). Most often the significance of the similarities will arise out of their combination."

See also State v. Sheets, 160 Or.App. 326, 331, 981 P.2d 815 (1999), rev. den., 332 Or. 632, 34 P.3d 1179 (2001) ("The similarities * * * between the two [acts] have no legal significance under OEC 404(3) unless they have a tendency to make it more probable that [the] defendant acted intentionally or knowingly.").

According to the state's motion to admit evidence relating to defendant's 1991 convictions, the incident leading to those convictions consisted of the following physical elements: Defendant, who was then 24 years old, and his high-school-aged brother "arranged to pick up" two female high school students. Defendant "made alcohol available" to one of the girls, aged 14, then took her into a bedroom and engaged in sexual intercourse with her.⁴

By comparison, in this case, the victim was the daughter of defendant's girlfriend. The state alleged that, while defendant and the victim were watching television together, defendant provided alcohol to the victim, then touched her clothed breast. Thus, although defendant provided alcohol to each of the victims, other circumstances of the two incidents were not similar, including the relationship between defendant and the victim and, particularly, the type of touching involved. In short, the physical elements of the 1991 act, considered as a whole, were not sufficiently similar to those of the currently charged act to be probative of defendant's intent. Compare State v. Cockrell, 174 Or. App. 442, 449, 26...