State v. Cave

• Citation: 321 Or.App. 81,516 P.3d 279
• Decision Date: 27 July 2022
• Docket Number: A172641
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Jack Allen CAVE, Defendant-Appellant.
• Court: Court of Appeals of Oregon

321 Or.App. 81

516 P.3d 279

STATE of Oregon, Plaintiff-Respondent,

v.Jack Allen CAVE, Defendant-Appellant.

A172641

Court of Appeals of Oregon.

Argued and submitted September 21, 2021.

July 27, 2022

Thaddeus Betz, Bend, argued the cause and filed the briefs for appellant.

David B. Thompson, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Mooney, Presiding Judge, and Hellman, Judge, and DeVore, Senior Judge.^*

HELLMAN, J.

This case, in which defendant was convicted of sex crimes committed against two of his granddaughters, is before us for a second time.¹ We previously reversed and remanded the case after we determined that the trial court erred in admitting testimony, on multiple nonpropensity theories under OEC 404(3), from defendant's adult daughter, J, that defendant had also sexually abused her when she was a child. State v. Cave , 298 Or App 30, 41, 445 P.3d 364 (2019). On remand, the trial court reinstated the original judgment after determining that J's testimony was admissible based upon different nonpropensity purposes under OEC 404(3) and that the probative value of the testimony outweighed any unfair prejudice under OEC 403. See State v. Baughman , 361 Or. 386, 410-11, 393 P.3d 1132 (2017) (explaining analysis upon remand in these circumstances).

On appeal, defendant assigns error to the trial court's ruling on remand that J's testimony was admissible as nonpropensity evidence under OEC 404(3) and argues that, as a result, the trial court subsequently overestimated the probative value and underestimated the prejudice of that evidence under OEC 403. The state now correctly concedes that its theories for admissibility of J's testimony depend on propensity-based reasoning and that the trial court erred in admitting that evidence under OEC 404(3). The state argues, however, that the trial court's erroneous conclusion that J's testimony was admissible under OEC 404(3) does not invalidate the court's OEC 403 balancing where the court ultimately understood that the evidence was being used for propensity purposes—to show defendant's sexual interest in children.

Upon review of this record, we agree with defendant that the trial court's error cannot be reduced to one of "mislabeling" and that the trial court's balancing under OEC 403 was not based on an evaluation of that evidence as propensity evidence. We ultimately conclude that the trial court erred in admitting the evidence under OEC 404(3) and, for the reasons below, reverse and remand.²

The facts relevant to this appeal are undisputed and largely relate to the parties' arguments to the trial court on remand and how the trial court understood those arguments.

On remand, we directed the trial court to engage in the analysis described in Baughman to consider the admissibility of defendant's prior uncharged sexual abuse of his daughter under OEC 404(3), OEC 404(4), and OEC 403. Cave , 298 Or App at 43, 445 P.3d 364. Under that analysis, a trial court should first determine whether evidence is admissible under OEC 404(3) for a nonpropensity purpose.³ Baughman , 361 Or. at 404, 393 P.3d 1132. If it is, the trial court then engages in OEC 403 balancing by determining whether the probative value of that evidence is substantially outweighed by the danger of unfair prejudice. Id. If the trial court determines that the evidence is not admissible for a nonpropensity purpose, it should then determine, first, whether the evidence is admissible under OEC 404(4)⁴ as propensity evidence and then, second, whether the probative value of the propensity evidence is substantially outweighed by the danger of unfair prejudice under OEC 403. Id. at 404-05, 393 P.3d 1132.

A precise determination about the legal basis for admitting certain evidence is not an academic exercise in "labeling." Whether the evidence is understood as being admitted as nonpropensity evidence under OEC 404(3) or as propensity evidence under OEC 404(4) has "a significant effect on whether the trial court admits that evidence" under OEC 403. Id. at 405, 393 P.3d 1132. When evidence is relevant only to prove a defendant's character as propensity evidence, "more significant due process concerns are implicated, and, generally, the danger of unfair prejudice will substantially outweigh the probative value of the evidence." Id. Thus, the initial determination about the category of evidence has real-world implications for its admissibility.

On remand, the state argued that J's testimony was admissible under both OEC 404(3) and OEC 404(4). First, the state argued that evidence that defendant had previously sexually abused his daughter was relevant under OEC 404(3) for the nonpropensity purpose of showing defendant's sexual interest in children. The state argued that evidence that defendant had previously sexually abused children made it more likely that he acted with a sexual purpose toward his granddaughters in the charged instances. Second, the state argued that J's testimony was relevant to impeach defendant's and witnesses' testimony that defendant generally behaved with propriety around children. Third, the state argued that J's testimony was admissible under OEC 404(4) to show defendant's sexual interest in children as propensity evidence in a child sex abuse case. See State v. Williams , 357 Or. 1, 20, 346 P.3d 455 (2015) (explaining that, in child sex abuse cases, other acts evidence used to prove character and propensity may be admissible under OEC 404(4) depending on subsequent OEC 403 balancing).

While engaging in the first step of the Baughman analysis, the trial court agreed with the state that J's testimony was admissible under OEC 404(3) for the nonpropensity purposes of showing defendant's sexual purpose when touching his granddaughters and for impeaching witnesses' testimony of defendant's sexual propriety. When subsequently weighing the probative value of the evidence under OEC 403, the trial court found the "[s]tate's need for the evidence to be very high" in light of the state's need to prove that defendant acted with a "sexual purpose" for the sexual abuse charges and to counter defendant's own presentation of evidence regarding his innocent touching of children. The trial court determined that the probative value outweighed any potential prejudice of "confusion of the issues" or "misleading the jury."

The trial court then expressly declined to consider the state's argument that the evidence was admissible for propensity purposes under OEC 404(4), explaining:

"The third issue is whether the evidence was admitted for a propensity purpose, and I don't think they're going to reach that issue because it wasn't admitted for a propensity purpose. Wasn't offered for a propensity purpose, it wasn't received for propensity purpose , and it's not necessary for the Court to reach this issue, and I'm not going to reach the issue because it was offered and received, as I've just outlined, for the nonpropensity purposes that I've discussed."

(Emphases added.)

We review the trial court's determination that evidence of uncharged misconduct qualifies for admission under OEC 404(3) or OEC 404(4) for legal error. State v. Terry , 309 Or App 459, 461, 482 P.3d 105 (2021).

We begin by acknowledging that since our earlier decision in this case, we have clarified the boundaries for the admissibility of sexual purpose evidence under OEC 404(3). We have explained that, regardless of whether evidence is offered to show a defendant's "sexual purpose" in committing the charged offense, that evidence is inadmissible under OEC 404(3) if the theory of admissibility reduces to an argument about the defendant's character. State v. Nolen , 319 Or App 703, 710, 511 P.3d 1110 (2022) ; State v. Levasseur , 309 Or App 745, 753, 483 P.3d 1167, adh'd. to as modified on recons. , 312 Or App 733, 489 P.3d 630, rev. den. , 368 Or. 788, 498 P.3d 300 (2021). Thus, if the state's theory of admissibility requires the factfinder to infer from defendant's prior actions that he was more likely to have acted with the same purpose in the charged instance, that evidence is propensity evidence and inadmissible under OEC 404(3). Levasseur , 309 Or App at 753, 483 P.3d 1167 (relying on State v. Skillicorn , 367 Or. 464, 483, 479 P.3d 254 (2021) ).

On appeal, the state concedes that both theories of admissibility it presented on remand—to show defendant's sexual purpose and to impeach testimony of defendant's sexual propriety—relied on propensity reasoning and J's testimony was inadmissible under OEC 404(3). That concession reflects the progression in our case law since our preceding opinion in this case, in which we contemplated that

"[w]hether evidence establishing a defendant's sexual purpose toward a child is propensity or nonpropensity evidence is a question that has not yet been resolved by the Supreme Court, and it is the subject of significant confusion."

Cave , 298 Or App at 42 n 9, 445 P.3d 364.

Although we understand that the trial court on remand was likely operating with that same understanding, we agree with the parties that, as informed by subsequent case law, the trial court erred in admitting the challenged evidence as nonpropensity evidence under OEC 404(3). To the extent that J's testimony was admissible, it was admissible as propensity evidence under OEC 404(4), not as nonpropensity evidence under OEC 404(3).

As we understand it, the state now argues that, for purposes of affirming the trial court's OEC 403 balancing, it does not matter whether the trial court admitted the evidence under the "label" of nonpropensity evidence through OEC 404(3) or as propensity evidence through OEC 404(4), because the probative value of the evidence is the same where the trial court understood the evidence to show that the defendant had a sexual purpose in both instances. Where the probative value of the evidence remains the same...