State v. Davis

• Decision Date: 14 February 2018
• Docket Number: A157318
• Citation: 414 P.3d 887,290 Or.App. 244
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Thomas Alan DAVIS, Jr., Defendant-Appellant.
• Court: Oregon Court of Appeals

290 Or.App. 244

414 P.3d 887

STATE of Oregon, Plaintiff-Respondent,

v.Thomas Alan DAVIS, Jr., Defendant-Appellant.

A157318

Court of Appeals of Oregon.

Argued and submitted April 28, 2016.

February 14, 2018

David O. Ferry, Deputy Public Defender, argued the cause for appellant. With him on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

David B. Thompson, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

GARRETT, J.

Defendant appeals a judgment of conviction for first-degree kidnapping, first-degree attempted sexual abuse, and fourth-degree assault. The charges arose from an incident in which defendant attacked a woman while she was jogging and pushed her into a ditch; the victim fought him off and defendant left the scene. Although defendant did not say or do anything during the attack that unequivocally suggested a sexual purpose, the state alleged that defendant had intended to subject the victim to sexual contact. In support of that theory, the state offered evidence of two handwritten notes, both describing a desire to engage in violent sexual acts, that defendant wrote and left for two other women, also strangers to him. The trial court admitted that evidence over defendant's objection for the purpose of showing the sexual motive for defendant's attack on the victim. On appeal, defendant assigns error to that ruling. Defendant also assigns error to the trial court's denial of his motion for a judgment of acquittal (MJOA) on the attempted sexual abuse count, arguing that the record contained insufficient evidence to prove that he intended to sexually abuse the victim when he attacked her.

We agree with defendant that the trial court erred by admitting the notes. As explained below, the two notes were not admissible as noncharacter evidence of "motive," as that term is used in OEC 404(3). Rather, the logical relevance of the notes depends on a character-based inference, i.e. , that defendant has a propensity to commit acts of sexual violence against female strangers. On appeal, the state argues that, even so understood, the evidence was admissible propensity evidence under OEC 404(4) and State v. Williams , 357 Or. 1, 346 P.3d 455 (2015). However, the state did not offer the notes as character evidence below, and we decline to consider that argument for the first time on appeal. Accordingly, we reverse and remand. With respect to defendant's second assignment of error, we conclude that the trial court did not err in denying his MJOA, and defendant is not entitled to outright reversal on the attempted sexual abuse count.

We review a trial court's determination that evidence is relevant for legal error, State v. Titus , 328 Or. 475, 481, 982 P.2d 1133 (1999), "in light of the record that was before the court at the time it made its decision," State v. Jones , 285 Or.App. 680, 682, 398 P.3d 376 (2017). Because defendant appeals from a judgment of conviction, "we state the relevant background facts in the light most favorable to the state." State v. Woods , 284 Or.App. 559, 561, 393 P.3d 1188, rev. den. , 361 Or. 801, 400 P.3d 926 (2017).

On December 27, 2012, the victim, M, went for a run near her home. She wore a jacket and jogging pants, and she listened to music while she ran. As she was running down the sidewalk, defendant tackled her from behind, and she blacked out. She could feel defendant "dragging" her, and when she became fully alert, she was face down in a shallow ditch near the sidewalk. The ditch was next to an area with tall grass, brush, and trees. M was able to flip her body over, and she began to fight defendant, who stood over her and held one of her hands down. Using her other hand, M tried to hit defendant and then shoved two of her fingers into his mouth. At that point, defendant stood up and ran away. As a result of the attack, M suffered abrasions, cuts, and an injury to her shoulder.

Defendant was indicted on one count of first-degree kidnapping, ORS 163.235 ; one count of attempted first-degree sexual abuse, ORS 163.427 and ORS 161.405 ; and one count of fourth-degree assault, ORS 163.160. With respect to the attempted sexual-abuse count, the state alleged that defendant "did unlawfully and intentionally attempt to subject [M] to sexual contact by means of forcible compulsion."

M testified at trial that she could not identify her attacker. Defendant's theory of defense was that police had arrested the wrong person. Defendant also argued that, regardless of who attacked M, there was no evidence of any intent to subject M to sexual contact.

The state presented no direct evidence of actual or attempted sexual contact. The state's theory was that the victim had fought defendant off before he could make his sexual purpose unmistakable. As circumstantial evidence of defendant's intent during the assault, the state offered two notes that defendant had left on cars in two different Target parking lots. Both notes were left for women who defendant did not know. One of the notes was left on December 17, 2012, 10 days before the attack, and the other was left approximately two months earlier. The two notes are very similar: Both are written in the second person (using the words "you" and "your"), both graphically describe the women's bodies, and both express, in nearly identical terms, a desire to engage in anal intercourse with the women in a way that would cause them pain. It is undisputed that defendant wrote the notes; however, there is no evidence in the record that he ever approached or tried to make physical contact with either woman.

At defendant's trial, the state offered the notes to prove that defendant's motive in attacking M was to subject her to forcible sexual contact. The state made clear that it was offering the notes "solely" to prove defendant's "intent," explaining its need for the evidence as follows:

"The DNA evidence is very powerful and there's some corroboration that backs it up, so identity is going to be strong. But * * * defendant's intent in terms of sexually assaulting [M], although some may think it's obvious, there really isn't any hard evidence of that. * * * [M] fought [defendant] so ferociously and so courageously that [defendant] didn't have a chance to get his hand actually on her breasts or genitalia or buttocks in a way that would allow us to definitively by his actions determine that he—and he didn't—likewise, he didn't utter any words to her. He didn't say anything that would clearly allow me to argue that this was a sexual assault or an attempted sexual assault."

The state later characterized the notes as a clear expression of defendant's intent to sexually assault a female stranger.

Defendant argued that the notes were irrelevant. See OEC 401 (defining relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence").¹

Defendant also argued that, even if the notes have some relevance, under OEC 403, any probative value was substantially outweighed by the danger of unfair prejudice. Defendant reasoned that the state was attempting to use the notes to persuade the jury that defendant is a "creep" and a "scum bag," permitting the jury to "jump to [the] conclusion" that defendant had a sexual purpose "when there's no evidence in this actual case" of sexual intent.

The trial court admitted the notes under OEC 404(3) for what it called the "noncharacter purpose" of explaining "what conscious purpose or what motive, if any, that [defendant] had in engaging in a kidnapping and assault"—in other words, "to distinguish whether or not the goal was sexual assault or simply a physical assault." The court reasoned that there was a "great need for the evidence because there was no relationship between defendant and the victim," and there was "really no other way for [the jury] to understand in the context of these facts how or why the occurrence might have happened."

At the close of the state's evidence, defendant moved for a judgment of acquittal on the attempted sexual abuse charge. Defendant argued that, up until the court allowed the notes into evidence, the state had not "present[ed] one piece of circumstantial or direct evidence as to the intent of the person who committed this crime," and that there was "absolutely nothing in the record * * * to suggest that" the motive was sexual abuse. With regard to the notes in particular, defendant argued that the "fact that [defendant] is a heterosexual that likes sex cannot be used or even associated with trying to discern the motive [for the attack]."

The trial court denied defendant's motion. The court reasoned that a reasonable juror could conclude that defendant's purpose was to commit a sexual assault "because of the very particular circumstances in which the attack occurred," including the evidence that defendant had attempted to move M to a "place of secretion off the side of the road," and the lack of any evidence that M was wearing a watch, jewelry, or other items of obvious value that could have been the object of a robbery.²

On appeal, defendant largely reprises the arguments that he made below.

We begin with defendant's first assignment of error, in which he challenges the trial court's admission of the notes for the noncharacter purpose of proving motive under OEC 404(3). Defendant contends that the notes are not probative of motive under OEC 404(3) because his mere expression of a desire for "rough anal sex" with the two recipients of the notes, without evidence of actual or attempted physical contact with those two women, "cannot reasonably support any permissible inference regarding defendant's specific intent during...