State v. Davis

Decision Date25 May 2022
Docket NumberA169891
Parties STATE of Oregon, Plaintiff-Respondent, v. Thomas Alan DAVIS, Jr., Defendant-Appellant.
CourtOregon Court of Appeals

David O. Ferry, Deputy Public Defender, argued the cause for appellant. Also on the brief 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. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Tookey, Presiding Judge, and Lagesen, Chief Judge, and Armstrong, Senior Judge.*

TOOKEY, P. J.

This case is before us for a second time. In defendant's first appeal, we reversed and remanded the case after determining that certain evidence—viz. , two notes written by defendant, both describing a desire to engage in violent sexual acts, that defendant left for two strangers—had been erroneously admitted under OEC 404(3), which permits admission of evidence of other crimes, wrongs, or acts for a nonpropensity purpose only.1 State v. Davis , 290 Or. App. 244, 414 P.3d 887 (2018). On remand, the trial court reinstated the original judgment after determining that the notes were admissible under OEC 404(4) and that the probative value of the notes outweighed any unfair prejudice under OEC 403.2 See State v. Baughman , 361 Or. 386, 410-11, 393 P.3d 1132 (2017) (explaining remand in these circumstances).

On appeal, in his first assignment of error, defendant assigns error to the trial court's ruling on remand that the notes were admissible. He argues, among other points, that the trial court erred under OEC 403 in determining that the probative value of the notes outweighed the substantial risk of unfair prejudice that their admission into evidence created.

We conclude that the trial court abused its discretion when it determined that the probative value of the notes was not substantially outweighed by the danger of unfair prejudice to defendant under OEC 403. Consequently, we reverse the trial court's determination that the notes were admissible and remand. As a result, we need not reach defendant's other assignments of error.

I. HISTORICAL AND PROCEDURAL FACTS
A. The Notes

Prior to the event giving rise to the charges against defendant in this case, defendant left handwritten notes on the cars of two female strangers at two different Target store parking lots. One of those notes was left 10 days prior to the event giving rise to the charges against defendant in this case, and the other note was left approximately two months prior to that event. During defendant's first appeal, we explained that the notes described "a desire to engage in violent sexual acts," and more specifically, we explained:

"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."

Davis , 290 Or. App. at 246, 248, 414 P.3d 887.

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.

B. The Event Giving Rise to Charges Against Defendant and Defendant's Trial

During defendant's first appeal, we summarized the historical facts leading to the charges against defendant as follows:

"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."

Id. at 247, 414 P.3d 887.

As a result of that conduct, defendant was charged with one count of first-degree kidnapping, ORS 163.235 (Count 1); one count of attempted first-degree sexual abuse, ORS 163.427, ORS 161.405 (Count 2); and one count of fourth-degree assault, ORS 163.160 (Count 3).

As to the charge of attempted first-degree sexual abuse, Count 2, the state alleged that defendant unlawfully and intentionally attempted to subject M to sexual contact by means of forcible compulsion. ORS 163.427 ; ORS 161.405. The state's theory with regard to that count was that M had fought defendant off before he could make his sexual purpose unmistakable.

During defendant's trial, the state presented no direct evidence of actual or attempted sexual contact with M, but offered the two notes, described above, that defendant had left on women's cars in Target parking lots. The state argued that the notes were admissible because they were relevant for the purpose of proving "that defendant's motive in attacking M was to subject her to forcible sexual contact." Davis , 290 Or. App. at 248, 414 P.3d 887. The state made clear that it "was offering the notes ‘solely’ to prove defendant's ‘intent,’ " and characterized the notes as "a clear expression of defendant's intent to sexually assault a female stranger." Id.

Defendant responded that the notes were irrelevant under OEC 401, and, in the alternative, that even if the notes had some relevance, any probative value was substantially outweighed by the risk of unfair prejudice under OEC 403. Id. at 248-49, 414 P.3d 887.

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.’ " Davis , 290 Or. App. at 249, 414 P.3d 887 (brackets in Davis ). The trial court instructed the jury that the notes could be considered only for their relevance to defendant's motive for attacking M:

"As regards the statements attributed to defendant in [the notes he left for the female strangers], those statements may only be considered for their value, if any, in determining the defendant's motive in committing the alleged crimes.
"These statements may be considered only if the jury has first determined that defendant is, in fact, the person involved in the alleged crimes."

Additionally, during defendant's trial, M testified at trial that she could not identify her attacker, and the state presented DNA evidence connecting defendant to the scene.

Defendant was convicted on all counts, and he appealed the resulting judgment.

C. Defendant's First Appeal

In defendant's first appeal, we held that the court committed reversible error in admitting the notes as "noncharacter evidence" under OEC 404(3). Id . at 249, 258, 414 P.3d 887. We explained that

"a crucial difference between permissible motive-based reasoning and a character-based theory of motive is that the former assumes that a motive might exist because any person might possess one under those specific circumstances. The tendency to have such a motive is simply human ; it does not derive from a trait of character specific to the person involved in the trial. By contrast, character-based reasoning is based on inferred behavioral disposition or propensities, and it relies upon a chain of inferences that employs the evidence to establish that the person (1) is more inclined to act or think in a given way than is typical, and (2) is therefore more likely to have acted or thought that way on a particular occasion."

Id. at 252-53, 414 P.3d 887 (internal quotation marks, citations, and brackets omitted; emphases in Davis ).

We further explained that the state's theory of admissibility was that defendant "was generally interested in having rough, nonconsensual sex with women he did not know, and that interest logically makes it more likely that defendant intended to have sexual contact with M, a female stranger, when he attacked her." Id. at 254-55, 414 P.3d 887 (internal quotation marks omitted). We determined that "the chain of inferences relied upon by the state [to establish the relevance of the notes] necessarily requires character-based reasoning," because unless "one infers from the notes that defendant is more inclined to act or think in a sexually violent way than is typical the notes do not have any tendency to establish defendant's specific intent when he attacked M because nothing about the attack actually confirms that it is connected to the notes or their content." Id. at 255, 414 P.3d 887 (internal quotation marks and citation omitted). Thus, the notes were not admissible "as noncharacter evidence of ‘motive’ " under OEC 404(3). Id. at 246, 414 P.3d 887 ; see also State v. Skillicorn , 367 Or. 464, 476, 479 P.3d 254 (2021) ("If the proponent's theory of relevance requires the factfinder to employ propensity reasoning, then the trial court cannot admit the evidence based on that theory under OEC 404(3). Evidence is barred by OEC 404(3) if the chain of logical relevance connecting the evidence to the fact it is proffered to prove relies on an inference relating to a person's character or propensities." (Internal quotation marks, brackets, and citation omitted.)).

We remanded the case for the trial court to determine, based on the arguments that the state might put forth at that point, whether the evidence was relevant, and if so, to conduct OEC 403 balancing to determine if it was admissible.

Additionally, during defendant's first appeal, we rejected an argument by the state that...

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