State v. Davis

• Decision Date: 05 October 1981
• Docket Number: No. 10-79-11533,10-79-11533
• Citation: 54 Or.App. 133,634 P.2d 279
• Parties: STATE of Oregon, Respondent, v. Billy Eugene DAVIS, Appellant. ; CA 18362.
• Court: Oregon Court of Appeals

Page 279

634 P.2d 279

54 Or.App. 133

STATE of Oregon, Respondent, v. Billy Eugene DAVIS, Appellant.

No. 10-79-11533; CA 18362.

Court of Appeals of Oregon.

Argued and Submitted April 8, 1981.

Decided Oct. 5, 1981.

David E. Groom, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Richard David Wasserman, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., and William F. Gary, Deputy Sol. Gen., Salem.

Before BUTTLER, P. J., and WARDEN and WARREN, JJ.

WARREN, Judge.

Defendant was convicted by a jury of first degree rape, ORS 163.375. The alleged victim was his daughter's 13-year-old friend. Defendant assigns as errors the admission of testimony concerning prior sexual contact between defendant and young girls other than the alleged victim and the admission of a photograph taken by defendant of his daughter posing in the nude. We reverse.

The state concedes error in the admission of the photograph of defendant's daughter, but argues that the error was harmless. Because on retrial that error is not likely to recur, we do not discuss that contention.

In State v. Manrique, 271 Or. 201, 531 P.2d 239 (1975), the Supreme Court summarized the reasons for the general rule excluding evidence of other crimes or bad acts:

"The fundamental rule of evidence is that in order to be admissible evidence must be relevant, i. e., have some probative value to prove some issue in a case, and that all relevant evidence is admissible unless it falls within one of the so-called 'exclusionary' rules of evidence. See Trook v. Sagert, 171 Or. 680, 688, 138 P.2d 900 (1943), and State v. Kristich, 226 Or. 240, 244, 359 P.2d 1106 (1961). It is equally well established that evidence may be rejected, although relevant, if its probative value is outweighed by various other considerations, including the danger of prejudice. McCormick on Evidence 438-39, § 185 (2d ed 1972). See also State v. Zimmerlee, 261 Or. 49, 54, 492 P.2d 795 (1972), and State v. Harrison, 253 Or. 489, 491, 455 P.2d 613 (1969).

"For this reason it is the general rule in criminal cases that the state may not offer evidence that the defendant was guilty of other crimes in addition to the crime for which he is charged. Although evidence that a defendant has committed other crimes may have some probative value in that it may be 'more likely' that such a person committed the crime in question, it is generally recognized that the danger of unfair prejudice to the defendant outweighs any such probative value. See McCormick on Evidence, supra at 477, § 190. * * *

" * * *

"Most, if not all, of the exceptions are based implicitly upon the idea that evidence of other crimes may be relevant for some purpose other than to show the probability that the defendant committed the crime for which he is being tried because he had also committed other crimes. See McCormick, supra at 447, § 190. Thus, these exceptions involve cases in which the courts recognize, in effect, that the probative value of such evidence when offered for such a purpose outweighs the danger of prejudice to the defendant."

See also State v. Hockings, 29 Or.App. 139, 145, 562 P.2d 587, rev. den. 279 Or. 301 (1977).

While evidence of other crimes or sexual acts with others than the victim may tend to prove that defendant has a lustful disposition and is, therefore, more likely to have committed the crime in question, such evidence is, with limited exceptions, inadmissible. State v. Pace, 187 Or. 498, 502, 212 P.2d 755 (1949); State v. Urlacher, 42 Or.App. 141, 144, 600 P.2d 445 (1979). In cases involving sex crimes, the inflammatory nature of the crime itself renders the potential for prejudice high, and the exclusionary rule is strictly applied. Youngblood v. Sullivan, 52 Or.App. 173, 176-177, 628 P.2d 400, rev. den. 291 Or. 368 (1981); State v. Sicks, 33 Or.App. 435, 438, 576 P.2d 834 (1978).

Exceptions to the general rule excluding evidence of prior sexual acts between defendant and others have been recognized in two circumstances: when the prior acts and those of which the defendant stands accused are so similar as to indicate a modus operandi which identifies the defendant as the probable perpetrator of the crime charged, or to rebut a contention by the defendant that admitted sexual acts were consented to by the victim. State v. Johann, 34 Or.App. 363, 366, 578 P.2d 810, rev. den. 283 Or. 235 (1978); Youngblood v. Sullivan, supra, 52 Or.App. at 177, 628 P.2d 400. In the present case, defendant denied sexual intercourse with the victim, and neither identity nor consent were in issue.

The state, however, contends defendant opened the door to admission of the disputed testimony by placing his character in issue by giving testimony on direct examination regarding his skills as a father, ¹ by his testimony on cross-examination that when he told several girls that he wanted them to be his girlfriends he was "joking around," ² and by offering testimony of two defense witnesses to the effect that they had never seen inappropriate sexual contact between defendant and other girls the same age as the victim. The trial court concluded on the state's urging that that evidence provided an adequate basis for the admission of rebuttal testimony concerning defendant's character. The state then offered over defendant's objection the testimony of six young girls, including his daughter, concerning particular prior acts of sexual misconduct by him.

In State v. Ewing, 174 Or. 487, 503, 149 P.2d 765 (1944), the Supreme Court noted that when defendant puts his character clearly and expressly in issue, evidence of bad character is admissible. In Ewing, the defendant, charged with sodomy, denied all charges. On direct examination he testified: "I don't know any reason why I should be doing such a thing," and later, during cross-examination, he said: " * * * (M)y makeup is such a nature that I would not attempt such a thing or think about doing such a thing." The prosecution was permitted over objection to offer in rebuttal testimony of four witnesses concerning specific acts of sexual misconduct with others. The Supreme Court held that the defendant's testimony did not put his character in issue, but, even if it had, the prosecution was not entitled to prove specific acts of sexual misconduct with others. The court stated:

"To admit evidence of bad character against an accused it is necessary that he shall already have put his character clearly and expressly in issue. Underhill, Crim.Ev., 4th ed., § 167, p. 293; People v. Hinksman, 192 N.Y. 421, 85 N.E. 676. An answer by a defendant on cross-examination to the effect, in substance, that he is not that kind of man does not put his character clearly and expressly in issue, but if character had been put in issue, the prosecution would not have been entitled to prove other specific misconduct by the defendant with other persons in this type of case. * * * Again, it is provided that a witness may be impeached by certain specified methods, 'but not by evidence of particular wrongful acts,' except that former conviction of crime may be shown. O. C. L. A. § 4-711 (now ORS 45.600). Concerning that statute, this court has said that it

" ' * * * states the law plainly and does not permit evidence of "particular wrongful acts," except it may be shown that the witness has been convicted of a crime. If other particular wrongful acts on the part of a witness, although the witness may be a defendant in the case, are permitted to be shown, then it would necessitate the investigation of the matters with which the witness is accused and introduces collateral cases. A defendant witness cannot be cross-examined at large to other offenses: State v. Deal, 52 Or. 568 (98 Pac. 165); State v. Holbrook, 98 Or. 43, 45, 63 (188 Pac. 947, 192 Pac. 640, 193 Pac. 434).' State v. Motley, 127 Or. 415, 272 P. 561. And see State v. White, 48 Or. 416, 87 P. 137; Redsecker v. Wade, 69 Or. 153, 134 P. 5, 138 P. 485, Ann.Cas. 1916A, 269.

" * * *

"The cross-examination to which we have referred was improper either for the purpose of showing bad character, or for the purpose of disproving defendant's statement that he would 'never think of such things.' When the State went beyond cross-examination and in rebuttal introduced evidence of four witnesses concerning specific acts of misconduct, more serious error was committed." 174 Or. at 503-504, 149 P.2d 765.

Here, defendant's direct testimony that he had a good relationship with his daughter and was a good father did not "clearly and expressly" put his character in issue in any way relevant to his possible guilt or innocence of the crime charged. It did not "open the door" to impeachment evidence of bad character. Similarly, his testimony on cross-examination that he was joking when he asked the victim and others to be his girlfriends did not place his character in issue, but if it did, it did not open the door for impeachment evidence of bad character by evidence of specific acts of sexual misconduct. ORS 45.600; ³ State v. Ewing, supra, 174 Or. at 504, 149 P.2d 765. While the state may introduce evidence of a defendant's bad character if the defendant in his case-in-chief opens the door by offering evidence of his good character, as we stated in State v. Jackson, 31 Or.App. 645, 649, 571 P.2d 523 (1977), rev. den. 281 Or. 323 (1978), the state " * * * may not open its own door."

Finally, the state contends that by eliciting from two defense witnesses testimony that they had observed defendant playing or wrestling with his daughter, the victim and other young girls, but had seen no inappropriate contact between them, defendant had clearly and expressly placed his character in issue. The testimony elicited from these witnesses is like that in State v. Henley, 27 Or.App. 607,...