State v. Enakiev

• Decision Date: 08 August 2001
• Citation: 175 Or. App. 589,29 P.3d 1160
• Parties: STATE of Oregon, Respondent, v. Ivan ENAKIEV, Appellant.
• Court: Oregon Court of Appeals

29 P.3d 1160

175 Or. App. 589

STATE of Oregon, Respondent, v. Ivan ENAKIEV, Appellant.

D9806378M; A106911

Court of Appeals of Oregon.

Argued and Submitted June 20, 2001.

Decided August 8, 2001.

Timothy M. Bowman, Portland, argued the cause and filed the brief, for appellant.

Janet A. Metcalf, 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 HASELTON, Presiding Judge, and LINDER and WOLLHEIM, Judges.

HASELTON, P.J.

Defendant appeals from a judgment of conviction for one count of harassment, ORS 166.065(1), and one count of harassment by touching the sexual or intimate parts of another. ORS 166.065(4).¹ Defendant assigns error to the trial court's refusal, under OEC 404(2)(a), to allow him to present evidence of his character for sexual propriety. We agree with defendant that the court erred in excluding the proffered character evidence and that the error was not harmless. Accordingly, we reverse and remand for a new trial.

This prosecution arose from interactions between defendant and the complainant, D, on the evening of December 15, 1998. Defendant, a recent immigrant from Moldavia, was living with his family at an apartment complex in Washington County. D was also a tenant in the complex. On the evening of December 15, defendant was near the apartment complex's garage facilities preparing to vacuum his car when D drove to her garage to retrieve Christmas decorations. The two began to talk, speaking briefly about their children.

At trial, D testified that she became uncomfortable during the conversation, which she said defendant initiated, because defendant "was asking * * * so many questions" and because his eyes dropped to her chest on a couple of occasions. D further testified that, when she went to the back of her garage to retrieve the holiday decorations, she heard the garage door start to close. Fearing the defendant was going to rape her, D went to the front of the garage and confronted defendant, telling him: "I have four people waiting for me right now." D testified that, in response, defendant said, "You have nice breasts. I want to touch your breasts" and reached out and grabbed her breast.

Defendant's description of the encounter was different. At trial, defendant testified that D initiated the conversation, during which they talked about their children and defendant's ability to speak Russian.² According to defendant, while D was at the back of her garage, the light in her garage began to blink, indicating that the light, which operates on a timer, was about to go out. Consequently, D asked defendant to push a button to keep the light from shutting off, which he did. D then came from the back of the garage, and asked defendant to press the button again. As defendant turned to press the button, his shoulder brushed against D's body. Defendant said he was sorry in Russian, and D said something to him in response, put some boxes in her car, and drove away.

Defendant was charged with harassment and harassment by touching the sexual or intimate parts of another under ORS 166.065.³ At trial, defendant sought to put on testimony from six witnesses—defendant's wife, the pastor of his church, the pastor's wife, the associate pastor, a male friend of defendant, and a young woman who had known defendant before he immigrated from Moldavia—each of whom would testify as to defendant's character for sexual propriety. The trial court, citing OEC 404(2)(a), excluded the testimony.

"It's my opinion and I've held under (2)(a) before that a pertinent trait of character is one for peaceful, law-abiding, honest, truthful, temperate, not beyond that. So [to] bring it in to show that he's of a good moral character or wouldn't do a thing like this, it does not come in."

In response, defendant made an offer of proof that each of the six witnesses would testify that he or she: (1) had known defendant for a period of years; (2) had observed defendant in social situations; (3) had had the opportunity to form an opinion about defendant's character with respect to sexual propriety; and (4) believed that defendant's character in that respect is excellent. Ultimately, the jury found defendant guilty on both counts. The trial court merged the two counts and sentenced defendant to two years of probation.

On appeal, defendant assigns error to the trial court's exclusion of his proffered "sexual propriety" character evidence under OEC 404(2)(a). Defendant further argues that, because his credibility was central to his defense, the error was not harmless:

"This is a classic case of `he said/she said.' No evidence is in the record to corroborate [D's] allegations. Evidence concerning [defendant's] excellent character in respect to sexual propriety, standing alone, would be enough to raise a reasonable doubt as to his guilt."

The state, in response, concedes that it was error to exclude defendant's "sexual propriety" evidence under OEC 404(2)(a), but argues that that error was harmless. In addition, the state suggests that, even if the error was not harmless, the evidence was nevertheless properly excluded under OEC 701—and that, while that ground for exclusion was not raised below, we should remand the case for the trial court to assess, in the first instance, the admissibility of the evidence under that rule.

We begin by determining whether, as a matter of law, evidence of defendant's "sexual propriety" was properly admissible under OEC 404(2)(a).⁴ See ORS 136.310 (construction of rules of evidence is a question of law). OEC 404, which governs the admissibility of character evidence offered by a criminally accused, states, in relevant part:

"(1) Evidence of a person's character or trait of character is admissible when it is an essential element of a charge, claim or defense.

"(2) Evidence of a person's character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:

"(a) Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same[.]"

The form of evidence offered under OEC 404(2)(a) is governed by OEC 405(1):

"(1) In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct."

Thus, in instances where character is not "an essential element of a charge, claim or defense," character evidence proffered by the defense under OEC 404(2)(a) is admissible only if: (1) the evidence concerns a "trait of character"; (2) that trait is "pertinent" to the crime charged; (3) the evidence is offered in the proper form under OEC 405, and (4) the evidence was not of "specific instances of conduct." See State v. Reeder, 137 Or.App 421, 423-25, 904 P.2d 644 (1995), rev. den. 322 Or. 598, 910 P.2d 1110 (1996) (the defendant could not prove character trait with specific instances of conduct). Each of those cumulative requirements is satisfied here.

In State v. Marshall, 312 Or. 367, 823 P.2d 961 (1991), the court delineated the types of evidence that reflect a "trait of character":

"Character evidence, therefore, is evidence of a particular human trait, such as truthfulness, honesty, temperance, carefulness, or peacefulness, etc. A person's character with respect to truthfulness means that person's propensity to tell the truth in all the varying situations of life. A person's character with respect to carefulness means that person's propensity to act with care in all the varying situations of life." Id. at 372, 823 P.2d 961.

Defendant, relying on Marshall, suggests that "sexual propriety" is just such a trait:

"Is `sexual propriety' a character trait? Looking at the non-exclusive list of character traits mentioned in Marshall, it would certainly seem that `sexual propriety' would fit within that category. `Truthfulness' has to do with speaking the truth; `honesty,' assuming it is not merely redundant of truthfulness, has to do with not stealing or cheating others, see State v. Bailey, 87 Or.App. 664, 667-68, 743 P.2d 1123 (1987); `temperance' has to do with moderation and self-control, particularly in respect to the use of alcohol or other intoxicants; `carefulness' implies the exercise of care and attention in all of one's activities, and interestingly, has only slight positive moral connotations; and `peacefulness' has to do with tranquility and non-violence. `Sexual propriety' has positive moral connotations much like truthfulness and honesty, it suggests self-control relative to sexual matters much like temperance suggests self-control relative to intoxicants, and it implies sexual non-aggressiveness and consideration for others much like peacefulness suggests these qualities in respect to the use of physical force. `Sexual propriety' is a character trait."

See also OEC 405 Commentary (1981) (describing permissible methods of proving character; noting that historically "character has been regarded primarily in moral overtones susceptible of proof by reputation evidence (is the person chaste, peaceable, truthful?)") (emphasis added).

We agree. Evidence of a person's character with respect to sexual propriety evinces that person's propensity to act in a sexually proper manner "in all the varying situations of life." Marshall, 312 Or. at 372, 823 P.2d 961.⁵ In that sense, sexual propriety is materially indistinguishable from the other examples of character traits enumerated in Marshall and is properly deemed a character trait.

Evidence of defendant's sexual propriety is admissible, however, only if it is "pertinent." OEC 404(2)(a). As used in OEC 404(2)(a), a "pertinent" character trait is one that is relevant to the offense charged. State v. Bailey, 87 Or.App. 664, 667, 743 P.2d 1123 ...