State v. Leach

• Decision Date: 30 August 2000
• Citation: 9 P.3d 755,169 Or. App. 530
• Parties: STATE of Oregon, Appellant, v. Ronald Leslie LEACH, Respondent.
• Court: Oregon Court of Appeals

9 P.3d 755

169 Or. App. 530

STATE of Oregon, Appellant, v. Ronald Leslie LEACH, Respondent.

(98082072F; CA A106514)

Court of Appeals of Oregon.

Argued and Submitted May 18, 2000.

Decided August 30, 2000.

Katherine H. Waldo, Assistant Attorney General, argued the cause for appellant. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Chris W. Dunfield, Corvallis, argued the cause and filed the brief for respondent.

Before De MUNIZ, Presiding Judge, and HASELTON and WOLLHEIM, Judges.

HASELTON, J.

The state appeals from a pretrial order excluding evidence in a prosecution for child sex abuse. The trial court concluded that OEC 404(3) precluded the admission of testimony describing two incidents in which defendant, inter alia, questioned the complainant and two of her young friends about their physical development. We affirm in part and reverse in part.

Defendant is charged with three counts of sexual abuse in the first degree, ORS 163.427, involving his step-daughter, S. The first count alleges conduct occurring between June 1992 and June 1995, when S was between nine and 12 years old, and the second and third counts allege conduct occurring between June 1995 and June 1997, when S was between 12 and 14 years old.

Before trial, defendant moved to exclude evidence of two incidents that both occurred in the summer of 1993 when S was 10. In the first incident, S and her friend, A, who was also about 10 years old, were watching television with defendant and S's mother. As they watched, defendant turned to the girls and asked them "if they had any body hair." A did not reply and could not recall whether S replied.

In the second incident, which occurred at about the same time, defendant asked S and her friend B, who was also about 10, whether they had any pubic hair. Both girls replied that they did. Defendant then asked B if he "could see hers" and pulled on the elastic waistband on the front of her panties. When B slapped defendant's hands, he let go.

Defendant contended that evidence of those incidents should be excluded under OEC 404(3)¹ as being irrelevant for any purpose other than as showing defendant's propensity for child sexual abuse. Defendant further argued that, to the extent the state contended that the evidence was probative of intent, intent was not a disputed matter—i.e., defendant's position was that the alleged abuse never occurred; he did not claim that any touching was innocent or accidental. In all events, defendant asserted, evidence of the alleged prior incidents could not meet the cumulative five-fold test for relevance set out in State v. Johns, 301 Or. 535, 725 P.2d 312 (1986). Finally, defendant contended that, even if the evidence were somehow relevant, its probative value would be substantially outweighed by the potential of undue prejudice and confusion. See OEC 403.

The state responded that evidence of defendant's comments to S was relevant not only to intent but also to "plan" or "preparation." The prosecutor argued, particularly, that "defendant was trying to desensitize the victim in order to perform the crimes"—that defendant was "engaging in grooming type of behavior with the victim." The state further argued that defendant's remarks to A and B and his conduct towards B were also relevant to intent and corroborated S's account of the two 1993 incidents. Finally, the state argued that OEC 404(4) precluded any balancing of probative value versus prejudicial impact in these circumstances.² The trial court granted the motion to exclude, reserving its ability to revisit that ruling depending on developments at trial:

"As already expressed by the Court, the rulings here on a Motion to Exclude are not rulings of absolute exclusion because certain facts or issues which are raised at trial may make the prior acts admissible for a different reason than presently anticipated.

"However, absent such additional reasons for admissibility, the two acts referenced in Defendant's motion would only have relevancy to show Defendant's bad character or Defendant's propensity to act in conformity therewith. Therefore, pursuant to OEC 404(3), the Defendant's motions are granted. The Court would also state that even if the Court could find that Defendant's referenced prior acts were admissible to show plan or preparation by desensitization as suggested by the State, the Court would still have to find under OEC 403 that the potential prejudice of the prior acts substantially outweighs any probative value."

The state appeals. For purposes of analytic coherence, we consider, in turn: (1) Defendant's comments to S; (2) defendant's comments to A and B; and (3) defendant's conduct in tugging at B's panty waistband.

On appeal, as before the trial court, the state argues primarily that evidence of defendant's questions and comments to S about "body hair" and pubic hair is admissible as relevant to defendant's intent and to "plan" or "preparation."³ We agree with the trial court that that evidence is not relevant to intent. However, the trial court erred, on this record, in concluding that the evidence was not relevant to "plan" or "preparation." Moreover, to the extent the trial court invoked "balancing" under OEC 403 as an alternative basis for excluding the evidence, that alternative ground was also erroneous. OEC 404(4).

We note, at the outset, that there is a substantial and unresolved question as to whether "prior bad acts" evidence can ever be admitted as being relevant to intent where, as here, the defense is that the charged crime never occurred.⁴ That is, this is not a case of allegedly "innocent" or "accidental" ambiguous conduct. We need not resolve that question, however, because the proffered evidence does not satisfy Johns's cumulative relevancy test:

"1) Does the present charged act require proof of intent?

"2) Did the prior act require intent?

"3) Was the victim in the prior act the same victim or in the same class as the victim in the present case?

"4) Was the type of prior act the same or similar to the acts involved in the charged crime?

"5) Were the physical elements of the prior act and the present act similar?" 301 Or. at 555-56, 725 P.2d 312.

Here, at the least, evidence of defendant's prior statements to S did not meet Johns's fourth (similarity of type of act) and fifth (similarity of physical elements) requirements. Asking a 10-year-old girl questions about her sexual development in the presence of her mother or friends is not the same or similar type of act as the intimate physical contact, constituting sexual abuse in the first degree, that is charged here.⁵ Moreover, although defendant allegedly commented on S's sexual development while engaging in the charged crimes, the differences in "physical elements" are manifest: The prior incidents involved comments and questions to S, without any physical touching, in the presence of others. Consequently, the trial court correctly concluded that evidence of defendant's alleged remarks to S was irrelevant to intent.⁶

The same analysis does not, however, preclude admission of the same evidence as proof of "plan" or "preparation." Although defendant seems to assume otherwise, Johns's requirements do not apply to all "non-propensity" bases for admissibility, including those specifically identified in OEC 404(3). See, e.g., State v. Hampton, 317 Or. 251, 257, 855 P.2d 621 (1993) (proof of the defendant's "parole status," including fact that there was an outstanding warrant for his arrest for a parole violation, was admissible as relevant to motive in the defendant's trial for assault of a police officer: "[T]he evidence of defendant's parole status tended to prove a relevant, noncharacter purpose that defendant had a motive to assault the officer"). Rather, Johns, by its terms, controls only where "prior bad acts" evidence is offered to prove intent. See Johns, 301 Or. at 535, 725 P.2d 312. See also State v. Pratt, 309 Or. 205, 210-11, 785 P.2d 350 (1990).⁷ Thus, the fact that the proffered evidence does not meet Johns's fourth and fifth requirements does not mean that it is not relevant to "plan" or "preparation."

We return to the state's theory of relevance: Defendant's comments to S were a part of a scheme to "desensitize" her to sexual subject matter so that she would ultimately be more susceptible to defendant's advances. In a word: grooming. That theory was explicitly presented to the trial court, see 169 Or.App. at 533, 9 P.3d at 757, and defendant's only relevance response was that the evidence did not satisfy Johns.⁸ On appeal, defendant's only relevance response is to invoke Johns. Defendant did not argue to the trial court—and does not argue on appeal—that, to demonstrate relevance, the state was required, as a foundational matter, to present expert testimony that defendant's comments constituted "grooming." See State v. Stafford, 157 Or.App. 445, 972 P.2d 47 (1998),rev. den. 329 Or. 358, 994 P.2d 125 (1999) (addressing related issues). That issue simply was not before the trial court and, in this posture, is not before us.⁹

In sum, the trial court concluded, without elaboration, that the evidence was irrelevant to "plan" or "preparation," see 169 Or.App. at 534, 9 P.3d at 758, and the only discernible basis in the record for that ruling is erroneous. Defendant urges no alternative basis for affirmance with respect to relevance—and, in this posture, we perceive none.¹⁰ Consequently, we conclude that the trial court erred in determining that evidence of defendant's alleged comments to S was irrelevant to "plan" or "preparation." Further, to the extent that the trial court purported to rule, alternatively, that the evidence, if relevant, could be excluded under OEC 403 as more prejudicial than probative, such "balancing" was error. OEC 404(4).

We proceed to the admissibility of defendant's comments to S's friends, A and B. The state argues, as it did to the trial...