State v. Levasseur

• Decision Date: 10 March 2021
• Docket Number: A166406
• Citation: 483 P.3d 1167,309 Or.App. 745
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Ricky Allen LEVASSEUR, Defendant-Appellant.
• Court: Oregon Court of Appeals

309 Or.App. 745

483 P.3d 1167

STATE of Oregon, Plaintiff-Respondent,

v.Ricky Allen LEVASSEUR, Defendant-Appellant.

A166406

Court of Appeals of Oregon.

Argued and submitted August 1, 2019.

March 10, 2021

Meredith Allen, 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.

Michael A. Casper, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Mooney, Judge.^*

MOONEY, J.

A jury convicted defendant of first-degree kidnapping, ORS 163.235, attempted first-degree sodomy, ORS 163.405(2)(b), first-degree sexual abuse, ORS 163.427, and fourth-degree assault, ORS 163.160(2). He appeals the trial court's judgment of convictions, raising five assignments of error. Because we conclude, as defendant contends in his first two assignments of error, that the trial court erred in admitting evidence of defendant's prior convictions (other-acts evidence)¹ under OEC 404(3), and because that admission was not harmless, we reverse defendant's convictions on that basis and do not address defendant's fourth or fifth assignments of error. We briefly address defendant's third assignment of error below.

We review the trial court's OEC 401 relevancy determinations for errors of law. State v. Titus , 328 Or. 475, 481, 982 P.2d 1133 (1999). We likewise review the court's decision to admit other-acts evidence for errors of law. State v. Baughman , 361 Or. 386, 406, 393 P.3d 1132 (2017) ; State v. Wright , 283 Or. App. 160, 168, 387 P.3d 405 (2016). And, finally, we review the court's ultimate determination as to whether evidence is unfairly prejudicial under OEC 403 for abuse of discretion. State v. Towers , 224 Or. App. 352, 357, 197 P.3d 616 (2008).

The relevant facts are undisputed. During the late-night hours of November 4, 2015, the victim in this case, S, was walking home from her friend's house along Highway 99 in Eugene when she spotted a white car driving northbound. She noticed that the driver was watching her over his shoulder. After turning west down a poorly lit road, she saw a man watching her from the side of the street. She suspected that he was the driver of the white car. He was large and wore a black "skeleton" face mask and a dark hooded sweatshirt. S saw his "light" eyes and facial hair protruding from underneath the mask. He greeted her.

Frightened by the man, S crossed the street. He also crossed. He asked if she was lonely, and she told him to leave her alone. He refused. Instead, he approached her, grabbed her from behind, tackled her to the ground, struck her in the face, and forced her head into the dirt. S smelled something "chemically." Afraid that the man was using chloroform, S tried hitting, scratching, and screaming, but he overpowered her and pinned her to the ground. She stopped screaming and momentarily surrendered to the man's force. He took her up a berm away from the street and threw her on the ground inside a small clearing, which was surrounded by a chain link fence, blackberry bushes, and trees. Its location was "higher up [from the street] and away from sight."

S again began to resist, and the man covered her eyes by pulling her stocking cap over her face and placing his own skeleton mask over her head. The two then fought against the blackberry bushes, which scratched S's body. The man straddled S from behind, squeezed her in between his knees, and groped her breasts, which had become exposed as he assaulted her. The man told S that she had a choice between giving him "oral sex or anal sex." S responded by saying that she lived nearby, hoping that would cause him to take her home where she could trigger her security alarm and alert the police. He replied that he would take her home and make her watch as he raped her mother and sister.

The man picked S up by her shoulders and walked her blindfolded toward the street. S resisted, slipped out of the stocking cap and skeleton mask, and attempted to run away, scratching his face and pushing him backward. The man grabbed her, but S slid out of her shirt and sweatshirt. She was finally able to flee, leaving some of her personal belongings at the scene, including her purse, shirt, sweatshirt, stocking cap, and a short hair extension. Once home, she called the police.

The police immediately began their investigation. They brought S to the hospital and provided her with a sexual assault examination. Nurses scraped her nailbeds to preserve DNA evidence, and they documented her wounds. She had scratches on her torso, face, and lips, a bruise on her eye

, and a large bump on her head. Officers searched the scene of the assault and found the personal belongings that had been left behind as S ran from defendant. They also found a skeleton face mask. The police sent the mask and S's fingernail swabs to the Oregon State Police crime lab for DNA testing. Several months later, the extracted DNA returned a match to defendant, who was in the state's DNA database. A later analysis of DNA taken directly from defendant's cheek swab confirmed the match. Defendant was arrested and charged with first-degree kidnapping, attempted first-degree sodomy, first-degree sexual abuse, and fourth-degree assault.

We turn to the other-acts evidence. Defendant had a prior conviction that involved an incident that occurred in the early morning hours of February 11, 1989. Defendant had stopped his vehicle alongside a 17-year-old girl and offered her a ride home. She refused and kept walking, but he drove ahead to ambush her. As she unknowingly approached defendant's location, he emerged from the car with a knife, telling her to do what he said. She tried to get away, but he grabbed her arm and forced her into the backseat. He then drove her to a secluded area and raped her.

Defendant's second prior conviction was based on events that occurred in the early morning hours of December 2, 2003, when defendant drove to a parking lot where he selected another victim as she walked to work. On that occasion, he wore a hooded sweatshirt, a stocking cap, and a surgical mask over his face. The victim noticed defendant following her, and she tried to flee. Defendant reacted by chasing her through an abandoned alley, tackling her, and pinning her to the ground. The victim screamed for help, but defendant told her that he would hurt her if she did not submit to him. He then sexually assaulted her. When a bystander ran to the scene, defendant stopped and fled.

The question of whether to admit evidence of defendant's prior crimes came before the trial court on fully briefed, dueling motions presented at the same pretrial hearing: a motion to allow prior-acts evidence from the state and a motion to exclude prior-acts evidence from defendant. The motions contained similar representations of the prior crimes as well as the conduct underlying the pending charges. Counsel stipulated to those summary descriptions at the hearing. Defendant argued that the evidence should be excluded pursuant to OEC 404(3) because it was not relevant for a nonpropensity purpose and that, even if it were, the danger of unfair prejudice substantially outweighed any probative value. Defendant further argued that the evidence was not admissible under OEC 404(4), because that rule applies only to child sexual abuse cases and is, therefore, not applicable. The state argued that the convictions were relevant to prove (1) defendant's identity and (2) his motive and intent, and that any potential prejudicial effect did not outweigh the probative value of that evidence. It argued further that, in any event, the evidence was admissible under OEC 404(4).

The trial court took the matter under advisement and later ruled from the bench. The court explained its analysis, including, in particular, its use of the questions articulated in State v. Johns , 301 Or. 535, 725 P.2d 312 (1986), overruled by State v. Skillicorn , 367 Or. 464, 479 P.3d 254 (2021),² in determining relevance, and the balancing process it conducted under OEC 403 to ensure fairness. Specifically, it found that defendant's prior crimes and those alleged in this case were sufficiently similar for the other-acts evidence to be relevant to his sexual intent, but not sufficiently similar to prove identity. It also found, as part of its analysis, that the probative value of the prior crimes was substantial, and that the value was not substantially outweighed by the danger of unfair prejudice. The court therefore ruled that it would allow evidence of the prior crimes as evidence of intent. At the time the court ruled, it also advised counsel that it would instruct the jury not to consider the other-acts evidence unless it first found that defendant had, in fact, committed the acts alleged in the current case and then only as evidence of defendant's intent.³ The court did not proceed to an OEC 404(4) analysis because, given its ruling under OEC 404(3), it did not need to do so.

At trial, defendant testified and denied any involvement in the incident. The state presented S's testimony about the details of the attack and the attacker's features, all of which were consistent with defendant's appearance, including his facial hair, build, and height, the prior-acts evidence, DNA evidence, written statements that defendant had made during a sex offender treatment program explaining his desires to kidnap and sexually assault women on a random basis, photographs of defendant's facial scratches, and photographs showing that defendant had purchased the skull mask found at the scene.

At the close of all the evidence, defendant moved for a judgment of acquittal on the first-degree kidnapping count, arguing that the state did not present evidence from which a reasonable juror could infer that he actually kidnapped S. The...