State v. Martinez

• Decision Date: 06 October 2021
• Docket Number: A171517
• Citation: 499 P.3d 856,315 Or.App. 48
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Roberto Santiago MARTINEZ, Defendant-Appellant.
• Court: Oregon Court of Appeals

315 Or.App. 48

499 P.3d 856

STATE of Oregon, Plaintiff-Respondent,

v.Roberto Santiago MARTINEZ, Defendant-Appellant.

A171517

Court of Appeals of Oregon.

Argued and submitted January 29, 2021.

October 6, 2021

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 Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.

TOOKEY, J.

Defendant appeals a judgment of conviction for one count of first-degree sexual abuse, ORS 163.427, resulting from alleged criminal conduct toward a minor child, B. On appeal, defendant contends that "the trial court erred in admitting evidence regarding defendant's prior abuse of [a different minor,] C." In defendant's view, the trial court erred in concluding that the evidence regarding C was relevant for a nonpropensity purpose and, thereafter, admitting that evidence. We agree with defendant that the trial court erred. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

The facts relevant to our analysis are undisputed. Further, because the arguments on appeal largely concern how we should understand the trial court's ruling in light of the arguments made to the trial court, we discuss those arguments in some detail.

In 2017, B, a child under the age of 14, was sleeping in defendant's daughter's room. B reported to various individuals that, in the early morning, defendant had come into his daughter's room and touched B's breasts.

In 2019, defendant was indicted for one count of first-degree sexual abuse. The indictment alleged that defendant "did unlawfully and knowingly subject [B], a child under 14 years of age, to sexual contact by touching her breast(s)."

Defendant filed a pretrial motion in limine seeking to exclude, among other evidence, "accusations of sex abuse made against [defendant] that are separate and apart from the accusations listed in the Indictment." Defendant took the position that any such evidence is "improper character evidence under OEC 404" and that "the prejudicial effect of such evidence outweighs any probative value and such evidence would tend to confuse the issues and mislead the jury."

The state's trial memorandum argued for the admission of certain other-acts evidence. Specifically, it stated that, in September 2018, defendant was arrested for sexually abusing a different victim, C. The memorandum further stated that defendant had entered a guilty plea to two counts of first-degree sexual abuse with regard to C; that C was the daughter of defendant's cousin; that defendant would "come around at night and sneak into [C's] room"; that defendant's abuse of C progressed from touching to "oral, anal, and sexual intercourse"; that defendant's abuse of C began when C was around 11 years old; and that defendant's abuse of C culminated in C giving birth to a child, which defendant "admitted that he was the father of."

The state argued defendant's prior conduct toward C was admissible "under OEC 404(3), 404(4) and State v. Williams [, 357 Or. 1, 346 P.3d 455 (2015) ]."¹ With regard to OEC 404(3), under a heading titled " OEC 404(3) - Motive / Sexual Inclination," citing Williams , the state argued that "[e]vidence of prior bad acts may be admissible to demonstrate a motive such as defendant's sexual inclination towards a particular victim, including minor children." In the state's view, "[d]efendant's prior sexual contact and convictions demonstrate defendant's sexual inclination towards young children and therefore a motive to act upon that sexual inclination." Additionally, the state argued that defendant's prior conduct "shows that defendant's touching [B] on the breasts[ ] was not a mistake or accident but in fact had a sexual purpose."

With respect to OEC 404(4), under a heading titled " OEC 404(4) Analysis," the state argued,

"Should the court find that 404(3) does not apply, the court should then assess the merits under [OEC] 404(4). Pursuant to Williams the Court must first determine relevancy and if relevant, engage in a balancing test under 403. The fact that defendant previously exhibited sexual interest in similar victims is logically relevant to that issue. A jury could infer from this evidence that defendant had a sexual interest in children generally, and it could take that interest into account when determining if defendant acted on that interest with regard to the charged offenses."

Finally, in its conclusion, the state argued that "case law supports OEC 403 admissibility of even highly prejudicial prior act evidence where such evidence is relevant to some non-propensity purpose."

At a pretrial hearing, the state referred to defendant's conduct toward C as " Williams evidence," and argued that the defendant's conduct was admissible under OEC "404(3) as evidence showing [defendant's] motive and * * * [that] he was actually doing the sexual touching for a sexual purpose." The state also argued that, if the court was not "inclined to find under [OEC] 404(3)," alternatively, the evidence was admissible under OEC 404(4).

At the pretrial hearing, defendant responded that the evidence regarding C was irrelevant and, in any event, was inadmissible under OEC 403.

The trial court ruled:

"[T]he evidence of the abuse [of C by defendant] is undeniable. He had a child born as a result of the type of conduct that's alleged * * *. The State has an obvious need for it. I recognize that there's a fair amount of prejudice in terms of the impact the evidence is likely to have on the jury, but I don't think it's going to distract them from their ability to focus on the conduct that's alleged here.

"In other words, I'm not concerned that they're going to convict him of this absent evidence that he committed the alleged offense here because of prior incidences. I think the jury should be relatively sophisticated in that regard.

"So on a 403 balancing test, I think the probative value exceeds the prejudicial effect. And I think there is a non-propensity need for the State to have this evidence in . So unless either side wants me to get into the 404 area, I don't think I need to."

(Emphasis added.)

At defendant's trial, B testified that, among other conduct, defendant had touched her breasts while she was sleeping at his house. C testified that she was related to defendant; that defendant started inappropriately touching C when she was 11 or 12 years old; and that C had a child with defendant when she was 15 years old.

During closing arguments, the prosecutor argued that the jury should consider C's testimony in determining defendant's intent with regard to B, that the jury should "weigh in the [C] information and decide does [defendant] have a sexual attraction to kids," and that defendant's conduct toward C "started in similar circumstances" to the conduct toward B.

The jury returned a guilty verdict of first-degree sexual abuse, and the trial court entered a judgment of conviction. Defendant now appeals.

ANALYSIS

As necessary context for the parties’ arguments, we provide a brief overview of the relevant legal setting.

"Relevant evidence is generally admissible." State v. Levasseur , 309 Or. App. 745, 751, 483 P.3d 1167, clarified and adh'd on recons. , 312 Or. App. 733, 489 P.3d 630 (2021) (citing OEC 402 ). OEC 404(3) and OEC 404(4) concern the admissibility of other-acts evidence. OEC 404(3) provides:

"Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

" ‘Character’ " for purposes of evidence law " ‘means a person's disposition or propensity to engage or not to engage in certain types of behavior.’ " State v. Skillicorn , 367 Or. 464, 475-76, 479 P.3d 254 (2021) (quoting Laird C. Kirkpatrick, Oregon Evidence § 404.03, 213 (7th ed. 2020)). Thus, " OEC 404(3) bars the use of other-acts evidence ‘to prove that a person has a propensity to engage in certain types of behavior and that the person acted in conformance with that propensity on a particular occasion.’ " Levasseur , 309 Or. App. at 752, 483 P.3d 1167 (quoting Skillicorn , 367 Or. at 476, 479 P.3d 254 ). "Other acts evidence is not admissible under OEC 404(3) under * * * any * * * theory of relevance[ ] to allow a party to argue propensity." Id. at 752-53, 483 P.3d 1167. Put another way, propensity evidence is "barred by OEC 404(3), even if the proponent asserts that it is being offered to prove, for example, ‘intent’ or ‘absence of mistake or accident.’ " Skillicorn , 367 Or. at 483, 479 P.3d 254 (quoting OEC 404(3) ).

"When other-acts evidence is offered under OEC 404(3), the proponent must articulate a theory of relevance that does not logically ‘depend on propensity reasoning.’ " Levasseur , 309 Or. App. at 753, 483 P.3d 1167 (quoting Skillicorn , 367 Or. at 483, 479 P.3d 254 ; brackets omitted). "If the theory connecting the uncharged misconduct to the fact or inference it is offered to prove relates to defendant's character or propensities, it is not admissible under OEC 404(3)." Id.

Notwithstanding OEC 404(3), "[i]n criminal cases, OEC 404(4) makes other acts evidence admissible to prove a defendant's character, subject to specified rules of evidence and the state and federal constitutions."²

State v. Baughman , 361 Or. 386, 403-04, 393 P.3d 1132 (2017) (emphasis in original). That is because, although " OEC 404(3) bars propensity evidence, * * * OEC 404(3) has been superseded by OEC 404(4) in criminal cases, except as otherwise provided by the state or federal constitutions." Skillicorn , 367 Or. at 476 n. 2, 479 P.3d...